The Properties of the Law: Restoring Personal Property Through Crime and Tort

Abstract

Why are the civil remedies at common law which delivery up specific moveable property to another with greater right to possess so narrow in English law? Historically the equitable remedy of specific restoration returned property more easily than even the rule today; the common law remedy remains discretionary, with the claimant having to show the value to the property that cannot be found equally easily in the market. There may be a number of reasons behind this. The purpose of this chapter is to show the role played by the widely available proprietary remedies in the criminal law, as well as the role of the conceptual structure of property law in England focussing on relative title to possess. The argument being tested is that there was less pressure to develop a civil law restoration remedy because significant practical results were being achieved by the criminal mechanisms. It is all the more interesting that specific restoration has been more significant than compensation in the criminal law (when the reverse has been true in the civil law).