Cardiff University, Law Building, Museum

School of Law
Avenue
and Politics
Cardiff, CF10 3AX, Wales UK
Ysgol y Gyfraith a Tel: +44(0)29 2087 6705
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www.law.cardiff.ac.uk/law-politics

Prifysgol Caerdydd, Adeiliad y

Gyraith, Rhodfa’r Amgueddfa,
Caerdydd, CF10 3AX, Cymru
DU
Ffôn: +44(0)29 2087 6705
Ffacs : +44(0)29 2087 4097
www.law.cardiff.ac.uk/law-
politics
Commercial Law: 2023-24

TUTORIAL FEEDBACK

TUTORIAL FOUR: Transfer of title

Tutorial feedback will not necessarily provide you with ‘model’ answers, but will provide
feedback on how to go about finding the answers to the questions. Tutorial feedback will
also outline what students did well, and where things needed further attention. It identifies
the scope of what we are looking at in the module. The feedback may also include
suggestions for further sources of information where there have been topical
developments, if relevant.

Aims of tutorial

Tutorial Objectives and Instructions

The aim of this tutorial is for students to conduct independent research on the topic of
‘transfer of title’ and to go through the process of writing an essay on the topic. There will
be essay type questions in the exam. It will not be the same questions as in this tutorial
(students can expect similar questions however). Students who prepare for the tutorial
should be better prepared for the exam.
For this tutorial, please write out and bring with you to the tutorial:
1. A detailed outline answer to the essay question below
and
2. A 200 –/300 -word introduction to your essay.

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Learning outcomes
By the end of this tutorial, students should be able to:

 Analyse an essay question in order to identify its scope and requirements

 Prepare to write the essay by engaging in effective research and planning
 Structure an argument and select supporting material
 Identify the skills that are being assessed in the essay and tailor the essay to ensure
that these skills are demonstrated
 Participate in tutorials to present their essay plans and introductions

General comments

The level of preparation varied across tutorial groups. Most students demonstrated they
were able to structure their answer in a logical manner, which is very good. However, we
note that some students also found it difficult to deal with and structure an essay question
(particularly the introduction). There were also difficulties relating to the critical discussion
of relevant statutory provisions and the law reforms. We have therefore drafted some
detailed guidance below on how to answer the essay question.

Essay on Nemo Dat/ Transfer of title

“In the development of our law, two principles have striven for mastery. The first is for the
protection of property: no one can give a better title than he himself possesses. The second
is for the protection of commercial transactions: the person who takes in good faith and for
value without notice should get a good title. The first principle has held sway for a long time,
but it has been modified by the common law itself and by statute so as to meet the needs of
our own times.”
per Lord Denning in Bishopsgate Motor Finance Corporation v Transport Brakes Ltd [1949] 1
KB 332, 336-37.
Evaluate the extent to which these “two principles” are reflected in Sections 21 – 25 of the
Sale of Goods Act 1979, as amended. In your view is the law on the transfer of title
satisfactory or is it in need of reform?”

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Comments on writing introductions
There are many different ways to approach introductions but you should try to do the
following as a minimum:

 Set out the context of the essay.

 Connect the essay to the question asked. You could refer directly to the quote given
or briefly give your view on the main point of the quote. In this question there are
effectively two questions 1) evaluate the extent to which the two principles are
reflected in ss 21-25 of SGA and 2) whether the law is satisfactory or in need of
reform.

 Outline argument / your view regarding of passing of title, i.e. You should tell the
reader the main point or points of your essay. This might overlap with the point
above. E.g. In respect of the second question: “In this essay it will be shown that the
law on the passing of title by a non-owner is unclear and that reform clearly
protecting the innocent buyer is required.” Here you make your argument and it is
clearly connected to the second question asked.

You should be clear when making your argument. A couple of extra words can make a huge
difference. For example, rather than saying “The law is need of reform” you could say “The
law should be reformed so as to clearly protect the innocent buyer”. The latter sentence is
clearer.

 Give an outline of what the essay contains—this is sometimes called “signposting”.

For example, you might say “The first part of this essay will examine the extent to
which the two principles are reflected in SGA and demonstrate how the balance
between the two principles depends upon which exceptions might apply to a
particular case. The second part of this essay will consider the criticisms that can
and have been made in respect of the law and the proposals that have been made
for reform. In the final part of the essay the conclusion will be drawn that the law
should be reformed and that the best solution is to allow title to pass whenever an
innocent third party buys goods from a seller acting in the course of a business so
long as the owner released possession of the goods with consent.”

 It makes it clear to the reader what the essay is about and what it will contain,
 It ensures that you have an argument or an opinion, and makes it very clear to the
reader what that opinion is.

Further points to consider:

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should I consider all the exceptions or just use some to illustrate my points?
E.g. for the first part of the question you might want to outline the exceptions and say that
they all move the law away from the first principle towards the second but they do so in
different ways. You can then use 1 or 2 of the exceptions to show how they do so.
You might also think about whether they are always about protecting commercial
transactions or can be about protecting an innocent third party’s reliance on appearances
whether or not in a commercial situation (e.g. estoppel or mercantile agent exception).
For e.g. How does the mercantile agent’s exception balances interests? Parliament has
protected the true owner by making it clear that he does not lose his right to goods when
they are taken from him without his consent (e.g. if stolen from his house) but Parliament
has not protected the true owner if he has himself consented to a mercantile agent having
possession of them (because leaving them in the agent’s possession, he has clothed the
agent with apparent authority to sell them and should not be allowed to claim them back
from an innocent purchaser).
REFORMS: When thinking about reform of the law, you should think about different types
of criticism which can link with different reform proposals i.e:
a) criticism levelled at the exceptions as such and their interpretation by the courts e.g.
the problem of the void/voidable distinction or the concept of a notional mercantile
agent.
b) criticism of the law as a whole: incoherent and lacking clear policy objectives,
inconsistent, overly technical and unpredictable.
c) reform efforts directed to both a) and b) leading to a view on whether and how a
clear policy objective can be achieved.

Further comments
Please make sure to use the Discussion Board as fora in which you can raise questions on
the tutorial. Further references: Atiyah ‘s book on Sale of Goods and the Article of A.
Tettenborn (2018) “Transfer of chattels by non-owners: still an open problem” The
Cambridge Law Journal, Volume: 77, Issue: 1, Pages: 151 - 178.