Law of Torts
Wrongs Relating to Goods: Trespass to Goods and Conversion
Two torts protect goods, and they are distinguished by the gravity of the interference. Trespass to goods answers a direct interference with possession, and is actionable per se. Conversion answers a dealing so inconsistent with the rights of the person entitled that it amounts to a denial of his title, and its remedy is the value of the goods, so that a judgment in conversion operates in substance as a forced sale. The striking feature of conversion is that the defendant's good faith is no defence at all: an honest purchaser, an auctioneer who sells for a thief, and a carrier who delivers on a forged authority are all liable.
Trespass to goods and conversion, the role of good faith, demand and refusal, and what is not conversion
1. Trespass to Goods
- Trespass to goods is a direct and intentional interference with goods in the possession of another, without lawful justification.
- It is actionable per se. No damage need be proved, and nominal damages follow the bare interference.
- Possession at the time of the interference is what the plaintiff must show. Mere ownership without possession is not enough, though a person with an immediate right to possession is treated as having constructive possession for some purposes.
- A bailee in possession may sue, and so may a finder, a pledgee and a person in wrongful possession, in each case against a stranger.
- The act must be direct. Causing goods to be damaged through an intervening chain of events is negligence, not trespass.
- Intention as to the act is required, but not an intention to trespass. Mistake as to ownership is no defence, exactly as in trespass to land.
The form | The illustration |
Wrongful taking | Asportation: carrying the goods away, or taking them out of the possessor's control |
Wrongful moving | Moving them even a short distance, without taking them away. Moving a parked vehicle a few feet is a trespass |
Wrongful damage | Scratching a car, breaking a window, killing or injuring an animal, defacing a document |
Wrongful touching or handling | Any unauthorised contact with the goods, though in practice nominal damages only will follow |
2. Conversion
- Conversion is a dealing with goods in a manner so inconsistent with the rights of the person entitled to them as to amount to a denial of those rights.
- The plaintiff must have possession, or an immediate right to possession, at the time of the conversion. An owner who has parted with the immediate right, as by letting the goods on hire for a fixed term, cannot sue in conversion during the term.
- The test is the seriousness of the interference and not the defendant's state of mind. He must intend the act, but he need not intend to deny the owner's title, and he need not know that the goods belong to another.
- The tort is not actionable per se in the same way, since the measure of damages is the value of the goods, which is the substance of the claim.
The form | What it covers |
Wrongful taking | Taking the goods with the intention of asserting a right over them or of denying the owner's right |
Wrongful detention | Keeping the goods after a demand by the person entitled and an unqualified refusal to deliver them up |
Wrongful disposal | Selling, pledging, mortgaging or giving away the goods, or purporting to transfer title to them |
Wrongful destruction or consumption | Destroying the goods, or so altering them that their identity is lost, or consuming them |
Wrongful delivery | Delivering the goods to the wrong person, whether or not on a forged authority |
Wrongful use | Using the goods as one's own, where the use amounts to an assertion of a right over them |
3. Why Good Faith Is No Defence
- An auctioneer who sells stolen goods in good faith is liable in conversion, though he never suspected anything and accounted for the proceeds to his principal.
- A purchaser who buys honestly and for value is liable, because he has dealt with the goods as owner when he was not.
- A carrier or warehouseman who delivers to the wrong person on a plausible forged authority is liable, though he exercised every care.
- The rule is a hard one and is deliberately so. Conversion is the common law's mechanism for protecting title to goods, and it allocates the risk of a defective title to the person who chose to deal with the goods rather than to the owner who did nothing.
- The practical answer for a person in that position is not care but title. He must either acquire a good title under one of the statutory exceptions to nemo dat, chiefly sections 27 to 30 of the Sale of Goods Act, 1930, or protect himself by contract and insurance.
4. Demand and Refusal
- Mere possession of another's goods is not conversion. A person may have come by them entirely lawfully: a finder, a bailee, a repairer, a warehouseman, a person to whom they were delivered by mistake.
- What converts lawful custody into conversion is the assertion of a right inconsistent with the owner's.
- A demand by the person entitled, followed by an unqualified refusal to deliver, is evidence of conversion. It is evidence and not the tort itself: the refusal proves a dealing inconsistent with the owner's right.
- A refusal may be justified, in which case no conversion is established. It is justified where the defendant asks for a reasonable time to verify the claimant's title; where he holds the goods under a lien or other right of retention; where the demand was made by a person not entitled; and where the demand was itself unreasonable in its terms or in the time allowed.
- Where the act speaks for itself no demand is needed. A person who has already sold the goods or destroyed them has converted them, and it would be idle to ask him for them.
5. What Is Not Conversion
The act | Why it is not conversion |
A bailee's negligence causing loss or destruction | There is no dealing inconsistent with the owner's title, only a failure of care. The claim lies in negligence or for breach of the bailment |
A taking without any assertion of a right | Moving a car to clear a driveway, or taking an umbrella by mistake and returning it at once, is trespass and not conversion |
A refusal to deliver made in good faith pending verification | A reasonable and qualified refusal is not the unqualified refusal that evidences conversion |
A dealing with the owner's authority | Or under some other lawful authority, such as a statutory power of seizure or an order of court |
Mere damage to the goods | Unless the damage is so severe as to destroy the identity of the goods, in which case it becomes conversion by destruction |
⚠ Why conversion operates as a forced sale The characteristic remedy in conversion is damages measured by the full value of the goods at the date of the conversion, and the practical consequence is that the defendant, having paid, is left with the goods or with whatever he did with them. In substance the judgment compels a sale at a price the defendant never agreed to. That is why the courts require a dealing amounting to a denial of title before they will find conversion, and why lesser interferences are left to trespass with its modest damages. It also explains the hardest feature of the tort, which is the irrelevance of good faith. If the question were whether the defendant behaved reasonably, the honest purchaser would escape and the true owner would lose his goods for nothing. By asking instead whether the defendant dealt with goods that were not his, the law leaves the loss with the person who chose to enter the transaction, and leaves him to recover from whoever sold to him. |
6. The Position Stated Shortly
1. Trespass to goods is a direct and intentional interference with goods in another's possession, and is actionable per se.
2. Its forms are wrongful taking, wrongful moving, wrongful damage and mere unauthorised handling.
3. Possession at the time of the interference is what the plaintiff must show, and mistake as to ownership is no defence.
4. Conversion is a dealing with goods so inconsistent with the rights of the person entitled as to amount to a denial of those rights.
5. The plaintiff must have possession or an immediate right to possession.
6. Its forms are wrongful taking, detention, disposal, destruction, delivery to the wrong person, and use amounting to an assertion of right.
7. Good faith is no defence: an honest auctioneer, purchaser or carrier is liable, because the test is the seriousness of the interference and not the state of mind.
8. Mere possession is not conversion; a demand by the person entitled followed by an unqualified refusal is evidence of it.
9. A refusal is justified where the defendant seeks a reasonable time to verify title, holds under a lien, or is met with a demand by a person not entitled.
10. A bailee's negligence, a taking without assertion of right, and a dealing with the owner's authority are not conversion.