Replevin and the Paradox of English Chattel Property
Source TitleCommon Law World Review
University of Melbourne Author/sBRENNAN, DAVID
Document TypeJournal Article
CitationsBrennan, D. J. (2007). Replevin and the Paradox of English Chattel Property. Common Law World Review, 36 (4), pp.337-354. https://doi.org/10.1350/clwr.2007.36.4.337.
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In English law, property has been classified, originally by Bracton, as either ‘personal’ or ‘real’ by reference to differing remedial consequences. T. Cyprian Williams has concisely explained this to mean that the terms convey the notion of a right to compensation associated with personal property, and a right to specific restitution associated with real property. However, the term ‘property’ itself has been defined more fundamentally to express the value of a ‘right to exclude’, or as expressed in its corollary, ‘immunity from expropriation’. This raises the question whether the term ‘personal property’, if not an oxymoron, is at least a paradox by denying within its conception an as-of-right entitlement to exclude. This essay explores the extent to which the ancient action of replevin, which provides an as-of-right common law entitlement to the redelivery of a chattel, might address that paradox. In so doing it tracks the origins and evolution of replevin in England, and describes the role of replevin in modern US law. It arrives at a conclusion that replevin has survived into twenty-first century common law, and by so doing makes difficult any absolute claim derived from Bracton about the absence of a common law right to specific restitution for chattel property.
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