Reappraising Delivery: Form, Function, and Justification

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I. Research TopicThe proposed research will aim to work out, understand, and better conceptualise the mechanics of transfers of legal title to chattels by delivery.II. Research Context:Since the end of the 15th century, the common law has recognised three modes of transferring legal title to tangible chattels: sale, deed, and delivery. Of these, delivery is the oldest. However, its form, the mechanisms by which it operates (both legally and physically), and its justification remain understudied. The extent of the uncertainty that exists in this area is best demonstrated through an example. Say A wishes to gift B a ring that has for long been owned by A's family. Whenever the ring was transferred, the recipient also received a letter. A and their family have come to associate this letter with the ring itself. A gives to B only the letter and tells B that the ring is now theirs, the ring being held in a manor far away. As a matter of positive law, it is unclear whether A's acts are sufficient to transfer A's title to B, and, if sufficient, how this transfer ought to be conceptualised. If the butler of the manor were to write to B separately, informing B that they now hold the ring on B's behalf, this would likely be sufficient to transfer A's title to B. However, it remains unclear why writing from a third party might be sufficient, whereas mere words or writing from A will normally be insufficient. The above example serves to illustrate that much of the law concerning delivery remains obscure. One notable contribution has been driven to find that the need for delivery to transfer legal title cannot be justified and is a mere remnant of earlier law. However, this conclusion cannot be so plainly accepted. The conclusion is unsatisfactory in light of the increasingly important role delivery is playing in our law and given the rich continental scholarship on the substantially similar concept of traditio which was unaddressed by that contribution. This project is an attempt to provide a coherent rationale for delivery in English law.This project seeks to make three valuable contributions to personal property scholarship. First, the project will be a valuable contribution in its holistic account of the positive law on delivery. Secondly, as delivery interacts with a number of fundamental concepts in property law, such as possession and attornment, the project will provide a valuable account of how these concepts function in the conveyance setting. Finally, insofar as there are calls for new regimes for the transfer of title to chattels, an analysis of the various issues involved with delivery, and its best justification, will be helpful in drafting alternative legislation to the Sale of Goods regime. III. Research Methods:The proposed research is wholly doctrinal. It aims to develop an accurate and conceptually satisfactory account for the operation of delivery as a means of conveying legal title to chattels. In doing so, this research will require substantial comparative scholarship. Roman and continental systems have a closely analogous concept, known as traditio. A careful study of Roman, early modern civilian, and modern German and French scholarship will help identify important questions that an account on the English concept of delivery must address. For example, a civilian lens may help assess what degree of control (e.g. detention or possession) must be transferred for an effective delivery). The research will also require some degree of historical analysis of the law and the relevant legal decisions. In particular, the influence of civilian systems and scholarship on the English legal profession during the 17th and 18th centuries will be particularly important in understanding the reason for changes in the law governing delivery.