The Nemo Dat Rule Issues - Essay Example

? Nemo dat rule Institition Many cases have come and go and different rulings have been given to different cases. There have always been some rules and laws in the legislative that require revision due to some deficits they possess. One of them is the nemo dat rule. Many businesses have lost cases and many customers have lost cases in cases dealing with fraud and sale of goods. In accordance to the sale of goods acts, any individual is expected to be sold a good while in a good condition and should have the transfer of goods from the seller to the buyer. All in all, the main purpose of any purchase is to have the transfer of the given good from the seller to the buyer (Akseli 2000, p.21). In accordance to the case of Rohit Kulkarni v. Manor Credit (Davenham) Ltd, we get to see the application of the sales in goods act and the hire purchase Act. In the case, Manor credit sold a Mercedes car to Gwent via hire purchase terms. When Dr. Kulkarni approached Gwent, it sold to the doctor the car. Later on, when Gwent failed to pay as per the hire purchase agreement, Manor decides to repossess the car. The doctor is then left without a car and no refund (Crosling 2000, p.83). Therefore, Dr. Kulkarni takes Manor Credit to court to have refund of his money. A lot of decisions come in place in this case to decide who the rightful winner of the case is (Clarke 2005, p.63). In addition, there have been several cases like this that have been in court and different ruling made leaving many to argue if nemo dat rule is an efficient law to be used in the legal system. From the above case, Dr. Kulkarni wanted refund for the car which he had bought from Gwent, but according to the law, Gwent was not the sole owner of that property (Bar 2011, p.63). Since sale of property involves the transfer of commodity from one owner to the other, since Gwent did not have the rightful papers to prove they were the owners of the car, Dr. Kulkarni is left disadvantaged. In accordance to hire purchase act, the owner of the given commodity can repossess the commodity when the buyer has not paid nine tenths of the price agreed upon hire purchase (Clarke 2005, p.54). This law proves unfair in this case since an individual would have already paid money worth more than even the cash price of a given commodity and the owner repossess (Hoffman 2006, p.161). Though the hire purchase act, advocates for that, its innocent victims who would have lost their money and time buying that commodity. Such a law should either be abolished or changed so as not to belittle the innocent ones in the society. Since the owner of a given commodity is the one regarded as the one who has the rightful details to be the owner, take for instance in the above case, the owner is Manor credit (Connolly 2000, p.67). The nemo dat rule is also a good rule when view from the business point of view. Imagine the business person had invested his money in dealing in the hire purchase business and may be having debts and loans to repay, for a given customer to default payment indicate that the given business will be the verge of making laws. Hence by the ninth tenth rule applying is a way of making businesses not to enter into situations that they make loses (Gillies 2000, p. 78). It is hence disadvantageous to the customer who had the product since he or she would not be compensated by the business person (Luisa 2003, p.73). Such a law should be changed so that in the event that the owner repossesses his or her product, then the customer should have way of not coming out of the agreement worse than he or she entered. Such a law is only disadvantageous to the business people and disadvantageous to the customers. The given business person can be able to repossess and resell the given commodity and still get his or her money while the customer succumbs his or her loses (Howells 2006, p.45). In continuing to analyze the Nema dat rule, the doctor in the above case may have been favored by the ruling that stated that he might have been repaid if the commodity in question was unconditional (Atiyah 2010, p.26). The Mercedes car which the doctor had bought from Gwent did not have a number plate (Bar 2011, p.34). Since it was the role of the owner to ensure the car had a number plate before selling to the final consumer, the original owners of the car were hence unfavored in the case due to not providing full details of their product. A full owner is supposed to provide all details regarding a given product while selling and not selling it half by half. That is why the case was somehow favored on the doctor’s side when it came to this law. All in all, the rule seems to be advantageous in some cases and disadvantageous to others in some cases (Howells 2011, p.58). In accordance to Shogun Finance v Hudson case, a unknown person approached Shogun Finance limited with fake identity and driving license of a person names Mr. Patel. The unknown person wanted to buy a Mitsubishi Shogun from the company at hire purchase (Instituut 2011, p.63). After the company ran details on Mr. Patel, they found no flaws in the detail the unknown person gave and entered into a hire purchase deal with him. The unknown person after getting the car went and sold the car to a person named Mr. Norman Hudson (O’Cinneide 2010, p.115). Later on, the company realized about the fake identity they had been given, and hence wanted to repossess their car. The case eventually went to court since Mr. Hudson claimed to be the real owner of the car after he was sold by the unknown guy according to the hire purchase act of 1964. On the other hand, the company wanted conversion of their car from Mr. Hudson due to selling the car to an individual with fake identity. This case bears resemblance to the prior case and proves how the Nemo dat rule can be disadvantageous or advantageous (Instituut 2011, p.234). In both of the cases, the final person who got the product is disadvantaged as the companies repossessed the products for conversion. Nema dat rule is seen to be disadvantageous in both scenarios as the innocent person is left ripped off after the ruling while the business repossessed their wealth. In all cases, the con artists is left out of the context since they are nowhere to be found and hence two parties that had earlier on not entered into a hire purchase agreement (Gillies 2004, p.67). The act should be amended in such a way that both parties gain favour of the ruling. Since the company was not aware of the fraudsters while being ripped off, legally they should not transfer their fury on the innocent person who bought the given commodity from the fraudster. In addition, since the buyer who bought the good from the fraudster did not know of the status of which the commodity was bought and the truth about the product, many at times the legal system is usually unfair to them Imagine, such an individual already paid in full for the commodity to the fraudster and then the company comes to repossess the commodity (Kelly 2002, p. 173). The final consumer is the one who finally gets ripped off in accordance to the Nemo dat rule. There should come a way in which the rule should be adjusted to fulfill the losses of the two parties that were ripped off by the fraudsters in both cases (Connolly 2000, p.87). In as much as many may argue that Nema dat rule is an advantageous law when it comes to repossession of items, but when a third party is involved that was not part of the initial agreement, problems emanate. Judges and the jury usually find difficult decision on such cases and take very long time since, in whichever side they will base their decision, and unfairness will be read (Sauveplanne 2000, p.67). Nema dat rule has become a subject of talk in ruling cases that involve hire purchase and repossession since it turns out to be unfair in other cases. Though in direct cases between owner of a given commodity and the person of whom he or she sells the commodity to, deciding on such a case might be easy (Vaines 2005, p.110). The problem results with inclusion of an innocent third party in the case whom has been ripped off his or her money plus the commodity he or she had bought. The rule is generally unfair to the buyer of the product from the dealer who had taken the hire purchase deal since he or she is left miserable than when he or she came into the mix. The owner of the product on repossessing the product is entitled to sell to another person in order to recover his money, but the ripped person got no options but to comply with what the court decides. By that time, the owner would have got his or her commodity and the fraudster would have disappeared with the money of the buyer (Grossley 2009, p.236). Every day, many people grumble of the cons of employing the Nema dat rule into the judicial system. In the past, many innocent people have lost cases simply by the employing of that rule (Kouladia 2007, p.57). Just like many argue about its importance in the judicial system in the business world, it still stands out to be a good law. Imagine a situation whereby a given business has invested a lot in their products which they sell in hire purchase terms and end up get ripped off. Such businesses in the event of conmen can be able to repossess their goods and resell them to other people and still make their money (Krois-Lindner 2006, p.86). If the law of repossessing goods on hire purchase that had not been paid nine tenth did not apply, many such businesses would be making loses as they would target by fraudsters. Basically, there are laws in place to protect businesses in a given country. Since businesses play a key role in the running of a given economy, governments usually employ rules that protect them. In such a case, applying the rule might be advantageous to the survival of the given business (Macleod 2002, p.120). In the Nemo dat rule there are several exceptions that can be considered in court. One of them is an Estoppel. This when raised, can prevent the rightful owner of a given commodity from claiming that sale of a given commodity was unauthorized (Elias 2004, p.83). This is only raised the rightful owner makes the innocent purchaser believe that the fraudster had legal rights in selling the commodity to him or her. Such could only be possible if the mercantile agent was in possession of the title of the given good. In addition, the exception could be possible when mercantile agent got consent to sell by the true owner (Redmond 2011, p.232). In terms of the Voidable contract (S23) exception of Nema dat rule, it states that a given voidable title which had not been avoided yet had a chance of being transferred to a given buyer who did not know about the given deficiency of the title. It insists that if a given contract was voidable, though a good was sold before it avoided the third party, then one would get a good title (Bradgate 2007, p.33). In terms of the exception of the seller in possession (S24), states that a seller who gets in possession of a given commodity that he had sold, could sell the good again to a second buyer if he had a acquired a good title. Other exceptions of Nema dat rule include buyer in possession (S25) and Part 3 of the Hire Purchase Act 1964 (Wood 2007, p.93). Works Cited Akseli, O.,2011, International secured transactions law: facilitation of credit and international conventions and instruments, New York: Taylor & Francis. Print Alison Clarke, P. K. ,2005, Property law: commentary and materials, Cambridge: Cambridge University Press. Print Bar, C. v. , 2011, Towards a European civil code, New York: Kluwer Law International. Print Connolly, M. , 2000, Briefcase on Commercial Law, New York: Routledge. Print D. W. Greig, N. 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