VINDICATIO The Missing Remedy?

• Citation: (2016) 28 SAcLJ 1052
• Author: Nicholas J MCBRIDE BA, BCL (Oxon); Fellow, Pembroke College, Cambridge.
• Date: 01 December 2016
• Published date: 01 December 2016

In this article, I explain the nature of a vindicatio remedy and discuss its rarity in common law legal systems. I set out two arguments – a pragmatic argument, and a principled argument – for making such a remedy available in cases where a defendant is in possession of an item of personal property that belongs to the plaintiff, and examine whether those arguments can be made out.

I. Introduction

1 It is often said that one of the most distinctive features of common law legal systems is that in cases where a defendant, D, is in possession of personal property which belongs1 to P, the law will not provide P with a vindicatio remedy that will allow P to recover her property, or its value, from D. Two examples of such cases are:

(a) “Lost Umbrella”: P accidentally leaves her umbrella behind on the train. T finds the umbrella and hands it in to D, the train company's lost property office.

(b) “Stolen Car”: P's car is stolen from her by T, who then sells2 the car to D, who honestly believes that the car belongs to T at the time he buys it.

This article will explore whether the lack of a vindicatio remedy in cases like these is a matter of regret. The focus will be on English law, but references to the law in other jurisdictions will be made where necessary.

II. What is it?

2 It is sometimes said3 that a vindicatio remedy allows P specifically to recover her property from D in cases like Lost Umbrella and Stolen Car and that common law legal systems lack a vindicatio remedy because in cases like these, the most P will ever be able to recover from D under the common law is the money value of her umbrella or car. This way of thinking is a mistake. The mark of a vindicatio remedy is that in cases like Lost Umbrella and Stolen Car P is allowed to sue D without having to allege that D has committed a legal wrong in relation to her.4 If P can base a claim against D merely on the ground that D is in possession of her property, then the remedy she is seeking is a vindicatio remedy – and this is so whether or not she ends up recovering her property in specie.

3 That this is so is shown by Roman law, where the formula by which a plaintiff would bring a rei vindicatio suit instructed the judge:5

If it appears that the property, which this suit concerns … belongs to the plaintiff, and this property will not be restored [by the defendant], then … give judgment that the defendant pay as much money as the property is worth.

So under Roman law, bringing a vindicatio action would only result (if the defendant did not choose to give the plaintiff her property back) in a condemnatio pecuniaria– a judgment in money.6

4 So the vindicatio is distinguished as a remedy by its function, rather than its form. In Birksian terminology, it responds to the “not-wrong”7 of D's being in possession of P's property and seeks to remedy the problem involved in D's being in possession of that property by allowing P to sue D either for the property in specie or its value. What form the vindicatio remedy takes depends on the jurisdiction recognising it. As we have seen, in Roman law it took the form of an order to pay P money. In modern civilian jurisdictions, it takes the form of in specie recovery.8 Were English law or another common law jurisdiction to recognise the existence of a vindicatio remedy, we would expect – by analogy with the law on specific performance of contracts and the law on specific restitution of chattels that have been converted by a defendant – that the remedy would take the form of in specie recovery where P's property is unique, and that P would be confined to recovering the value of her property where a substitute could easily be purchased on the open market.

III. Did we/do we have it?

5 The answer, at least in relation to cases like Lost Umbrella and Stolen Car, is “no”. In cases like these, P cannot simply sue D claiming, “You've got my property!”9 Instead, P has to allege that D has committed

a legal wrong in relation to her as a result of the way he has dealt with her property. In Stolen Car that will not be a problem. For reasons we will go into later, P will be able to claim that D committed the tort of conversion in relation to her by taking possession of her car, and is as a result liable to pay her damages equal to the value of the car if P does not recover the car itself. In Lost Umbrella, P will not be able to do this. D will not have committed the tort of conversion in relation to P by taking possession of P's umbrella as D had no intention of keeping it for himself when he did so.10 So if P wants to sue D in Lost Umbrella, she will have to do something to put D in the wrong. The most straightforward way for her to do this is to demand that D hand over her umbrella. If D unjustifiably refuses to do this, D will have converted P's property and P will then be able to sue D.

6 Before we consider whether the lack of a vindicatio remedy in cases like Lost Umbrella and Stolen Car is a matter of regret, it is worth asking: (a) whether English law ever recognised the existence of a vindicatio remedy in relation to goods and lost it somewhere along the way in an absence of mind; and (b) whether there are any areas of English law that currently recognise the existence of a vindicatio remedy in relation to chattels outside cases like Lost Umbrella and Stolen Car. If the answer to questions (a) and/or (b) is “yes” then the case for recognising the existence of a vindicatio remedy in situations like Lost Umbrella and Stolen Car would be strengthened. If the answer to (a) is “yes” then the lack of a vindicatio remedy in these situations would seem to be a result of historical accident rather than considered principle. If the answer to (b) is “yes” then consistency would seem to demand that a vindicatio remedy in relation to goods be made available outside the enclaves where it currently operates.

A. Detinue

7 Lionel Smith argues that “[i]t is clear that detinue”– the cause of action that would allow a plaintiff to sue a defendant for detaining her property, and which was abolished in England in 197711–“was originally a vindicatio”.12 Detinue's roots as a praecipe writ – under which

the King would order a D to do x and if he did not do so, to come before the King's justices to explain why (ostensurus quare) he had not done x– made detinue well-suited to operate as a vindicatio remedy: the praecipe writs did not have as their object the remedying of wrongs but the vindication of rights.13 However, as early as 1431,14 and certainly over the course of the 16th century,15 detinue was not acting as a vindicatio in cases where a bailee of P's goods no longer had P's goods. In such a case, the bailee could not always escape liability in detinue by pleading “I haven't got your goods!” (non detinet).16 Such a plea should always be good against a P seeking a vindicatio remedy as such a remedy responds to P's claiming”D's got my goods!”. So the fact that a bailee could not escape liability in detinue by saying, “No I haven't!” indicates that what detinue was really concerned with – at least by the start of the 17th century – was providing a remedy to a P who was, or had been, wrongfully deprived of her goods by D.

8 This is why a bailee of P's goods could not defeat a claim in detinue by saying, “I haven't got your goods!” Such a plea would amount in most cases to an admission that the bailee had wrongfully failed to look after P's goods, with the result that P would be entitled to a remedy against the bailee for wrongfully depriving her of those goods. It was only when P brought a claim in detinue against a non-bailee – a claim in detinue sur trover (so-called because P would claim that D had found goods that P had lost, and had unjustly detained them) – that a plea of non detinet was good, and that was because a finder of goods, unlike a bailee, had no obligation to keep them safe.17 However, as Simon Douglas points out,18 even in a detinue sur trover case, P could not simply sue D in detinue on the basis that D was in possession of her goods. P had first to demand that D return her goods, and it was only if D unjustifiably refused to do so that P could bring a claim in detinue against D. This again indicates that, whatever its origins, detinue did not

operate to provide dispossessed owners of goods with a vindicatio remedy but to provide a remedy to a P who had been wrongfully deprived of her goods by a D.

B. Recaption

9 If, in Stolen Car, P found her car parked on the street, P would then be entitled to get in the car and drive it away. P's power to “recapture” her car in this kind of case seems to be operating as a vindicatio remedy as she is entitled to exercise that power to recover her car without having to establish that D is a wrongdoer. However, it is questionable whether P's power to take back her car here is genuinely remedial in nature: it seems to be identical to the everyday power P had before her car was stolen to get in it and drive it wherever she wanted. Where the law on “recaption” does seem genuinely remedial in nature is where it empowers P to use force against D19 or to enter onto D's land20 in order to recover her property. However, such a power no longer exists in English law,21 and when it did exist it seems that the power could only have been exercised against a D who wrongfully took possession of P's goods or wrongfully refused to hand the goods over to P when P asked D to do so.22

C. Money had and received

10 Suppose it were not an umbrella that was handed in to D at the lost property office in Lost Umbrella but a wallet, containing £100. It seems that the claim “He's got my money!” will unlock the door to a remedy in a way that the claim “He's got my umbrella!” will not. One of the categories of situation where P could traditionally bring a claim for “money had and received” against D was the case where D received money belonging to P.23 Peter Birks analysed P's...