Tort law (2022): Property torts: Replevin (claim and delivery)

Replevin or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses.

Etymology.

The word "replevin" is of Anglo-Norman origin and is the noun form of the verb "replevy". This comes from the Old French replevir, derived from plevir ("to pledge"), which is derived from the Latin replegiare ("to redeem a thing taken by another").

Nature.

In The Law of Torts, John Fleming has written:

From medieval times, there has also come down to us a summary process, known as replevin, by which a man out of whose possession goods have been taken may obtain their return until the right to the goods can be determined by a court of law. Replevin arose out of the need of a turbulent society to discourage resort to self-help and although for a long time primarily used in disputes about distress between landlord and tenant, it was gradually expanded to cover all cases of allegedly wrongful dispossession. If the plaintiff wanted return of his chattel in specie, replevin was a more appropriate remedy than either trespass or trover in which only damages could be recovered. Restoration of the property is, of course, only provisional, pending determination of title.

In common law, several types of action existed with respect to deprivation of possession (being subdivided into the wrongful taking of chattels and the unjust detention of them, even where the original taking was lawful):

 In the case of wrongful taking:

A writ of replevin was available only for an unlawful taking in the nature of a wrongful distress, where restitution could be made for the goods wrongfully taken (being in the nature of a redelivery of the pledge or the thing taken in distress) with damages for the loss sustained by such action. As distrained goods are in the custody of the law, any attempt to take them back by force without a writ of replevin could be contested by writ of rescous or de parco fracto, with a remedy in damages.

A writ of trespass vi et armis was available in the taking of goods, with a remedy in damages.

An action of trover and conversion was available for the non-forcible taking of goods, with a remedy in damages.

·         In the case of unjust detention:

Replevin lay to recover goods still held after a tender of amends.

Detinue lay to recover lent goods where the holder refused to return them to the owner. However, the defendant was allowed to exculpate himself by oath, so this action was displaced by that of trover and conversion.

At common law, the ordinary action for the recovery of goods wrongfully taken was originally one of detinue, but no means of immediate recovery was possible until the action was tried. Replevin arose to deal with the matter of the illegal distress of goods for rent or damage feasant, in order to procure their restoration to the owner. Illegal distress has been held to occur where:

1. no relationship of landlord and tenant exists at all,

2. there is no demise at a fixed rent,

3. no rent is due, or nondue to the person who has distrained,

4. goods have been released before the distress, or tendered before the impounding,

5. the entry was illegal, or

6. things privileged from distress (for example, neither goods nor chattel) have been seized.

Replevin will not lie where if any part of the rent claimed was due, but this defense is not effective where the only rent claimed by the landlord is not recoverable by distress.

It has been held that replevin applies to any wrongful taking of goods and chattel.