Why does the Sale of Goods Act 1979 haphazardly waver between
transferring PROPERTY vs. TITLE?
When the act uses the phrase "property in", those words could have been dispensed with in idiomatic English (with grammatical adjustments to get agreement in number), as it was in the Uniform Commercial Code in the U.S., or could have been replaced with the more idiomatic terminology "ownership of", rather than the quirky and outdated phrase "property in".
This was not done in an effort to preserve the language of the Sales of Goods Act 1893 which the Sale of Goods Act 1979 replaced.
This was not done, in part, to bring about continuity with the existing case law arising under the Sale of Goods Act 1893 that uses that terminology (i.e. to make the new law back compatible with old case law rules), and in part, because the original wording of the Sales of Goods Act 1893 was praised by many commentators as a model of drafting clarity and brevity:
The 1979 Act was preceded by the UK's original Sale of Goods Act of
1893, a statute drafted by Sir Mackenzie Chalmers. The success of both
the 1893 and 1979 statutes was largely down to their conciseness and
to Sir Mackenzie's clarity of expression.
For what it is worth, like the person asking the question, I'm not as impressed as the commentators on this score, but that is still part of the reason it was done.
The back compatibility issue, however, is particular salient, because the Sale of Goods Act 1893 was widely adopted as the template for statutes in almost all commonwealth countries, so the language used in it is part of the case law that developed interpreting it not just in England and Wales, but in Ireland, and also in Australia, Bangladesh, India, Canada, and New Zealand.
Also, the terms used in the Sales of Goods Act 1893 themselves were drawing on even older common law case law, developed on a piecemeal basis in England and Wales, when the English language was different than it is today:
The Sale of Goods Act 1893 is considered to be classic example of a
codifying statute; that is, it draws on established judge-made common
law principles and converts them into a more accessible statutory
form. This Act of Parliament was so well-drafted that, when it was
repealed and reenacted, the successor Sale of Goods Act 1979 was
instantly familiar, sharing the same structure, phraseology and even
numbering as the 1893 Act
.
Body Text Questions
It feels haphazard for the SGA 1979 to oscillate between referring to
transfer property most times, but title other times. Can you please
ratiocinate these oscillations?
What happens if you replace all the property with title? And what if
you replace all title with property?
The distinction between the use of the phrase "property in" and "title" in the Sale of Goods Act 1979 isn't really as haphazard as you perceive it to be.
When the Act refers to "Property in" it is referring to "all property rights in" goods, a.k.a. "[true] ownership of" goods.
When the Act refers to "Title" it is recognizing that there may be a person who has a claim to legal ownership of the goods, called "title", that may or may not coincide with true ownership of the goods in circumstances that could arguably create ambiguity over who owns the goods.
The act then clarifies when someone has true title that coincides with ownership of the goods and specifying when ownership passes in those cases which is relevant for a variety of legal purposes. It also clarifies when an agent of the seller, or intermediary who is not an agent of the seller, can transfer ownership and true title to goods.
The act also clarifies when someone has "void title" that vests no ownership rights in the goods and can't transfer any ownership rights in the goods. The first person to claim a void title is basically a thief or a fraudster. But good faith purchasers for value from a person with void title are innocents whom the law has decided should bear the consequences of having a bad chain of title because they or their predecessor dealt voluntarily with a thief or fraudster, while the true owner did not.
Finally, it clarifies when a person has "voidable title" that is a right of ownership with possession that is not inherently wrongful (because sometimes the defect in the transfer of the goods to the person with voidable title isn't one that the true owner cared about and would never have exploited to get ownership of the property back) and is superior to anyone but the true owner of the goods. A sale of goods by a person with voidable title will pass true title to a good faith purchaser for value, but can be invalidated and revert title to the true owner if the true owner insists that the person with voidable title or a successor in interest of the person with voidable title who is not a good faith purchaser for value does so.
Someone typically acquires voidable title because not all conditions to transfer true ownership from the owner to the person holding voidable title occurred in a manner that makes lack of ownership of the goods by the person with voidable title hard to determine.
Generally someone who has voidable title acquired it through some voluntary interaction with the true owner that was abused in some fashion.
For example, someone who is entrusted with goods on a consignment basis who has retained the goods after they should have been returned to the owner might have voidable title. So might someone who acquired title to the goods through an abuse of a confidential relationship or through fraud in the inducement of the sale. Or, someone might have acquired it in a foreclosure of collateral that was defective in some respect.
In summary, the SGA 1979 rules regarding title are as follows:
Sections 16 to 26 concern a contract's effects, and in particular the
transfer of property and title. Under section 16, property (ownership)
cannot pass unless the goods are ascertained (the actual goods to be
sold are identified). Section 18 provides presumptions to determine
when property will pass, both for specific goods (ascertained at the
time of the contract) and goods unascertained at the time of
contracting. These 'rules' can be excluded by contrary implication or
express agreement.
Rule 1: in an unconditional contract for sale and delivery of specific
goods in a deliverable state, property passes immediately on contract
formation.
Rule 2: where the seller is bound to perform some condition before the
sale is possible, property passes when this condition is performed.
Rule 3: where the seller is bound to measure or weigh the goods to
ascertain the price, property passes when this is done and the buyer
is notified.
Rule 4: when goods are delivered on sale or return, or on approval,
property passes when the buyer adopts the transaction (or fails to
give notice of rejection within a reasonable time).
Rule 5: in a sale of unascertained goods, the property will pass
following an unconditional appropriation of goods or, where the sale
is from a specified bulk, following ascertainment by exhaustion (i.e.
removal of all the goods in the bulk but those destined for the
buyer).
Seller does not have title
if the seller does not own the goods, the buyer generally cannot gain
title, but he can sue for breach of the implied term as to title.
This is subject to numerous exceptions in closely defined
circumstances, for example: s.2 Factors Act 1889, ss. 21, 24, 25 SGA
1979.
Seller has voidable title
where the seller holds voidable title, title can pass to a buyer in
good faith. If title is voided before the contract of sale is
concluded, title cannot pass.
The doctrine of voidable title is the reason that there needs to be distinction between the concept of "title" and the concept of "property in" which is more idiomatically called true ownership, which is a distinction that could otherwise be dispensed with.
The voidable title doctrine is a cousin of the concept of adverse possession, that also reconciles discrepancies between ownership determined by a chain of title correctly determined, and possession under the appearance of ownership.
The voidable title doctrine provides that, under certain circumstances, good faith purchasers for value of goods from people with voidable title to goods who have the appearance of being genuine owners of goods, are in fact a genuine owners of those goods, despite not having a clean chain of title all of the way back to the creation of good.
This is done in order to make it impossible to dispute ownership rights in goods with proof remote from the present day reality in a lawsuit, for reasons that the purchase of the goods couldn't have guarded against in a reasonable manner.
People with voidable title are basically people who gain possession of goods in a manner that puts them in a position where a purchaser of goods has no way to determine that the seller isn't the true owner of the goods, when that possession arises in a manner that is in some way due to the carelessness or misplaced trust of the true owner of the goods, rather than due to outright theft.
English law also distinguishes between "legal title and ownership" and "equitable" ownership of property. There are circumstances in trust law which predates the Sale of Goods Act 1893, in which that distinction is made. Also, in informal chattel mortgages in which the seller retains title to the property sold solely as security for non-payment of the goods by the buyer that is intended to make the goods mere collateral for an obligation rather than to give the title holder true right to possess and transfer ownership of the goods (subject only to the obligation to pay, and to pay off in full if the goods are transferred), the legal title owner is not considered the true owner of the property, in a legal development mostly postdating the Sale of Goods Act 1893.
But those distinctions between legal title to property and equitable ownership of property aren't really what the Sale of Goods Act 1979 and Sale of Goods Act 1893 itself are getting at, even though one way to think about the voidable title doctrine is that voidable title is legal title and the rights of the true owner of property in which someone else has voidable title is a form of equitable ownership.
