"NEMO DAT QUOD NON-HABET under the Law of Sales of Goods and Supply of Services means "You can only give what you have." OR "No one can give what s/he doesn't have."
The basic principle is that a person who does not own property, especially a thief, cannot confer it on another except with the true owner's authority.
"Nemo dat quod non-habet" meaning "no one gives what he doesn't have" is a legal rule, sometimes called the "Nemo dat rule," that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title.
It is equivalent to the civil (continental) "Nemo plus iuris ad alium transferre potest quam ipse habet" rule, which means;
"one cannot transfer to another more rights than he has."
The rule usually stays valid even if the purchaser does not know that the seller has no right to claim ownership of the object of the transaction ( a bona fide purchaser ).
However, in many cases, more than one innocent party is involved, making judgment difficult for courts and leading to numerous exceptions to the general rule that aims to give a degree of protection to bonafide purchasers and original owners. The possession of the good of title will be with the original owner.
In GREENWOOD v. BENNETT (2003), the defendant was the original owner of a car and he entrusted a man named SEARLE with the car so that he could carry out the repairs. SEARLE used the car for personal purposes, consequently crashing the car and causing tremendous damage. Thereafter, he sold the jaguar to a garage owner named HARPER, for £75. HARPER, was unaware that SEARLE was not the owner of the car. HARPER, spent £226 to repair the car and sold it to a finance company.
The Court held that the plaintiff was the owner of the car and since SEARLE did not have a title over the car, he could not transfer the title to HARPER. For the same reason, HARPER, could not transfer the title of the car to the insurance company because he was not the rightful owner. The plaintiff got his car back, but he had to reimburse HARPER for the money he spent on repairs.
It is necessary to understand why a person cannot transfer a greater title to someone than the one he himself/herself has. The nemo dat rule has its roots in jurisprudential concepts of possession and ownership. It casts clarity on the capabilities to possess a certain title and the extent of powers a person would have over a property. The same would determine whether a person could transfer the rights with respect to the property and if so, to which extent.
✓POSSESSION
Possession is the state of having something in one’s control. Possession is fulfilled when animus possidendi and corpus possessionis is achieved.
•Animus possidendi refers to the intention or claim to have exclusive possession over something. The claim shall be exclusive in a manner that expressly excludes others. Such possession does not necessarily require to be absolute. Further, the desire or a claim to possess something does not signify that the person wishes to use the property as an owner.
The animus could be legal or illegal. The test of exclusion of others from the establishes whether the animus is legal or not. For instance, a tailor having a cloth in his possession to stitch a dress does not intend to exclude the owner of the cloth from using it or taking it back.
Corpus possessionis refers to the physical control over a property. This is the objective element of possession. It states that the intent to exclude others from interfering with the property shall be accompanied by a physical exercise over the property. Without an act, the establishment of intent would be difficult.
Possession could be of two types:
Possession in fact, or de facto possession.
Possession in law, or de jure possession.
A person could possess a property in three ways:
Possession in law but not in fact; or
Possession in fact but not in law; or
Possession in both, fact and law.
The difference between de facto possession and de jure possession could be explained through an example of a landlord and a tenant.
The tenant is the resident of the property but the property legally belongs to the landlord. In such a case, de facto possession resides with the tenant and the de jure possession is with the landlord. Mere physical possession of a property does not suffice for de jure possession.
De facto possession is not recognized by law but de jure possession is. It is so because the general assumption signifies that a person who has the de jure possession of a property is the owner of the same and can exercise the ownership rights on the same, which includes the transfer of property.
A person who has the de jure possession of a property would not be entitled to transfer the ownership or the property to someone else unless he/she is the owner or empowered to act on behalf of the owner while doing so.
It simply means that their title is merely to possess the thing, nothing more. To transfer the ownership, they would require a greater right.
For instance, if an owner of a house living abroad hires a broker to sell the house in his home country, the broker would have physical possession of the house and will be empowered to find prospective buyers and could even seal the deal but the final decision would always be on the owner because he possesses the required title.
✓OWNERSHIP
Except under exceptional terms, only the owner of an object or a property has the right to transfer the title of the same to someone else. Such ownership could be corporeal or incorporeal.
Corporeal ownership is exercised over tangible things and incorporeal ownership is exercised over intangible things.
Generally, mere possession, as stated previously, is not sufficient for the transfer of title. This gives rise to the query- what constitutes ownership?
The following are the essentials of ownership:
1 Ownership is indefinite on the user’s part. The owner has a right to possess and use the thing. While an owner does not have a duty to use the thing, others have a duty to not use or interfere with the use of such a thing unless the owner permits the same.
Example: bailment or mortgage. It can be observed that this is in accordance with "animus possidendi" wherein the intent to possess something is coupled with the exclusion of interference by others.
2 Ownership is unrestricted in point of disposition. The owner could dispose of or alienate the property during his lifetime or after his death by a will. A person who possesses the thing but is not the owner cannot transfer the right of ownership.
This is based on the maxim, “he who has not can give not” ("Nemo Dat Quod Non-Habet")
3 The owner has the right to possess the thing he owns. It is immaterial if he has actual possession of the thing or not. For instance, if you lend your car to someone, you have merely transferred the possession of the car. The right to possess the car, however, still remains with you.
4 The owner has the right to exhaust the thing in the event of using it if such is the nature of the thing.
5 Ownership has a residuary character. The owner may part with certain rights associated with the thing, but the residuary rights are enough to continue to regard him as the owner. For instance, giving out the property on rent or on lease.
6 The owner has the right to destroy or alienate the thing.
A person who fulfils these essentials would be regarded as the owner of the property. Fulfilment of these conditions would also establish the presence of de jure possession of the property since the owner has legal title over the possession of the thing. Fulfilment of de facto possession would remain subjective if the owner could not also be in physical possession of the thing.
REFERENCES
1 An article written by Vandana Shrivastava, a student of B.A.L.L.B.(Hons.) at the Institute of Law, Nirma University, Ahmedabad. To lay down the jurisprudential aspect and legal application of the Nemo dat rule along with legal exceptions to the rule.
2 Zetter, Kim (2011-08-31). "Couple can sue laptop-tracking company for spying on sex chats". wired.com. Retrieved 2011-08-31.
3 William Blackstone (1753), Commentaries on the Laws of England, Book 2, Chapter XXX "Of title by gift, grant, and contract": "But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods; for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man and man must soon be at an end. And therefore the general rule of law is, that all sales and contracts of any thing vendible, in fairs or markets overt, (that is, open,) shall not only be good between the parties, but also be binding on all those that have any right or property therein."
4 Sale of Goods (Amendment) Act 1994(PDF). Her Majesty's Stationery Office. 1994. ISBN 0-10-543294-6.
5 Kenneth Reid, Banknotes and their Vindication in Eighteenth-Century Scotland (May 1, 2013)
By ARYAMANYA RODRICK, Esq.
aryamanyarodrick21@gmail.com
+256 750362198
+256 786326358
Res Ipsa Loquitur
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