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This chapter explains the compositional logic lying being the series of laws on animal theft, burglary, crop destruction, and deposit in Exodus 21:37–22:8. Here the Covenant Code has used the technique of cross-referencing to laws in other places of Hammurabi's text or to other sources. The chapter explains that the law about the resolution of legal claims in 22:8 is a general law, comparable to the talion law in 21:23–25, also a general law. These laws are summaries that allow abridgment of the source as well as set down principles that operate in their respective sections of legislation. The chapter also explains that the out-of-place burglary law in 22:1–2a was conceptually created with the deposit law of 22:6–8 and only secondarily received its present position.

This chapter questions the tendency of property law to bestow more generous protection against dispossession due to debts or other losses to residential property than to personal or commercial property or leasehold interests (i.e., renters). Contrary to this pattern in property law, the empirical psychology research on homes suggests only moderate psychological importance to maintaining ownership of one’s particular home, and substantial attachments and psychological interests in personal and commercial property. From the perspective of psychological loss, the strong property protection afforded to homes under tenancy by the entirety and homestead exemptions may be outsized. Conversely, the more limited protection of personal property and compensation for its loss under laws such as bankruptcy exemptions and bailment may be inadequate.

Bailment is a distinct legal relationship that exists whenever one person (the bailee) is voluntarily in possession of goods which belong to another (the bailor). The bailee gets a special property while the bailor retains the general property. Common forms of bailment are carriage of goods, delivery for custody, or repair, hire, pledge, and loan. The concept of bailment underlies many modern commercial transactions such as title retention, marine salvage, and finance leasing. This chapter discusses the definition and general character of bailments; principles common to all bailments; gratuitous bailments and bailments for reciprocal advantage; bailments for reward or reciprocal advantage; attornment, sub-bailment, and other ambulatory bailments; and involuntary and undisclosed bailment.

The passage commencing Exodus 22:6 and extending to the end of verse 14 forms the basis of the rabbinic classification of the ‘four guardians’. Each type of bailee is based by the rabbis on one section of this passage, and the liabilities of each class are distinguished. The history of early rabbinic law in this area manifests an underlying principle: where the bailment is unilaterally for the benefit of one party or the other, whether it be the bailee or bailor, the risk entailed in the bailment falls primarily upon the party who has such unilateral benefit; where the bailment is bilaterally for the benefit of both parties, there is a more equal division of the risks. The biblical basis for this standard of liability of the gratuitous bailee lies in Exod. 22:7, where a special procedure, involving the divinity, is used where the deposited property has been stolen (but the thief has not been found), in order to determine whether the bailee ‘put his hand to’ the property of his neighbour.

This chapter focuses on the two halves of Sir William Jones's life. The first part focuses on his approach to law before the move to India, concentrating on the Essay on the Law of Bailments. The second, briefer, part examines his conception of law after his appointment to the Bench in Calcutta. It shows how, even though he went on to devote a great deal of attention to classification in the natural world, unlike Peter, Jones did not apply the same approach to the analysis of the law.

This chapter states the common law doctrine of privity by which a contract is enforceable only by and against the parties to it, and the equitable ‘trust’ exception to the doctrine. It considers whether contractual exemption clauses can benefit or bind third parties: e.g., by virtue of the doctrine of ‘vicarious immunity’, of drafting devices such as ‘Himalaya Clauses’ and of the concept of ‘bailment on terms’. It discusses Beswick v Beswick (1968), where a promise to pay money to a third party was, though not enforceable by that party, specifically enforceable in her favour by the promisee. It considers how that contract could have been made enforceable by the third party, whether the promisee could recover damages in respect of the third party's loss and whether that party could now enforce the contract by virtue of the legislative reforms in the Contracts (Rights of Third Parties) Act 1999.

This chapter discusses ownership, succession, bailment, and sale and grant. By the late twelfth century the distinction between movables and immovables, familiar in later English law, is clear. The Dialogue of the Exchequer says of the fugitive convicted ‘through the set law of the assize’ that ‘all his movables [mobilia] fall to the treasury, but immovables to his lords’. The movables here are the chattels [catalla] of the Pipe Rolls, as the Dialogue itself indicates. The distinction between movables and immovables was made partly under the influence of the learned laws, and Glanvill distinguishes res mobiles and res immobiles in his treatment of debt, where his language shows particular Roman influence. In the thirteenth century, chattels came to include other rights such as leases for terms of years, wardships, and control of marriages, what would come to be known as ‘chattels real’. This change leaves some marks on Bracton but not, it seems, on Glanvill.

The conception of a use of lands differs little from that of a bailment of a chattel, and both transactions were actuated by much the same sort of motives. The medieval lawyers were incapable of devising suitable remedies when the same sort of transaction was carried out not with chattels but with land, nor did they find it easy to prevent such transactions being used for fraudulent purposes. In the Middle Ages it was the Chancellor who supplied the first defect and the legislature the second.

This chapter examines the common law rights of ownership and possession in some detail. The difficulty of understanding possession comes into focus with the circumstances of its acquisition and loss, since these are the events that attract the primary concern of law. The second section considers the general features of how possessions are acquired, before dealing with the issue at further length through a study of the cases on finding. The third section discusses the relativity of ownership, general and special property, indivisibility and co-ownership, equitable interests in personalty, and contractual rights in respect of chattels. The fourth section describes bailment. The last section of the chapter considers transferring possession.

Much of the basic property law described in the preceding chapters is similar to that found in other legal systems which recognize private property but, for reasons which are largely historical, common-law countries make great use of a number of concepts, techniques, habits of thought, and simple jargon which have no counterparts elsewhere. Some have already been alluded to, and this chapter provides a fuller, if still brief, description of their basic features. The chapter focuses on tenure, estate, bailment, the persistent reification of relations, the apparently ineradicable distinction between ‘law’ and ‘equity’, the trust, and ‘tracing’ (or real subrogation).

The action of detinue was unsatisfactory for plaintiffs in that defendants could escape by waging law, and indeed could truthfully deny a detainer of goods if they had destroyed or parted with them. The action on the case offered a solution. This chapter shows how it was first used against bailees who converted goods by damaging or destroying them. The extension to finders, including constructive ‘finders’, by a subtle shift in the meaning of ‘conversion’, provoked a controversy between the King’s Bench and the Common Pleas similar to that over the use of assumpsit to replace debt. It was resolved in favour of allowing the action, but with the qualification that not every detainer was a conversion. In its settled form, ‘trover and conversion’ was an action to try the relative title of the parties rather than an action in tort based on fault.

This chapter shows how actions on the case were used to obtain compensation for various forms of harm caused by negligence even when there was no undertaking to use care. Early examples were those brought on ‘the custom of the realm’ against innkeepers and those who failed to control domestic fires. The arguments over what defences could be pleaded in such actions show that liability was generally strict. Although a later custom of the realm was invented for use against carriers, it was not necessary to formulate more customs, since a custom prevailing throughout the realm was common law. Miscellaneous examples are found of actions for negligence per se, for instance in respect of accidents arising from hazards in public places, and these were eventually seen as representing a general principle of common law that everyone should take reasonable care not to injure his neighbour.

This chapter is concerned with the writ of detinue, which was very similar to, and in some cases had the same wording as, the writ of debt. It lay for specific chattels detained from someone with a better right to them, and the pleadings in the reported cases show the various kinds of claim which could be brought within the same formula. Detinue on a bailment rested on a direct transaction between the parties, but detinue could also be based solely on property, where a defendant had obtained possession of goods formerly in the plaintiff’s possession but without acquiring title from him. The principal species of the proprietary form was detinue sur trover (‘on a finding’), the ‘finding’ being open to fiction. The scope for special pleading in detinue was limited; but it came to be established that the liability of a bailee was stricter than that of a finder.

This chapter considers the history of the law governing movable chattels, which was different from the law of real property and of chattels real (such as leases of land). The basic principles changed little over time. The chapter explores the ways in which property in movables could originate, the modes of transfer, the ways in which property could cease, and how far future interests could be created in chattels. The remainder of the chapter deals with the remedies to protect chattels, beginning with detinue and its defects. Actions on the case lay from the fourteenth century for damaging goods. The action on the case called trover and conversion, which rested on a fictitious loss and finding, came from the sixteenth century to be the usual action for misappropriating goods. Though in form an action in tort, it gradually became a proprietary action.

Since it is not possible to fully understand a rule unless one understands its grounds, this chapter seeks to identify the grounds of the rules that confer proprietary interests on possessors. It argues that there is a genuine obligation-based reason for conferring a right to exclude on possessors who owe a special duty to keep the chattel safe, but that this is not, and has not been regarded by the law as, a reason to institute rules that confer general property interests on possessors generally. The chapter goes on to argue that the rules that confer proprietary interests on possessors are primarily based on the genuine need to provide greater certainty over title to chattels and (unregistered) land and greater security to those who possess or deal with such things.

This chapter presents the doctrines that support the notion of ‘transferable deposit’ as the historical explanation to ‘bank money’. It discusses the medieval practice of bailment of money as the ancestor of the bank deposit, and the emergence of the modern legal doctrine of the bank deposit from the medieval bailment of money. As a legal concept, the bailment of money denotes the delivery of money for a particular, or in effect, any given purpose. Where the purpose was not carried out, inasmuch as the bailee was not obligated to keep the specific coins separately, he was not liable to the bailor for the money in detinue. The chapter connects this notion to the modern monetary system where both ‘central-bank money’ and ‘commercial-bank money’ are in the form of credit to a bank account and the extinguishment of one debt, and the creation of another, facilitate a legal basis for the ‘transferable deposit’ and its use as ‘bank money’.