Terminology and Title to Chattels: A Case Against 'Possessory Title'

Abstract

A.V. Dicey maintained in his inaugural lecture that "the technical terms of law are as bad as any technicalities can be; they are technical without being precise, or, when apparently popular, are full of latent ambiguity." 1 Dicey provided three examples of defective legal terms: "chose in action", "personal property", and "void contract". 2 Dicey could have mentioned "possessory title", for it is neither precise nor unambiguous. Like many terms, "possessory title" is used in various ways. 3 This article is concerned with the use of the term to denominate the interest 4 that is acquired by a person, B, when (and because) B takes possession of another person's (A's) tangible chattel. 5 This usage is not uncommon. Palmer, for instance, has asserted that possession of a chattel gives rise to a "possessory title". 6 Battersby and Preston maintained in an influential article that, if A is the "true owner" of a chattel and B unlawfully takes possession of it, B acquires, upon obtaining possession, a "possessory title to an absolute interest" in the chattel. 7 Goode and McKendrick have drawn a similar contrast. According to their account of the law, A, in such circumstances, has the "best title to the ownership interest" and B has a "possessory title to the ownership interest" in the chattel. 8 Green and Randall have asserted that a possessor, such as B, acquires a "possessory right" over the chattel; 9 and it is notable that this formulation avoids the ambiguity of "title". 10