Mendonca v Le Boutillier

CourtRoyal Court
JudgeHamon, Deputy Bailiff:
Judgment Date14 May 1997
Date14 May 1997
Hamon, Deputy Bailiff:

N. Pearmain for the plaintiff;

Miss D.M.C. Sowden for the defendant.

Cases cited:

(1) Albright v. Harrison (ne Wailes), 1952 J.J. 31, followed.

(2) Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758; [1963] 1 All E.R. 341; [1963] 1 Lloyd's Rep. 1; (1963), 107 Sol. Jo. 73.

(3) Golder v. Socit des Magasins Concorde Ltd., 1967 J.J. 721, not followed.

(4) Public Servs. Cttee. v. Maynard, 1996 JLR 343, considered.

(5) Selby v. Romeril, 1996 JLR 210, considered.

(6) Wood v. Establishment Cttee., 1989 JLR 213, considered.

Texts cited:

First Report of the Commissioners appointed to inquire into the state of the Criminal Law in the Channel Islands: Jersey, Answers to Questions, para. 1682, at 179 (1847).

Goode, Hire Purchase Law & Practice, 2nd ed., at 618 (1970).

Hunter's Introduction to Roman Law, 9th ed. (revised), at 56-57 (1934).

Le Geyt, 3 Manuscrits sur la Constitution, les Lois, & les Usages de Jersey, at 391-392 (1847).

Le Gros, Droit Coutumier de Jersey, at 459 (1943).

Matthews & Nicolle, Jersey Law of Property, paras. 2.6-2.9, at 24-25 (1991).

Merlin, 6 Questions de Droit, Donation, art. 6, at 51 (1829 ed.).

Planiol & Ripert, 1 Trait du Droit Civil, 12th ed., para. 2459, at 844; para. 2472, at 848 (1932).

Poingdestre, Remarques et Animadversions sur la Coutume Reforme (Ms., c.1680), Preface.

Pothier, Trait du Contrat de Vente, para. 326, at 363 (1830 ed.).

Report of the Commissioners appointed to inquire into the Civil, Municipal and Ecclesiastical Laws of the Island of Jersey, together with Minutes of Evidence (Command Papers, First Series, No. 2761), Report, at iii (1861).

Contractlaw applicablecommon lawmaxim nemo plus juris ad alium transferre potest quam ipse haberet applies in Jersey law to sale of movables, since customary law of contract derives from Roman lawmaxim en fait de meubles, possession vaut titre not part of Jersey lawarticles of Code Civil not derived from Norman law, and English statutes without Jersey equivalent, unhelpful in determining Jersey law

The plaintiff brought an action against the defendant for the purchase price of a car he had bought from him.

C entered into a hire-purchase agreement with a company for the purchase of a car, the agreement stipulating, inter alia, that the car remained the property of the company until all the instalments had been paid. Without having paid all the instalments, C sold the car to the defendant, who did not know that C was not the owner. The defendant then resold the car to the plaintiff, who subsequently allowed it to be repossessed by the hire-purchase company. He then brought the present action for the return of the purchase money.

The plaintiff submitted that he had been bound to allow the car's true owner to take possession of it, because (a) although both he and the defendant had acted in good faith, neither of them had acquired ownership of the car (an item of movable property), C having had no title to it: C could not therefore have given to the defendant greater title to it than he himself had had, nor could the defendant have given the plaintiff title, by virtue of the maxim nemo plus juris ad alium transferre potest quam ipse haberet; and (b) that maxim applied in Jersey because the Jersey customary law of contract derived from the Norman and ultimately the Roman law of contract.

The defendant submitted in reply that he owed the plaintiff no money and that the plaintiff should not have allowed the car to be repossessed, because (a) as bona fide purchasers, both he and subsequently the plaintiff had acquired ownership of the car and he had therefore properly transferred it to him, and was entitled to retain the purchase money; and (b) this was so by virtue of the maxim en fait de meubles, possession vaut titre, which existed as part of the Jersey cotume (and was derived from art. 2279 of the French Code Civil) and was consonant with modern English statutory developments regarding the sale of goods; it was therefore preferable to any rule derived from the Roman law of contract.

The court also considered whether, if the plaintiff, as a bona fide purchaser of movables, did not acquire ownership of them, he acquired any rights at all, in particular, whether the true owner's right of repossession was subject to any prescription period.

Held, ruling that the original owner was entitled to possession of the car:

(1) C, having no title, could not validly transfer ownership of the car to the defendant, who had accordingly been unable to pass it to the plaintiff. The Jersey law of contract was ultimately derived from Roman law, which made it clear that a person who transferred movables to another could pass no better title than he had himself: nemo plus juris ad alium transferre potest quam ipse haberet. However, a transferee acting in good faith accepting movables from a transferor who did not have good title did acquire (a) the right to receive any income or benefits from these movables, without having to account for them to the owner; and (b) civil possession, followed by eventual ownership if the original owner did not reclaim the movables within the prescription period of 10 years (page 145, line 11 - page 146, line 6; page 149, line 39 - page 151, line 2).

(2) The maxim en fait de meubles, possession vaut titre accordingly held no place in Jersey law. In deciding whether such maxims formed part of the Jersey cotume, it was important to examine their origins carefully; and in the above case, the maxim corresponded to an article of the French Code Civil which did not derive from a Norman customary source. Similarly, weight could not be placed on English law where the common law had been replaced by a statute to which there was no Jersey equivalent. For these reasons, the plaintiff had rightly allowed the car to be repossessed (page 146, line 34 - page 149, line 38; page 151, lines 3-41).


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