Law of Torts
Trespass to Goods and Conversion: Interference With Possession and Denial of the Owner's Right
Both are wrongs to chattels and they measure different things. Trespass to goods is a trespass: a direct and unauthorised interference with goods in another's possession, complete on the interference, and compensated by the damage actually done. Conversion is an action on the case: a dealing with goods so inconsistent with the owner's rights as to amount to a denial of them, and it is compensated by the full value of the goods. The difference in measure is the whole practical significance of the distinction: a defendant who scratches a car pays for the scratch, and a defendant who sells it pays for the car.
1. The Comparison
Trespass to goods | Conversion | |
The nature of the wrong | A trespass | An action on the case |
The gist | Direct interference with goods in another's possession | A dealing inconsistent with the owner's rights, amounting to a denial of them |
What is protected | Possession | The right to immediate possession |
Who may sue | The person in actual or constructive possession | The person entitled to immediate possession, whether or not in actual possession |
Degree of interference | Any, however slight. Moving or touching suffices | Must be serious enough to deny the owner's title |
Intention | The act must be voluntary; an intention to do wrong is not required | The same. An honest belief in one's own title is no defence |
The measure of damages | The damage actually done, or nominal damages | The full value of the goods at the date of the conversion |
Effect of a satisfied judgment | Title is unaffected | Title passes to the defendant, who has in effect been made to buy the goods |
Return of the goods | Not the object of the action | May be ordered, and reduces the damages |
Typical instance | Moving, scratching, or using another's chattel | Taking, selling, destroying, consuming, or refusing to deliver up |
2. Trespass to Goods
- Any direct and unauthorised interference with goods in the possession of another is a trespass to goods. Taking them, moving them, damaging them, or in the older cases merely touching them.
- The plaintiff must have possession at the time, actual or constructive. A bailor who has parted with possession for a term cannot sue in trespass, though he may sue in conversion.
- An honest mistake is no defence. Kirk v. Gregory, (1876) 1 Ex D 55: a relative who moved a dead man's rings from one room to another for safe keeping, honestly believing it necessary, was liable in trespass when they were stolen, and nominal damages of one shilling were awarded.
- The measure is the actual damage, which is why the action is of little use where the goods have been wholly lost to the plaintiff: TORT 141.
3. Conversion
- The test is whether the dealing was so inconsistent with the owner's rights as to amount to a denial of them. A mere interference, however annoying, is not enough; there must be an assertion of a right over the goods inconsistent with the owner's.
- The commonest forms are taking or receiving the goods; wrongfully parting with them, as by sale, pledge or delivery to the wrong person; wrongfully destroying or consuming them; wrongfully retaining them after a demand for return; and wrongfully using them as one's own.
- Liability is strict. An honest and reasonable belief in one's own title, or in the title of the person from whom one took them, is no defence. An auctioneer who sells stolen goods for an apparent owner converts them, and so does an innocent purchaser who resells.
- A demand and refusal is not an ingredient, but it is the usual way of proving a conversion by detention, since a refusal to deliver up on a lawful demand is evidence of a denial of title.
- The right to immediate possession is what is protected, so a bailor whose bailee has done something repugnant to the bailment, and an owner out of possession, may both sue.
- The subject is examined fully in TORT 072.
4. The Measure of Damages
Trespass to goods | Conversion | |
The basic measure | The diminution in value, or the cost of repair | The full value of the goods |
The date of valuation | The date of the trespass | The date of the conversion |
Consequential loss | Recoverable if not too remote | Recoverable if not too remote, including loss of use |
If the goods are returned | The claim is for the damage done in the meantime | The value of the return is credited, and the plaintiff recovers the depreciation and loss of use |
Improvements by the defendant | Not in issue | An innocent improver may be given credit for the value he added |
Effect of satisfaction | None on title | Title passes to the defendant on satisfaction of the judgment |
- The passing of title on satisfaction is the key to understanding conversion. The defendant is compelled to buy the goods at their value, and once he has paid he owns them. That is why the action is a poor one where the chattel is unique and the plaintiff wants the thing itself.
- Where the plaintiff wants the goods back and not their value, the claim is in detinue, or under sections 7 and 8 of the Specific Relief Act, 1963: TORT 149.
5. Where the Line Is Drawn
The act | Trespass, conversion, or both |
Moving goods from one place to another without authority | Trespass. There is no denial of title |
Scratching or denting a chattel | Trespass |
Taking goods away and keeping them | Both |
Selling goods belonging to another | Conversion, whether or not the seller ever touched them |
Destroying or consuming goods | Both |
Refusing to deliver up on a lawful demand | Conversion by detention. There need be no physical act at all |
Using another's goods as one's own | Conversion, if the use is inconsistent with his rights; otherwise trespass |
Receiving stolen goods innocently and reselling them | Conversion. Liability is strict |
6. What to Plead
- Plead both wherever the facts admit of it. They are not inconsistent, and the classification of a particular dealing is a question on which a court may differ.
- Plead conversion where the goods have been lost to the plaintiff, since only it yields the full value.
- Plead trespass where the goods remain with the plaintiff but were interfered with, since it requires no proof of a denial of title and no proof of loss.
- Add detinue, or a claim under the Specific Relief Act, 1963, where the plaintiff wants the thing itself.
- Add negligence where a positive want of care can be shown, as against a bailee, and a bailee's liability being contractual as well as tortious: TORT 100.
- Identify the plaintiff's interest precisely, since trespass requires possession and conversion requires the right to immediate possession, and a plaint that asserts "ownership" without more has pleaded neither.
⚠ Why conversion is a strict liability tort, and who bears the loss when it is Conversion holds an entirely innocent defendant liable for the full value of goods he never knew were not his to deal with. An auctioneer who sells a stolen painting for a plausible seller, a dealer who buys it in good faith and resells, a carrier who delivers it to the wrong person on convincing instructions: each of them converts, and each pays the owner in full. The rule looks harsh and it is deliberate. The alternative is a rule in which an owner who has been dispossessed can recover only from the thief, who is usually gone, while everyone in the chain who profited from handling the goods keeps what they made. The law instead treats the protection of title as paramount and places the risk on whoever chose to deal with the goods, on the footing that a person who deals commercially in chattels is better placed than the dispossessed owner to investigate title, to insure, and to price the risk into the transaction. The practical consequence runs down the whole chain: each party who paid has a claim over against the person who sold to him, so the loss travels back toward the original wrongdoer and stops wherever the chain breaks. That is why title investigation matters in the art and commodity trades far more than the sums involved would otherwise suggest, and why an honest purchaser who cannot trace his seller is the person the rule is designed to leave holding the loss. |
7. The Position Stated Shortly
1. Trespass to goods is a direct interference with goods in another's possession; conversion is a dealing so inconsistent with the owner's rights as to deny them.
2. Trespass protects possession; conversion protects the right to immediate possession.
3. Any interference, however slight, is a trespass; conversion requires a dealing serious enough to amount to a denial of title.
4. The measure in trespass is the damage actually done; the measure in conversion is the full value of the goods at the date of the conversion.
5. A satisfied judgment in conversion passes title to the defendant, who has in effect been made to buy the goods.
6. Liability in conversion is strict, and an honest and reasonable belief in one's own title is no defence.
7. Kirk v. Gregory shows that a well meant interference is still a trespass, and yields nominal damages.
8. A demand and refusal is not an ingredient of conversion but is the usual proof of a conversion by detention.
9. Conversion is a poor remedy for a unique chattel, since it yields the value and not the thing, and detinue or the Specific Relief Act must be used instead.
10. Both should be pleaded together, with the plaintiff's interest identified precisely as possession or the right to immediate possession.