Legal Advice Concerning Property Law - Case Study Example

Legal Advice The Assistant Commissioner of Police Re: Possession of Stradivirus Sir: You have requested us to act on your behalf in the matter of a violin that originally belonged to Colonel Cadwallader, but has now been acquired by Lady Fothering Thomas upon payment of a sum of $300,000 for purchase of the property from an agent, who in turn is alleged to have acquired it on a fraudulent basis. You have requested us to determine the person who now rightfully must be accorded the rights of possession to the property in question, Colonel Cadwallader or Lady Fotherington Thomas. Rights of Colonel Cadwallader: There is a basic legal principle we may be applied in this instance - nemo dat quod non habet, which essentially means that that no one can give what he or she does not have. Therefore only a genuine owner of a property can actually sell, transfer or dispose of it1 and this suggests that Colonel Cadwallader is the person with the right to sell the violin, not Bill Sykes. The same principle is also stated reiterated in the law regarding sales2 so that a buyer who purchases a property from a seller who does not have necessary authority from the actual owner, or an acquired consent from the real owner after the sale has been finalized, does not acquire a valid title over the property just purchased. Therefore, you will note that at the outset, there appears to be a possibility that since Lady Fotherington Thomas has not acquired the property from the actual owner, the principle of nemo dat quod non habet may well apply to this case to render the sale invalid. Rights of Lady Fotherington Thomas: However, it must also be established that Bill Sykes did not have a valid authorization from Colonel Cadwallader to sell the violin. In this case, the title on the property that Bill Sykes has acquired through fraudulently posing as someone else is voidable under law.3 But if the voidable title is not avoided by the actual owner before the latter sells it to a third party, then there is a holding out, in which case the new buyer acquires valid title to the property.4 Therefore it would appear that since Colonel Cadwallader has not avoided the voidable title before Bill Sykes has sold it to the violin dealer and Lady Fotherington-Thomas, therefore she does acquire valid title to the property. We may also find support for this position in the law in the form of the rights of buyers in possession5 and Lady Fotherington Thomas may be entitled to retain possession on three grounds (a) Bill Sykes initially obtained possession of the Stradivirus with the consent of the colonel and (b) she received the property in good faith and without receiving notice of liens possessed by other persons on the property (c) the voidable title to the property possessed by Bill Sykes has not been voided by the Colonel before the purchase was made by Lady Thomas. The element of fraud: Therefore, on the basis of the above, it may seem that both parties could have equal claim on the property. There are two elements that must be pitted against each other (a) the fact that Lady Fotherington is an innocent party who has invested heavily in the property and will suffer if deprived of the property and (b) the interests of the colonel who is the original owner, but has been defrauded out of his property. But one important element exists in this case – the element of fraud. There have been similar cases in law that concerned voidable titles not avoided by the genuine owners 6 and it was stated as follows: “That another innocent party or parties may suffer does not in my view of the matter justify imposing on a defrauded seller an impossible task.”7 It has been stated that if the original owner/seller had taken all possible steps for recovery of his property that he has been fraudulently deprived of, despite being unable to communicate with the defrauding party, then he is entitled to retain his rights to possession. It would be unfair to deprive him of property that he rightfully owns after he has been defrauded out of his rights to possession. Possession of chattel: This would suggest that Colonel Cadwallader’s rights may have precedence. However, the validity of Bill Sykes’ possession must also be examined. Under the law, the rule of possession of movable objects states that a chose in possession exists if “one has either actual or vicarious custody of a moveable corporeal (corpus) plus the intent to hold it for oneself (animus)8. Detinue is the wrongful detention of another’s goods, while conversion is wrongful dealing with those goods contrary to his or her possessory title9. Applying these principles of rule of possession of chattel to this instance, Bill Sykes has obtained actual physical possession of the corpus with the intent to retain it for himself. The sale has been executed through a negotiable instrument10 – a promissory note to pay the balance of $50,000 on the day subsequent to the sale. However, this note is in fact a fraudulent one, because it will be deemed worthless, being a forged note that has been executed in the name of another person – Sergei Tretchikov, who cannot be held liable for repayment of the amount which has been fraudulently attributed to him as a debt. You will find that this position is also supported under the law, as was laid out by the Court11 where the victims of false promissory notes (the Bank of Portugal) received relief from the Court. Therefore, in the instant situation, the Court is likely to find in favor of Colonel Cadwallader who has also been the victim of a false promissory note that was fraudulently issued by Bill Sykes in another person’s name. Conclusion: Therefore, after an application of the law, we conclude that despite the fact that an innocent party, i.e, Lady Fotherington Thomas, is likely to suffer a loss of the monies she has invested in buying the Stradivirus, the fact that the transaction has been fraudulently executed could undermine the right to possession of a voidable title which was not avoided by Colonel Cadwallader. It may also be noted that the Colonel has taken prompt all possible steps to recover his misappropriated property despite his inability to contact the fraudster Bill Sykes, therefore the Courts may find in his favor and possession of the property may have to be restored to the Colonel. We therefore recommend that possession be restored to the Colonel. Yours faithfully, Read More