The properties of the law: Restoring personal property through crime and tort

S Green

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© Cambridge University Press 2014. If I lose the watch my father gave me, and it is found by another, I stand more chance of getting it back through the criminal law than the civil law. This might seem strange. If the police come into possession of the watch, the normal civil course would be an action in conversion in which the judge has a discretion to restore it to me, but, remarkably, this discretion is rarely exercised. If the thief still has the watch, and a civil claim is brought against him, specific restoration is again both discretionary and uncommon. The criminal law, on the other hand, would normally restore the property to me in both cases. This chapter sets out to determine whether there has been less demand for a right to restoration of personal property in a civil court because a similar result could be reached by other means. In particular, did a civil claim for the return of stolen property atrophy rather than develop further in the last 200 years because such property could be returned by the criminal law, at least in the cases most likely for such a claim to arise? Such cases are where the property is recovered or easily recoverable, identifiable and has a value beyond that which the market ascribes to it, normally for sentimental or other personal reasons. Or was the conceptual pedigree of the common law in this area unable easily to accommodate such a remedy?
Original languageUndefined/Unknown
Title of host publicationUnravelling Tort and Crime
Number of pages33
Publication statusPublished - 1 Jan 2014

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