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Research Proposal

by
RANJITH KODITUWAKKU – Bucks Registration Number - 21808162

Research Question:

The extent to which ‘Estoppel’is effective as an exception to ‘Nemodat quad non habet’ rule.

Research statement:
“Transfer of title’ is an essential component of legal aspect with regard to sale of goods. The
seller is required to transfer the title of goods to the buyer. This further requires delivery of
possession of the goods to complete the sale. It is a common rule and it has also been added to
the Sale of Goods Act1that a seller cannot transfer the goods unless he has the title to the goods
that he intend to transfer same. However, it is a frequent occurrence that goods are transferred
without the ownership which gives rise to disputes that end up in courts. In such sale of goods
the buyer may be an innocent party who is taking the possession of the goods by making
payment. What would be the position of an innocent buyer in this type of a situation? Can
justice be served for an innocent party?
Lord Denning discusses this matter in Bishopsgate Motor Finance Corpn Ltd v Transport
Brakes Ltd2as follows.
“English Law has struggled during it evolution in deciding with two principals. The first
principle is that how the court can protectproperty by following the rule that no one can give a
better title if that person has no title to it. The secondprinciple is as to how a commercial
transaction can be protected.An innocent party who makes a purchase of goods in good faith and
for value without notice of a previous defect should get a good title.”
The Latin maxim regarding the transfer of title is “Nemodatqoud non habet’ .This means if the
transferor of goods does not have a good title toit, he cannot confer a title on the transferee. The
objective of this maxim is to protect the real owner of the goods from fraudulent transactions
without the knowledge of the legitimate owner.Such transaction could be illegal primafacie and
no title will be passed to the buyer. This rule is also shortly referred to as ‘Nemodat’ Rule.This
rule has not been applied to the black letter as we find exceptions to this rule, one such exception
is ‘Estoppel’. In this research I will focus on ‘Nomad dat’ rule on transfer of titlewith regard to
1
[1893]
2
[1949] 1 KB 322
physical goods and negotiable instruments and the effectiveness of Estoppel in protecting a
commercial transaction.
The doctrine of ‘Nemodat’ is summed up in Jeromy v Bentley& Co3. In this case the owner of a
ring passes the possession to another party to be sold by communicating the expected price
within a given period. That person sells it but neither of conditions set are not met.The original
owner claimed the ring back from the innocent party who buys it without knowing that it belongs
to someone else. Following the Nemadat rule, the court held that title is not transferred from the
original owner despite the fact that the innocent party has paid for it. However, Estoppel may
apply in cases where the buyer based on the seller’s conduct or mistake goes through the
purchase resulting which the owner prevents from denying the transfer of title to the innocent
buyer. This is called estoppel where the innocent party get the title as an exception to the
Nemodat rule. In Henderson & Co v Williams4a merchant had 150 bags of sugar in a warehouse
under his name. The merchant was induced by a fraudster to authorize these bags to hold on to
the fraudsters order which were then sold to an innocent party upon confirmation from te
merchant that fraudster held the goods to his order and disposal. The merchant having discovered
that he has been defrauded claimed the goods based on Nemodat rule. His claim fails as he is
estopped by his conduct.
The author of this dissertation is interested in Commercial Law as the author’s professionis
banking that deals with lending to merchants for purchasing goods. In such dealing the
merchants also use negotiable instruments such as chequesand bills of exchange intheir routine
cause business. Hence, applicability of ‘Nemodat’ rule in negotiable instrumentsand the Estoppel
as an exception is also an interesting area of the author.The author is also interested in enhancing
the knowledge in this area of law as there is subject has a direct bearing in his field of profession.

The objective of the dissertation.

The objective of the dissertation is to discuss the extent to which ‘Estoppel’ is effective as an
exception to ‘Nemodat quad non habet’ rule. In this pursuit the author will discuss the
applicability of the Nemodat rule, to what extent this rule is applied to the black letter and
Estoppel as a deviation/ exception that the courts of Law allowed in order to safe
guardcommercial transactions. The author will also explore the general exception to this rule
with regard to negotiable instruments and how that exception is deliberately excluded in
negotiable instruments to seek refuge in ‘Nemodat’ rule and effectiveness of same as decided by
the courts.

3
[1952]2 All ER 114
4
[1895] 1 QB 521
Research Methodology
The research will follow qualitative research methodology based mostly on secondary data
meaning it will be based on desk/library research. This is due to the fact that the author lives out
of the United Kingdom and has no direct accessibility to UK to carry out an empirical study on
the subject matter. The author will also strive to adopt triangulation method of research to add
value to the discussion.
The opinions of authors of books on commercial law and banking will also be taken in to
consideration in arriving the objective of the dissertation.
Key Resources intended to be used in the research are statutes, case law, text books, journal
articles, web-based and online articles etc which are appended in the Bibliography.

Structure of the dissertation:

The dissertation will follow the standard structure with an abstract, with chapters covering the
ambit of ‘Nemodat’ rule as a common law rule, how is has been applied in disputes with regard
to transfer of title, he general exception of this rule with regard to negotiable instruments, how
‘Nemodat’ rule is incorporated back to negotiable instruments to seek refuge of this well
routed common law principle, the exception ‘Estoppel’ to the rule with regard to sale of goods,
and the exceptions with regard to negotiable instruments by way of estoppel when Nemodat rule
applies supported by literature review and a conclusion based on the research topic.

Time Allocation and mile stones


While coping up with work – life balance which I have already mastered with long experience by
holding high positions in my organization while pursuing higher studies, I am optimistic of
allocating two hours daily during week days and minimum five hours at weekends and other
holiday in accomplishing the delivery of the dissertation.
Target dates of milestones to be achieved is as follows.

Action 04 10 16 24 30 15 28 05 10
June June June June June July July Aug Aug
2019 2019 2019 2019 2019 2019 2019 2019 2019

Drafting of Research Proposal


Submission
Working on literature review
Literature review submission
Working on thesis literature review
Analysing of case fatcs
Drafting outline structure
Thesis submission

Task 04 10 16 24 30 15 28 05 10
June June June June June July July Aug Aug
2019 2019 2019 2019 2019 2019 2019 2019 2019

Finalizing of research topic


Information collection
Drafting and submission
Working on literature review
Drafting & submission of lit review
Working on theses literature part
Collection of verdicts and facts.
Thesis submission
Bibliography

Primary Sources
UK statutes
1. Sale of Goods Act 1979
2. Bills of exchange Act 1882
3. Factors Act 1889
4. Law reform (Married Women and Tortsfeasors) Act 1935
5. Cheques Act 1957
6.

Cases
1. Cundy v Lindsay [1878]3 App Cas
2. Jeromy v Bently& Co[1952]2 All ER 114
3. Bishopsgate Motor Finance Corpn Ltd v transport Brakes Ltd [1949]1 KB 322
4. Eastern Distributors Ltd v Goldring [1957] 2 QB 600
5. Henderson & Co v Williams [1895] 1 QB 521
6. Farquharson Bros & Co v King & Co [1902] AC 325
7. Mercantile credit Co Ltd v Hamblin [1965] 2 QB 242
8. Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890
9. Fine Art Society Ltd v Union Bank Of London Ltd [1886] 17 QBD 705
10. Marquess of Bute v Barclays Bank Ltd [1955] 1 QB 202
11. Orbit Mining and Trading Co Ltd v Westminster Bank Ltd [1963]
12. Greenwoods v Martins Bank Ltd.[1933] AC 51
13. Bank of England v Vagliano Bros [1891] AC 107
14. Brown v Westminster Bank Ltd [1964] 2

Secondary Sources
Books
1. LS Sealy and RJA Hooley, Commercial Law Text, Cases and Materials (4th edn, Oxford
University Press Oxford 2009) 349-390
2. PS Atiyah and RJA Hooley, The sale of goods (11th edn, Pearson Longman no date)
3. Ewan Mckendrick and RJA Hooley, Good on Commercial Law (4th edn, Penguin 2010)
4. Gwyneth Pitt and RJA Hooley, Butterworths Commercial Law (William Clowes Ltd,
Beccles and London 1989)
5. Mark Hepgood and RJA Hooley, Pagets Law of Banking (13th edn, LexisNexis
Butterworth Great Briton 2007)
6. J Milnes Holden and RJA Hooley, The Law and Practice of Banking (5th edn, Pitman
Publishing UK 1991)
7. EP Doyle and RJA Hooley, Practice of Banking (2nd edn, Mcdonald& Evans Ltd
London 1972)
8. CB Drover and RWG Busley, Sheldons practice and Law of Banking (10th edn,
Mcdonalds and Evans Ltd London 1972)
Online Journal Articles
1. https://www.lawteacher.net/free-law-essays/commercial-law/the-nemo-dat-quod-non-
habet-rule-commercial-law-essay.php - Acceessed 04.06.2017

2. https://www.lawteacher.net/free-law-essays/property-trusts/sales-by-a-non-owner.php
-05.06.2019

3. www.lawteacher.net/free-law-essays/property-trusts/the-buyer-in-possession-
exception.php - Accessed -06.062019

4. www.studocu.com/en/document/multimedia-university/commercial-law/other/nemo-dat-
rule-this-is-my-own-note-for-the-topic-under-the-doctrine-of-nemo-dat-rule-in-
commercial/2550011/view -Accessed 07.06.2019

5. https://www.studocu.com/en/document/northumbria-university/business-law/other/5-
nemo-dat-rule/1362746/view - Accessed 08.06.2019

6. https://www.studocu.com/en/document/university-of-liverpool/commercial-law/lecture-
notes/nemo-dat-non-quod-habet-exam-notes/1447812/view accessed 09.06.2019

7. https://www.studocu.com/en/document/university-of-liverpool/commercial-law/lecture-
notes/nemo-dat-non-quod-habet-exam-notes/1447812/view Accessed 09.06.219
8. https://www.studocu.com/en/document/the-university-of-warwick/law/lecture-
notes/commercial-law-nemo-dat-rule-transfer-of-title-to-a-non-owner/1360318/view
Accessed 10.06.2019
9. https://www.studocu.com/en/document/liverpool-john-moores-university/commercial-
law/essays/nemo-dat-topic-essay/1609008/view Accsessed 10.06.2019

10. https://www.studocu.com/en/document/university-of-sheffield/sale-of-goods/lecture-
notes/sales-of-goods-agency-and-mercantile-agency-exceptions-to-nemo-
dat/2211193/view Accessed 11.06.2019

11. https://heinonline.org/HOL/LandingPage?
handle=hein.journals/cblrt4&div=12&id=&page=&t=1560185554 Accessed 12.06.2019