Abstract

The common law has long maintained that, where a defendant has tortiously interfered with a chattel that was in the claimant’s possession at the time of the wrong, the claimant is, in general, to be presumed to be the ‘absolute and complete owner’ of the chattel. It is argued in this article that the rule lacks a satisfactory justificatory basis: the justification that has been endorsed by the courts is fatally flawed, and the main alternative justifications that have been advanced in the academic literature are also unsatisfactory. If an adequate foundation cannot be found, the rule should be abolished and, if it were to be abolished, there are, it is suggested, good reasons to introduce a similar, but importantly different, rule of presumption.

中文翻译：

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对动产的侵权干扰的占有和损害赔偿

摘要

普通法长期以来一直坚持认为，如果被告在错误发生时以侵权方式干预了索赔人所拥有的动产，则索赔人通常被推定为“绝对和完全所有者”。动产。本文认为，该规则缺乏令人满意的正当理由：法院认可的正当理由存在致命缺陷，学术文献中提出的主要替代正当理由也不尽如人意。如果找不到足够的基础，则应废除该规则，如果要废除该规则，则建议有充分的理由引入类似但重要的是不同的推定规则。