Lloyd's Maritime and Commercial Law Quarterly
CONSTRUCTIVE POSSESSION AFTER THE SALE OF GOODS (AMENDMENT) ACT 1995
Louise Gullifer*
The Sale of Goods (Amendment) Act 19951 was passed to deal with a specific problem: the failure of English law to allow property to pass in unascertained goods which formed part of a bulk.2 There has been considerable academic comment on various features of the Act.3 This article seeks to examine the repercussions for the law relating to the transfer of possession.
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The function of the concept of possession
Possession is often an elusive concept in English law.5 One solution to the problem of defining possession is to see the concept as descriptive rather than definitional, and to view decisions on possession as dependent on the context in which they are made.6 Thus, when considering the function of the concept of possession in relation to sale of goods, one can see that it is of particular importance in the following contexts:
- (a) possession gives a right to retain or recover goods;7
- (b) in order to be able to sue in conversion or trespass, a party must have possession of goods or the right to possession;8 in order to be able to sue in negligence, a party must have a proprietary interest in the goods or possession of the goods;9
- (c) transfer of possession is essential in order to effect a pledge;10
- (d) transfer of possession is necessary to effect delivery;11
- (e) an unpaid seller has a lien on goods until he has parted with possession of them;12
- (f) SGA, ss 24 and 25 apply to a seller and buyer in possession respectively.
* Lecturer in Law, St Anne’s College, Oxford. I should like to thank Professor Francis Reynolds and Dr Lionel Smith for their helpful comments relating to this article.
1. Hereafter “SGAA”.
2. See Sale of Goods Act (“SGA”), s. 16.
3. E.g., R. Bradgate & F. White, “Sale of Goods forming part of a bulk: proposals for reform” [1994] LMCLQ 315; J. Ulph, “The Sale of Goods (Amendment) Act 1995: co-ownership and the rogue seller” [1996] LMCLQ 93; T. Bums, “Better Late than Never: The Reform of the Law on the Sale of Goods Forming Part of a Bulk” (1996) 59 MLR 260.
4. See Law Commission, Sale of Goods forming Part of a Bulk: Law Com. No. 215 (which led to the SGAA), para. 5.5: “An undivided share in goods cannot be physically possessed or delivered, separately from the whole of the goods, so that the Act’s provisions on possession and delivery of the goods do not easily apply as they stand. This is an existing problem. We do not think it is important enough to warrant a complicated set of special provisions in the Act. The Act’s provisions based on possession or physical delivery will simply disapply themselves and the intentions of the parties will prevail.”
5. See definitional statements in Pollock and Wright, Possession in the Common Law (Oxford, 1888) (“Pollock & Wright”), 13 (“any power to use and to exclude others, however small, will suffice if accompanied by the animus possidendi, provided that no one else has the animus possidendi and an equal or greater power”) and R. M. Goode, Commercial Law, 2nd edn (London, 1995) (“Goode, Commercial Law”), 47 (“control, directly or through another, either of the asset itself or of some larger object in which it is contained or of land or buildings on or beneath which it is situated, with the intention of asserting such control against others, whether temporarily or permanently”).
6. D. R. Harris, “The Concept of Possession in English Law”: Chap. 4 of A. G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford, 1961); Goode, Commercial Law, 46; N. Palmer, Bailment, 2nd edn (London, 1991) (“Palmer”), 901; A. P. Bell, Modern Law of Personal Property in England and Ireland (London, 1989) (“Bell”), 34.
7. The content of this right will be examined below. Goode, Commercial Law, 28 and 47, calls possession a real right which survives the insolvency of the person against whom the right is asserted. See also R. M. Goode, Proprietary Rights and Insolvency in Sales Transactions, 2nd edn (London, 1989) (“Goode, Proprietary Rights”), 1, 3, 7 and 47. Others, e.g., Bell, 34, see possession as giving a right to sue in conversion and negligence, and as a right against all the world but the true owner.
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