Reputed Ownership in Scots Law: An Historical and Doctrinal Analysis

Abstract

“What remedy is available to creditors seeking to exercise diligence over corporeal moveable property in the possession of their debtors, but the ownership of which lies with another? The presumption of ownership from possession offers some relief to creditors faced with an action for vindication by the true owner of the goods. But the presumption can be overcome. However, reputed ownership seeks to permit creditors to proceed with diligence when the moveables have been fraudulently, carelessly or unnecessarily left in the possession of the relevant debtor. This article will explain that the true owner is personally barred from recovering the goods, as a result of such “fraudulent” or careless conduct. Lengthy academic discussion of the doctrine in Scotland is scarce. To analyse its legal basis, reference is made to South Africa and England, which recognise the reputed ownership context as part of the general law of estoppel. This article will also explain that despite its mostly historical significance, reputed ownership still survives in the current law, within the statutory framework of the Debt Arrangement and Attachment (Scotland) Act 2002.”