E. Intentional interference with chattels

There are four nominate intentional torts protecting interests in chattels: [Note 132: Chattels include all property other than land. ] trespass to chattels, detinue, conversion, and the action on the case to protect an owner's reversionary interest. Each has a discrete, though overlapping, role in the protection of interests in chattels. In practice each tort is commonly associated with a different form of interference with chattels. The typical case of trespass to chattels is that of intentional damage to a chattel in the physical control of the plaintiff. Detinue typically applies where the defendant refuses to return the plaintiff's chattel to her. Conversion commonly applies where the defendant has taken the plaintiff's chattel. The action on the case to protect the owner's reversionary interest applies to permanent damage to the plaintiff's chattel which occurred when the chattel was in the possession of someone else. These are, however, gross generalizations and the definition of each tort is not restricted to these typical situations. Moreover, a single fact situation may give rise to a number of causes of action. The plaintiff may choose the most advantageous remedy. These nominate torts are supplemented by replevin and the recaption of chattels, which are procedures designed to secure the timely return of chattels that have been wrongly taken or detained by another person.

1) Trespass to Chattels

Trespass to chattels is the oldest of the torts of intentional interference with chattels. It applies where the defendant directly and intentionally (or negligently [Note 133: The burden of proof is on the defendant to prove an absence of intention and negligence. In practice the tort of negligence will be used to remedy damage caused by a direct negligent act.] interferes with a chattel in the possession of the plaintiff. Trespass to chattels protects possession rather than ownership. Indeed, a person in wrongful possession may bring an action in trespass against anyone except an owner with a right to immediate possession. This emphasis on possession reflects the fact that the main priority of the early common law was to minimize violence. The law sought to prevent violent confrontations over the possession of chattels where title lay in the hands of an owner out of possession who was not exercising his ownership rights. The solution was found in protecting the person who had physical control (possession) of the chattel. An owner out of possession such as a bailor of a chattel for a fixed term cannot, therefore, sue in trespass. [Note 134: This rule is, however, qualified by the concept of vicarious possession. This allows an owner to sue when his employee, agent, or bailee at will has possession of his chattel.]

Any direct interference with a chattel is actionable, including damage, destruction, taking, or movement of it. In practice, trespass is most commonly used where a chattel has been damaged or where there has been some minor unauthorized use or movement of the chattel. The destruction or taking of chattels is usually remedied by the tort of conversion or the tort of negligence. Knowledge that the interference is wrongful is not required. Mistake is no defence.

It is not clear if trespass to chattels continues to be actionable without proof of damage. One view is that the traditional rule plays a useful role in preventing people from touching valuable art and museum pieces and in providing a remedy for the unauthorized moving or temporary use of chattels. The other view is that unless goods are taken, damage should be an essential element of liability since there is no pressing policy need to protect a dignitary interest in the inviolability of chattels.

The remedy for trespass to chattels is an award of damages. The measure of damages for a damaged chattel is the reduction in its market value or the cost of repairs where that is less. The market value of the chattel is the appropriate measure for the taking or destruction of a chattel.

2) Detinue

An action in detinue is available where a person with a right to the immediate possession of a chattel has requested [Note 135: The unauthorized possession of another's chattel, in itself, is not wrongful. It becomes wrongful when the defendant denies the plaintiff's right to it. Consequently, a bailee who merely continues in possession after the term of a bailment has expired is not acting wrongfully until he denies the bailor's right to it.] its return from a defendant who has possession of the chattel or who had possession of it but lost it as a result of a wrongful act. [Note 136: For example, a bailee who lost possession of the chattel as a consequence of an intentional or negligent act.] The tort protects the plaintiff's right to the chattel and focuses on the defendant's denial of the plaintiff's rights by refusing to return it. A demand for the chattel by the plaintiff and a refusal by the defendant to return it are normally essential components of the cause of action. The demand alerts the defendant to the plaintiff's claim to the chattel and provides an opportunity for the defendant to return it to its rightful owner and, thereby, avoid liability. It is probably not necessary to make a demand if it is clear that the defendant is determined to keep the chattel, thereby making a request futile.

Unlike trespass and conversion, detinue may be remedied by an order for the return of the chattel. The most common remedy for detinue is a judicial order that the defendant either give up the chattel or pay for its value and pay damages for its detention. Alternatively, a court may award damages for the value of the chattel and damages for its detention. Less commonly, an order may be made for the return of the chattel with damages for its detention. [Note 137: The three forms of the remedy for detinue are set out in General & Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd., [1963] 1 W.L.R. 644 (C.A.).] This order is appropriate where the chattel is not easily replaceable, such as an heirloom, jewellery, or unique industrial or commercial equipment or machinery.

Since the essence of the tort is the refusal to return the chattel, an action may be defeated by the defendant returning the chattel before judgment is given. Furthermore, since the tort is a continuing one arising out of the persistent failure of the defendant to comply with the request to return the chattel, damages for the value of the chattel are assessed at the time of judgment rather than the date of the initial refusal to return it. This may be contrasted with the general rule in conversion that damages are assessed at the time of the conversion.