Nemo Dat Flashcards
What is the general nemo dat rule and where is it found?
A person cannot give what they do not have – s21(1) SoGA
What are the two main requirements of the nemo dat rule? Evidence?
- Goods must be “sold” by non-owner – Shaw v Commissioner of Police
Shaw could not rely on exception to nemo dat rule because there had only been an agreement to sell - There must not be consent of the owner – s 47 SoGA – Mordaunt v British Oil
What are the 7 exceptions to the nemo dat rule?
- Agency
- Estoppel
- Estoppel by agency
- Buyer in possession
- Seller in possession
- Voidable title
- Hire purchase arrangement
NEMO DAT EXAMPLE: AGENCY
What are the two types of agency?
Actual
Ostensible / apparent
Which case distinguishes between actual and apparent authority?
Freeman & lockyer v Bruckhurst Properties
Actual – consensual agreement to which principal and agent are parties
Apparent – representation made by principal to third party that they have the principles authority
What are the 3 requirements for agency to arise? Case?
Rama Corporattion v Proved Tin and General Investment
- Representation / appearance that the agent has authority
- Representation must be made by the principal
- Representation must be relied upon by a third party
Can an agent make a representation that he is authorised? Cases?
NO – Armogos v Mundegas
HOWEVER – First Energy v Hungarian International bank
Bank manager had no authority to confirm a loan, but his position meant he could communicate decisions of more senior members – therefore claimants could rely on offer they received
(Agency) What rules concern reliance? Cases?
There is no apparent authority where third party knows….
- Agent has no authority – armagas v Mundogas
- Agent acts for himself – wattleau v Fenwick
- Principal limited agents authority – pharmed medicare v univar
NEMO DAT EXCDEPTION:
ESTOPPEL
Which main law concerns estoppel?
S21(1) SoGA
What are the two ways estoppel can arise?
- By words / conduct (representation)
2. By negligent omission (estoppel by negligence)
What 3 main cases concern estoppel?
- Central Newbury Car Auctions v Unitary Finance
- Eastern Distributors v Goldring
- Henderson & Co v William
Facts of Central Newbury Car Auctions v Unitary finance
Mere possession is not sufficient to amount to representation that possessor in goods is allowed to deal in them – rogue had possession of the car, but not the REGISTRATION DOCUMENT
Facts of Eastern Distributors v Goldring
C was estopped from preventing sale of the van because they signed HP Arrangement stating that the car dealer was the owner of the van – this amounted to a representation
What are the two limits to estoppel? Cases?
- Agreement to sell – Shaw v Commissioner of Police; there must be an actual sale
- Duress – Debs v Sibec Developments
What criteria must be fulfilled for estoppel by negligence to arise? Case?
Mercantile Credit v Hamblin
- Duty of care
- Breach of duty
- Causation
In this case, there was no breach of duty
NEMO DAT EXCEPTION: BUYER IN POSSESSION
Which pieces of legislation concern buyers in possession?
S25 SoGA, and
s9 Factors Act
What is the scope of the buyer in possession exception?
- Buyer 1 must have bought goods / agreed to buy
- Buyer 1 must have possession
- Possession must be with consent of seller
- Buyer 1 must sell / pledge / dispose to buyer 2
- Buyer 1 must deal as mercantile agent
- Buyer 2 must act in good faith and without notice of the sellers interest
buyer in possession
Which case states that buyer 1 must have possession?
Fadallah v Pollack
Can be actual OR constructive possession
But must be before sale / agreement to sell the goods
Buyer in possession
Which cases state that possession must be with the consent of the seller?
Du Jardin v Beadmans – consent by deception
National Employers v Jones – theft breaks the chain of causation
buyer in possession
Which case states that buyer 1 must pledge / dispose / pledge to buyer 2?
Forsythe International v Silver Shipping Co
buyer in possession
Which case states that buyer 1 must act as a mercantile agent?
Newtons of Wembley v Williams
buyer in possession
Which case states that buyer 2 must act in good faith without notice of sellers interest?
The Saetta
NEMO DAT EXCEPTION: SELLER IN POSSESSION
Which laws concern seller in possession?
S24 SoGA, s8 Factors Act 1989
NEMO DAT EXCEPTION: SELLER IN POSSESSION
Give an example of seller in possession
Worcester Works Finance v Cooden
Car dealer sold car to finance company by falsely saying he was entering into Hire Purchase Arrangement
Dealer then kept car and sold it onto innocent third party
NEMO DAT EXCEPTION: SELLER IN POSSESSION
What is the scope of seller in possession exception?
- Must be an actual sale
- Seller must have possession of the goods
- There must be delivery of goods to B2
- B2 must act in good faith
NEMO DAT EXCEPTION: SELLER IN POSSESSION
What rules exist concerning possession? Cases?
Possession also means bailment on behalf of seller –
City Manufacturing v Fureenband
Possession must be physical and continuous from sale to B1 to resale – Pacific Motor auctions v Motor Credits
NEMO DAT EXCEPTION: SELLER IN POSSESSION
What kinds of delivery are possible to buyer 2?
Actual – Nicholson v Harper
Constructive – Gerson v Wilkinson
NEMO DAT EXCEPTION: SELLER IN POSSESSION
Where can we find the rule that B2 must act in good faith?
S61(3) SoGA
NEMO DAT EXCEPTION: SELLER IN POSSESSION
How is good faith defined?
something that is done honestly, whether it is done negligently or not
NEMO DAT EXCEPTION: SALE UNDER VOIDABLE TITLE
Which piece of legislation concerns sale under voidable title?
S23 SoGA
NEMO DAT EXCEPTION: SALE UNDER VOIDABLE TITLE
What is the scope for sale under voidable title?
- B 1 must have a voidable title
- B2 must act in good faith without knowledge of defect in title
- Sale to B2 must take place before original sale sought to be avoided
NEMO DAT EXCEPTION: SALE UNDER VOIDABLE TITLE
In what 3 circumstances can a voidable title arise?
- Misrepresentation / mistake as to identity
- Duress
- Undue influence
NEMO DAT EXCEPTION: SALE UNDER VOIDABLE TITLE
Which 3 cases concerns misrepresentation?
Lewis v Averay
Cundy v Lindsay
Shogun Finance v Hudson
NEMO DAT EXCEPTION: SALE UNDER VOIDABLE TITLE
What rule is established in Lewis v Averay?
Face to face transactions held to be VOIDABLE
NEMO DAT EXCEPTION: SALE UNDER VOIDABLE TITLE
What rule is established in Cundy v Lindsay?
Distance contracts are not covered by s23 SoGA
This is because they are VOID not voidable
NEMO DAT EXCEPTION: SALE UNDER VOIDABLE TITLE
What are the facts of Car & Universal Credit v Caldwell?
Owner of stolen car notified all relevant authorities before sale took place – therefore notice of rescission took place
NEMO DAT EXCEPTION: HIRE PURCHASE ACT
Which law concerns Hire Purchase?
S27 HPA
What are the main requirements of the Hire purchase exception?
- Must be motor vehicles only (requires engine to propel along motorway)
- Seller must be in possession under HP or conditional sale arrangement
- Innocent party obtains goods via disposition via debtor in possession
- Disposition must be relevant and timely – S29 HPA
- Disposition must be made to a private purchaser
- Private purchaser must purchase in good faith
NEMO DAT EXCEPTION: HIRE PURCHASE ACT
Which cases concern private purchaser?
GE Capital Bank v Rushton
purchaser bought cars with a view to making profit
Welcome Financial Services v Nine Regions – concerned “finance purchaser”
Where does the hire purchase exception not apply? Law? Case?
Where contract is void due to mistaken identity
S27 HPA
Shogun Finance V Hudson
