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9 U. Brit. Colum. L. Rev. 186 (1974)
Sale of Goods--Transfer of Title by Non-Owner--Recovery of Stolen Goods--Brandon v. Leckie

handle is hein.journals/ubclr9 and id is 192 raw text is: U.B.C. LAW REVIEW

SALE OF GOODS - TRANSFER OF TITLE BY NON-
OWNER - RECOVERY OF STOLEN GOODS - BRANDON
V. LECKIE.- That most famous maxim of the law of personal
property, nemo dat quod non habet, has long admitted of exceptions.
There are numerous instances in which an owner may lose title to
goods through transactions to which he has not fully consented.'
But these exceptions to the nemo dat rule are clearly limited in scope,
and what seems to have been abundantly clear to the student of
Canadian commercial law, particularly with the effective rejection
in this country of sale in market overt,2 is that an owner can always
recover goods that have been stolen from him. It is thus somewhat
surprising to find, in the recent Alberta decision of Brandon v.
Leckie,' a purchaser seriously arguing that he has obtained title to
goods through a thief.
1 The acknowledged exceptions to the nemo dat principle, which were formal-
ized in the English sales and factors legislation, and then generally adopted in
all Canadian common law jurisdictions are (a) estoppel, where the owner is
precluded by his conduct from denying someone's authority to sell (R.S.B.C.
296o, c. 344, S. 27) ; (b) sale by a seller whose title is voidable (s. 29) ; (c)
sale by a seller or buyer in possession pursuant to a sales agreement (s. 31 );
(d) a disposition of goods by a mercantile agent in possession with the con-
sent of the owner (s. 59) ; (e) sale under special common law or statutory
power of sale, or under the order of a Court of competent jurisdiction (s. 27) ;
(f) sale validated by the ordinary rules of agency (acknowledged by s. 73):
and, at least in England, (g) sale in market overt (see, infra, note 2).
2 The legislatures in all but one of the Canadian common law jurisdictions
refused to incorporate into their sale of goods legislation the notion of sale
in market overt set out in s. 22 of the English Sale of Goods Act, 2893 (see
Fridman, SALE OF GOODS IN CANADA (1973) 14). Indeed, the Ontario act
expressly excludes its operation in that Province (R.S.O. 1970, c. 421, S.
23). In this light, it is not surprising to find that in Mackenzie v. Blindman
Valley Co-op. Assn. Ltd. [1947] 2 W.W.R. 443 (ALTA. S.C.), Howson
C.J.T.D. was unable to find any authority for the application of the common
law of market overt in Canada. Even in British Columbia, where s. 28 of the
Sale of Goods Act does recognize a sale in market overt concept, it is sug-
gested, considering the historical background of the principle and the tests for
establishing such a market, a court would not likely breathe life into what is
probably a dead letter. The writer knows of no reported cases in British Colum-
bia in which sale in market overt has served as the basis for transfer of title to
goods. In this regard it is interesting to note that the English Law Reform
Committee recommended the abolition of the present rule about market overt
in England (Twelfth Report (1966) Cmd. No. 2958, para. 3), in line with
similar developments in other Commonwealth jurisdictions (see Sutton, The
Reform of the Law of Sales (1968-69) 7 ALTA. L. Rxv. 13o, at 134-35).
For some judicial analysis of the market overt rule, and an attempt at a
definition of market overt, see Clayton v. Le Roy [1922] 2 K.B. 1031 (K.B.D.
and C.A.); and Bishopsgate Motor Finance Corporation v. Transport Brakes,
Ltd. [1949] 1 K.B. 322 (C.A.). And for some further criticism of the con-
tinued operation of the rule, see Gower, Sale of Goods in Market Overt
(1949) x2 Moo. L. REV. 371; and Ivamy, Reform of the Sale of Goods Act
(1956) CURRENT LEGAL PROBLEMS 123. See, also, Jones, THE POSITION AND
RIGHTS OF A BONA FIDE PURCHASER FOR VALUE OF GOODS IMPROPERLY
OBTAINED (1922) 33-49.
3 Brandon v. Leckie, Avco Corp. v. Borgal (1972) 29 D.L.R. (3d) 633 (ALTA.
S.C., T.D.).

VOL. 9

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