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between persona and res is inherent not just in the word itself, but also in the texts. This exclusivity and power was to become a key idea in Revolutionary France, dedicated to overthrowing feudal property ideas, and thus ownership is defined in the Code civil as the ‘right to enjoy and to dispose of things in the most absolute manner’ (droit de jourir et disposer des choses de la manière la plus absolue) (Art 544). Nevertheless, the exclusivity must never be overemphasised as a matter of history. For neither the Romans nor the French post-Revolutionaries ever accepted such an idea in everyday practice; dominium was always more of a bridge between the legal and the ideological worlds than between the worlds of law and social fact. 2 When one turns to the Waverley case interesting questions arise. Ought ownership (a property concept) to be determined by the status (law of persons) of the finder (that is, status of ‘trespasser’)? Did the council succeed because it was deemed the possessor of the brooch or because it was held to have a better right to possession? What if Mr Fletcher had some months previously lost a ring in the park and had repeatedly returned with a metal detector to search for it until he found it: could the council claim the ring if it had been recovered several inches below the surface? A homeless person in breach of the park bylaws enters the park each night to sleep on a park bench and one night finds a £10 note which he hands in to the local police the next day. If the note is never claimed, who will be entitled to it? 3 In addition to dominium (a legal relationship) the Romans also developed the relationship of possession: the factual relationship between person and thing (Dig 41.2.3). Physical (corpus) and mental (animus) control were vital (Dig 41.2.3.1; 41.2.17.1); and what, practically speaking, distinguished ownership from possession were two quite different sets of remedies. Ownership was protected by the actio in rem, whereas possession was protected by the public law remedy of the interdict. In civil law, possession and ownership were quite different notions (nihil commune habet proprietas cum possessione: Dig 41.2.12.1), but is this true of the common law? 4 Waverley involved a chattel. But what if the dispute involved land? What if a building contractor, who does not have actual possession of the land on which he is erecting a building, is prevented from working by trespassing squatters? Must the contractor, in order to get a repossession order from the courts, show that he had possession of the land or will a ‘sufficient interest’ be enough? (Cf Manchester Airport plc v Dutton [1999] 3 WLR 524.)
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Collins MR: This is an appeal by the defendants in an action in which the plaintiff sued to recover expenses to which he was put by the illness and death of his wife, caused, as he alleged, by typhoid fever of which the infection was caught from milk supplied by the defendants. The jury found that the milk was the cause of the fever, and gave a verdict for the plaintiff, for whom

judgment was entered. The first point taken is whether in point of law, on the facts as ascertained, there can be any liability on the defendants even if it is admitted that the milk was the cause of the fever, and on this it is contended for the defendants that there was no actionable wrong on their part. The point is whether the circumstances under which the milk was bought bring the case within the provisions of s 14, sub-s 1 [see, now, s 14(3) of the 1979 Act] of the Sale of Goods Act 1893… Considering the matter by steps, it appears that there was no specific evidence as to the inception of the relation of buyer and seller, because, as a matter of fact, people do not, when they want a milk supply, enter into an elaborate negotiation with the vendor of the milk. We begin the discussion with the practice followed in the dealing between two parties. The fact of the supply of the article involves a contract. That contract is for the supply of food, for no one would question that the milk was bought as an article of consumption… [M]ilk was supplied for a purpose known to the sellers under circumstances which showed that the buyer relied on the sellers’ skill or knowledge, and that the goods were of a description which it was in the course of the sellers’ business to supply. The point mainly pressed upon us on behalf of the defendants was that the buyer could not be said to rely on the skill or judgment of the sellers in a case in which no amount of skill or judgment would enable them to find out the defect in the milk supplied. That amounts to a contention that a seller of goods cannot be answerable for a latent defect in them unless upon a special contract to that effect. That argument is not employed for the first time, for it was used before the Sale of Goods Act 1893, which consolidated and crystallised the law, which seems to me to be just the same under the statute as it was under the common law. The matter was specifically dealt with in the considered judgment of the Court of Appeal in Randall v Newson, where it was held that on the sale of an article for a specific purpose there is a warranty by the vendor that it is reasonably fit for the purpose, and that there is no exception as to latent undiscoverable defects. That was the case of a defective pole for a carriage, and the view of the court is expressed thus: If the subject matter be an article or commodity to be used for a particular purpose, the thing offered or delivered must answer that description, that is to say, it must be that article or commodity, and reasonably fit for the particular purpose. The governing principle, therefore, is that the thing offered and delivered under a contract of purchase and sale must answer the description of it which is contained in words in the contract, or which would be so contained if the contract were accurately drawn out. And if that be the governing principle, there is no place in it for the suggested limitation.’ The suggested limitation was that the principle applied only to such defects as could be discovered by reasonable care and skill. The judgment continues:

If the article or commodity offered or delivered does not in fact answer the description of it in the contract, it does not do so more or less because the defect in it is patent, or latent, or discoverable.