Introduction

This paper endeavours to analyse the extent to which the current exceptions to the nemo dat rule
would change the law in Zambia if they were replaced with a simple provision that where the
owner of the goods has left them in the hands of another, and the goods are sold to a bona fide
purchaser for value, that purchaser acquires good title unless bad faith can be shown. It will do
so by first of all giving a conceptual definition of the nemo dat rule and delve into the concept
with the help of authorities then thereafter make a conclusion.
The Doctrine Nemo Dat Quod Non Habeat
Literally, the Latin maxim, nemo dat quod non habet, pursuant to the Sale of Goods Act, 1893,1
means that no one can give what he or she does not have. The purpose of this doctrine is to
protect the interest of the property owners. Clarke and Kohler 2 posit that as a general rule, a
person who buys goods from someone other than the owner of the goods will not acquire a better
title to the goods than the seller had, and it makes no difference if he acted in good faith. The
case of Jerome v Bentley and Co3 encapsulates this doctrine. The facts of the case are that an
owner gave possession of his ring to a stranger on the basis that it be disposed of for a set price.
When the stranger disposed of it outside of the set conditions and fled, a dispute arose between
the original owner and the innocent purchaser as to the title of the ring. The courts held that the
owner retained ownership of the ring despite the innocent buyer exchanging significant monetary
value in exchange for the property.
Clearly, the Jerome v Bentley and Co4 case exemplifies the potential arbitrariness of the nemo
dat doctrine as it is detrimental to the innocent purchaser who bought the ring in good faith and
without notice of the sellers void title. Arguably, the case also places an emphasis on the equally
pertinent rights of an owner seeking to repossess their goods since a non owner cannot convey
ownership to another. Both arguments are plausible, though there is no other eventuality but to
render the doctrine arbitrary in application. To negate the apparent harshness that comes from a
stringent application of the nemo dat rule doctrine, there are provisions for exceptions that reflect
1 Section 21 (1)
2 Clarke, E. and Kohler, P., Property Law: Commentary and Materials, Cambridge University Press,
United Kingdom, 2005.
3 Jerome v Bentley & Co [1951] All ER 114.
4 ibid.

a concern for the bona fide purchaser. These exceptions have been described in the Bishopsgate
Motor Finance Corporation Ltd v Transport Brakes Ltd 5 case by Denning LJ as necessary to
meet the needs of our times. The exceptions have been created to alleviate the injustice endured
by the bona fide purchaser. Some of the most prominent exceptions though, actively contribute to
the law remaining arbitrary and complex in provision.
The principle that Lord Denning was discussing in the above mentioned case is the common law
maxim, which provides that the seller, or an agent acting for the seller, can give no better title to
goods than the seller himself. This rule is given statutory effect in section 21 (1) of the Sale of
Goods Act which provides that where, goods are sold by a person, who is not the owner, the
buyer acquires no better title than the seller had. The rational of this rule is to protect ownership
rights or protecting of property as is mentioned by Lord Denning.
The Rajan Patel v The Attorney General6 case is the opposite of the Bishopsgate7 case, in which
the appellant bought a Mercedes Benz car from a Humphrey Musonda and Patrick Kangwa who
together approached the appellant in his shop. He was shown a Vehicle Registration Book, a
National Registration Card and a Customs Clearance Certificate. The Registration Book showed
that the registered owner of the car was Patrick Kangwa. The Registration Book was issued by
the Government of Zambia. The appellant checked the engine and chassis numbers. They
corresponded with what was in the Registration Book. The agreed purchase price was US
$28,000. The appellant even went to the Police Station at the motor vehicle section for purposes
of verifying the ownership status of the subject car. Thereafter, Musonda and the appellant went
to see the officer in charge where Musonda swore an affidavit on behalf of Patrick Kangwa for
change of ownership. After this, the two went to the Road Traffic Department where they
effected changed of ownership of the car into the joint names of the appellant and his wife. They
then proceeded to the appellants lawyer where a contract of sale for the motor vehicle was made
and signed. Having finished the signing of the contract, the appellant paid Musonda the sum of
US $28,000.
5 Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd [1949] 1 KB 322 337.
6 [2002] ZR 59 SCZ.
7 Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd [1949] 1 KB 322 337.
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It later came to the attention of the police that the vehicle in question had been hijacked from the
owner in the Republic of South Africa and the matter was reported to South African Police who
opened a docket and circulated the information to Interpol. It was held that both in the High
Court and on appeal, citing the case of Rowland v Divall,8 and section 12 (1) of the Sale of
Goods Act, 1893, that the appellants claim must fail. The thief who steals the car could not pass
good title because he had none. It was further held that that sale of the care in this case was not a
sale in market overt. Sakala J.C, proffered a definition of a market overt as an open public and
legally constituted market. It was stated that the sale of a vehicle by people going to the
plaintiffs shop cannot be accepted that it was a sale at the market overt and the appeal was
dismissed.
Where a seller dispose of goods with a void title, but the title had not been voided before the
sale, the law confers a valid title in the goods to the buyer. This is provided for in section 23 of
the Act9 where the seller of goods has voidable title but the title has not been avoided at the time
of the sale, the buyer obtains good title to the goods provided he buys the goods in good faith and
without notice of the defect in title. 10 Section 23 provides protection to third parties only where
the sale was voidable. This is evidenced in the case of Mamujee Brothers Ltd v Awadh11 where
Shah obtained goods from the plaintiff by falsely representing that he was entitled to them. He
then went ahead and sold these goods to the defendant. Subsequently, he was convicted of
obtaining property by false pretences. The question arose as to whether property has re-vested in
the plaintiff or whether title had passed to the defendant. It was held that according to section 23
of the Kenyan Sale of Goods Act, a person cannot pass better title than what he himself
possesses. However, pursuant to section 24, a person who has voidable title can pass good title to
a bona fide purchaser for value who acquires the goods in good faith and without notice of any
impropriety in the sellers title, provided that the sellers title has not yet been voided. On the
facts, Shahs title was voidable because he had obtained it by the plaintiffs mistake. His title was
8 [1923] 2 KB 500.
9 Sales of Goods Act, 1893 of the Laws of Zambia.
10 Malila, M., Commercial Law in Zambia: Cases and Materials, Unza Press, Lusaka, 2006.
11(1969) EALR 520 (High Court of Kenya)
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only voided upon his conviction. It was found that the defendant had noticed of Shahs defective
title, so that he could obtain good title.
Furthermore, in the case of Cundy v Lindsay,12 B ordered linen by post by impersonating a well
known local company. Contract void; therefore, B had no title and accordingly no title could be
passed by him to P. the court held that by the law of the country the purchaser of a chattel takes
the chattel as a general rule subject to what may turn out to be certain infirmities in the title. If it
turns out that the chattel has been found by the person who professed to sell it, the purchaser may
not obtain a good title as against the real owner. If it turns out the chattel has been stolen by the
person who professes to sell it then the purchaser will not obtain title. The same rule applies to a
void contract.
In Hollins v Fowler,13 a Liverpool broker, Hollins, purchased cotton from another broker,
Bayley, who had obtained from Fowler, the owner, without title in circumstances of fraud.
Hollins purchased the cotton in good faith sold and delivered it to a manufacturer. In this
instance Fowler was held liable, when sued for conversion. It should be noted that section 21 (1)
in the latter part of it states that unless the owner of the goods is by his conduct precluded from
denying the sellers authority to sell, then the buyer in that case will have a good title.
A rogue took possession of a motor vehicle under a hire purchase agreement by using a stolen
driving licence as evidence of his name and address in Shogun Finance Ltd v Hudson.14 He then
resold the vehicle to Mr Hudson and bolted. When the finance company found out about the
fraud, they sued Mr Hudson in conversion. The House of Lords held the agreement to be void for
mistake as the finance company clearly intended to deal with the person actually named on the
agreement rather than the rogue. The rogue was not a seller in possession of the motor vehicle
under a hire purchase agreement.
Section 21 (1) (b) of the Sale of Goods Act provides for the sale under special common law or
court order which states that nothing in the Act would affect the validity of any contract under
12 (1878) 3 App Cas 459.
13 (1875) L.R.7 H.L 757.
14 [2003] UKHL 62.
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special common law or statutory power of sale under a court order. The question would be who
may exercise these special powers? These powers may be exercisable by pledges since a pledge
carries with it an implied right to sale. They may also be exercised by agents of necessity and by
executors and administrators. Malila15 proffers that sellers of goods under statutory powers do
pass a good title even if the owners of the goods did not authorise or consent to the sale.
Statutory powers of sale include those conferred on an unpaid seller of goods under the Act. In
terms of section 25 (1) of the Act, where a person who has sold goods remains in possession of
the goods or of the documents of title to the goods, the delivery or transfer by that person of the
goods or documents of tile to a third party who receives the same in good faith and without
notice of the previous sale has the same effect as if the person making the delivery or transfer
had the express authority of the owner in doing what he did.16
Conclusion
The English common law doctrine of nemo dat quod non habeat states that someone who has no
title to goods cannot pass the goods to another. Thus a person cannot give what he does not have.
This doctrine gives provisions that protects both property and commercial transactions. If the
current exceptions of this doctrine were to be replaced with a simple provision that where the
owner of the goods has left them in the hands of another, and the goods are sold to a bona fide
purchaser for value, that purchaser acquires good title unless bad faith can be shown, there would
be a precipitation of fraudulent deals on the market and property owners would have no legal
redress and such a law would only benefit the purchasers of stolen property.

15 Malila, M., Commercial Law in Zambia: Cases and Materials, Unza Press, Lusaka 2006.
16 Malila, M., Commercial Law in Zambia: Cases and Materials, Unza Press, Lusaka 2006.
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Bibliography
Statutes
Sale of Goods Act, 1893 of the Laws of Zambia.

Case Law
Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd [1949] 1 KB 322 337.
Cundy v Lindsay (1878) 3 App Cas 459.
Hollins v Fowler (1875) L.R.7 H.L 757.

Jerome v Bentley and Co [1951] All ER 114.

Rajan Patel v The Attorney General [2002] ZR 59 SCZ.

Books
E. Clarke and P. Kohler, Property Law: Commentary and Materials, Cambridge University
Press, United Kingdom, 2005.
M. Malila, Commercial Law in Zambia: Cases and Materials, Unza Press, Lusaka 2006.