In law of Tort, trespass is defined as the act of invading or interfering. Trespass, in its most common forms can be:
i) Trespass to Person (Trespass viet armis)
ii) Trespass to Land (Trespass quare clausum fergit)
iii) Trespass to Goods (Tresspass de bonis asportatis)
Trespass to Goods refers to the deliberate and direct physical invasion or interference with the goods or any moveable property of another person. The use of, removal, injuring, or destruction of the goods, all of these actions, without any lawful justification constitute the offence of trespass to goods. The wrong may be committed intentionally, negligently, or even by an honest mistake. Furniture, automobiles, machinery, and a variety of chattels are examples of goods and/or private possessions. There is no need for evidence if the property is damaged. Nevertheless, in order to claim the title to sue for trespass to goods, the owner must be in current possession of the goods.
Legal definitions and provisions:
According to Black’s Law Dictionary:
Trespass is the act of committing, without lawful justification, any act of direct physical interference with a chattel possessed by another.
Conversion consists in wilfully and without any justification dealing with goods in such a manner that another person, who is entitled to immediate use and possession of the same, is deprived of them
Detinue refers to detaining of goods of another person, without any lawful justification. However, detinue is different from conversion because the plaintiff and recover the said goods from the tortfeasor when the latter wrongfully detains the goods.
However, Detinue has been abolished in England under Torts (Interference with Goods) Act of 1977, which allows for conversion remedies that were previously available under common law for detinue. In India, there is no equivalent Act. Sections 7 and 8 of the Specific Relief Act of 1963 allow for the recovery of specific movable property at the suit of a person entitled to immediate possession when the defendant is an agent or trustee for the plaintiff.
Essentials and elements:
1. The personal property/goods in question must be in the rightful possession or the plaintiff must have the legal right to possess the said property/goods
2. The tortfeasor has dominion over the plaintiff’s goods/property
3. The tortfeasor deprives the plaintiff from the possession or use of the goods/property at issue
4. The wrongful detention/destruction/interference of the tortfeasor with the plaintiff’s property/goods causes the latter some injury or damage.
Difference between trespass and conversion:
The degree of invasion to the possession of goods. Conversion involves a serious intervention to the possession of goods, where the tortfeasor alters the goods detained without any lawful justification. The damage to the personal property is so serious that the tortfeasor must be liable to pay the value of the entire property. Whereas, trespass is a lesser serious act of invasion to property. The tortfeasor must be liable only to the extent of the injury caused to the plaintiff, because of the wrongful detention of goods. The following factors determine the seriousness of intervention:
i) The extent of the tortfeasor’s control over the goods detained ii) Malicious intent behind detaining the goods/property
iii) The inconvenience or injury caused to the plaintiff due to the detention/ destruction of goods
iv) The degree of damage caused to the goods/property
Types of conversions:
1. Conversion by taking: The act of taking possession of the goods/property of the plaintiff, without any lawful justification, with the intention of having dominion over it. Merely taking possession of the goods, without the intention of having a temporary or permanent dominion over it would constitute trespass but not conversion.
2. Conversion by sale: When the tortfeasor obtains the possession of the goods/property through legal means (either they borrow the said goods, or the plaintiff gives it to them in good faith) but later dispose the obtained goods/property by sale, for a personal interest.
3. Conversion by detention: If the tortfeasor asserts their right over the possession of goods/property of the plaintiff, and refuse to deliver it back to them, it amounts to conversion by keeping. Refusal of returning the goods, with a lawful justification, does not constitute conversion by keeping. Refusal qualified by law, does not amount
to conversion by keeping. For instance, if a railway employee refuses to deliver the goods of the consignor, because the former is unsure of the latter’s title, it can be termed as refusal qualified by law and thus does not amount to conversion by keeping.
3 (i). Right of finder: In the case of Waverly BC v. Fletcher (1995), the court ruled that in case of:
a) Any object, attached to the land, when found becomes the lawful possession of the owner or lawful possessor of the land and not the person who found the object.
b) Any object, unattached to the land, when found become the lawful possession of the possessor and not the person who found the object, only if the former has exclusive rights over the land.
4. Conversion by destruction: Destructing or destroying a rightfully (or wrongfully) obtained good/property and thus permanently or temporarily depriving the plaintiff of the goods/property at issue, amounts to conversion by destruction. An illustration of the same would be the agent burning certain goods which were given to them by the principal in good faith, to take care of them.
1. Debendronath Mullick v. Odit Churn Mullick, (1878): The defendant refused to deliver the idol to the plaintiff, which prevented the plaintiff from worshipping the idol and performing religious rituals on the specified date of delivery. Thus, the act was held valid grounds for the aggrieved party to file a suit for damages and hold the tortfeasor liable for conversion.
2. Armory v. Delamirie, (1721): In this case, the plaintiff was a chimney sweeper who found a valuable piece of jewellery at work. In good faith, he went to a jeweller to ascertain its value, however the jeweller had malicious intentions. He lied to the chimney sweeper that the piece of jewellery was worth nothing, however, when the plaintiff demanded for the jewel back, the jeweller refused to return it. Thus, it was considered as a valid ground for the plaintiff to sue the jeweller for conversion.
3. Carritt Moran & Co. v. Manmatha, (1941) ILR 1 Cal 285: In the aforementioned case, the trespasser wrongfully obtained some green tea leaves from the tea garden of the plaintiff. The trespasser later dried the leaves and converted the green tea leaves into black tea leaves. The auctioneer, on behalf of the trespasser, sold the black tea leaves for monetary benefits. The court held that both, the trespasser as well as the auctioneer were liable of trespass and conversion.
1. Necessity: The defendant must be able to prove that the intervention to goods/property was an utmost necessity and was not without any lawful justification. The defendant may have to establish that there was an imminent danger to the goods/property or the possessor and thus the act of trespass was committed.
2. Consent: If the plaintiff’s consent is present in the act of trespass or conversion of goods, no legal action can be taken against the defendant
3. Inevitable accident: The defendant must establish that the interference with goods/property was the result of an inevitable accident and not intentional.
4. Jus Tertii: If the third party has better rights over the possession of the goods/property, then the legal suit for trespass might fail.
5. Incapacity: If the defendant is a minor, is of unsound mind, or is barred by law, then the said defendant is incapable and no suit can be brought against such a person.
Trespass to goods and conversion of goods are both offences under the Law of Tort. The key difference between trespass and conversion is the degree of interference in the possession and use of goods. The degree of interference is comparatively lower in the case of trespass, and higher in case of conversion because the goods in question are altered.
Several defences like ‘necessity’, ‘inevitable accident’ and ‘incapacity’ can be used against the tort of trespass to goods and conversion.
This article is written by Hiya Gandhi, of Kirit P. Mehta, NMIMS, School of Law.