Talk:Nemo dat quod non habet

Page contents not supported in other languages.
From Wikipedia, the free encyclopedia
WikiProject iconLaw Start‑class Low‑importance
WikiProject iconThis article is within the scope of WikiProject Law, an attempt at providing a comprehensive, standardised, pan-jurisdictional and up-to-date resource for the legal field and the subjects encompassed by it.
StartThis article has been rated as Start-class on Wikipedia's content assessment scale.
 Low This article has been rated as Low-importance on the project's importance scale.
WikiProject iconLatin Start‑class Low‑importance
WikiProject iconThis article is within the scope of WikiProject Latin, a collaborative effort to improve the coverage of Latin on Wikipedia. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks.
StartThis article has been rated as Start-class on Wikipedia's content assessment scale.
 Low This article has been rated as Low-importance on the importance scale.

Just stumbled over this article in the new articles section. Not quite sure about it: the original grammar and wording was quite suspicious and the latin translation was incorrect. Can anyone with law knowledge have a look at it and see if this really deserves a separate article? --Phils 17:04, 22 Oct 2004 (UTC)

This article is OK. However, it does not mean I like this doctrine. I hate it. Many country in the world do not admit it (at least to the buyer in good faith who purchased the good in a market opened to the public). Here are some cases to study. Sorry, I don't have time to do it right now. This doctrine is totally garbage. So far as I know, Romans had little idea about statute of limitations. -- Toytoy 14:56, Oct 26, 2004 (UTC)
The orginal translation "can't give better title than one already have" is also OK. -- Toytoy 14:56, Oct 26, 2004 (UTC)


Hawkland UCC Series § 2-312:1 Hawkland Uniform Commercial Code Series William D. Hawkland [FNa] Current through the October 2002

At early common law, credit and clouds on title to chattels due to crime presented risks that were largely thrust upon the buyer, implemented by two Latin maxims, nemo dat quod non habet and caveat emptor. Thus, if goods were stolen from the "true owner," sold to a dealer, and then resold in the marketplace to a bona fide purchaser, the true owner could recover them by merely reciting the maxim that no one can give a greater interest than he, himself, has.

5 La. Civ. L. Treatise, Law Of Obligations § 3.26 (2d ed.)

§ 3.26 Transfer of Rights Greater Than the Transferor's
In the same earlier article the assertion was made that the law establishes the rule that no one can transfer a greater right than he himself has. FN1 That language has not been reproduced. That no one can transfer a right greater than the one that he has is a general principle, one of the logical tools of the law, that is expressed in the centuries-old maxim nemo dat quod non habet. FN2 As logical tools, general principles prevail even if not expressly formulated in the legislation. On the other hand, the same prior article contemplated as an exception that certain transferees may acquire rights greater than their transferors had where, because of the neglect of some formality required by law, the transferee has suffered a loss. FN3 That is an allusion to the laws of registry and the public records doctrine, the consequences of which are so relevant in the world of modern legal transactions that the exceptions that they create to the above principle are now more important than the rule itself, although still the best justification for it. FN4 For those reasons, the function of ultima ratio is better performed by the principle nemo dat quod non habet when that principle is kept sufficiently general by not being expressly formulated in the legislation. That omission does not effect a change in the law.

22 Williston on Contracts § 59:11 (4th ed.)

As has been seen, generally the holder of a negotiable bill of lading has title to the goods and to the document, and the direct obligation of the issuer of the bill to deliver the goods in accordance with the terms of the bill of lading. If, however, the goods were stolen from their true owner before they were delivered to the carrier, the thief would, under principles of the law of personal property, have void title to the goods; and under the general principle embodied in the expression nemo dat quod non habet, that one cannot give what one does not have, the thief would only be able to pass void title to the goods, and the true owner could recover the goods not only from the thief, but also from one who takes from the thief, even if that one is a good faith purchaser for value. [FN46] Thus it is that if the thief, instead of selling the goods directly, delivers them to a carrier and obtains from the carrier a negotiable bill of lading which is then transferred to a holder for value, the holder obtains no right to the goods against the true owner, and the carrier may be required to deliver the goods represented by the bill to the true owner.

Cases of the U.S.[edit]

State v. Mermis, 105 Wash.App. 738, 20 P.3d 1044, 44 UCC Rep.Serv.2d 446, Wash.App. Div. 1, Apr 09, 2001

The difference between theft and breach of contract or failure to pay a debt is criminal intent. [FN25] Mermis seeks shelter in the rules that apply to buyers and sellers of goods. But a thief is not a buyer, and Mermis' argument glosses over key aspects of both the UCC and the criminal law. Generally, a thief takes no title whatsoever to stolen goods. [FN26] When a thief takes "delivery" of goods by deception, he acquires at best voidable title. [FN27] Such a thief may pass good title to a good faith purchaser under the voidable title doctrine, but the thief has no title superior to that of the true owner.
[FN27] Voidable title is distinct from "valid title," which can be passed freely, and "void title," which cannot be passed to any buyer (regardless of good faith status) because of the nemo dat quod non habet ("he who hath not cannot give") rule. See Menachem Mautner, "The Eternal Triangles of the Law": Toward a Theory of Priorities in Conflicts

Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge Number 188 v. Board of County Com'rs of Tulsa County, 995 P.2d 1124, 2000 OK 2, Okla., Jan 14, 2000

¶ 18 Aside from the mischief of injecting disuniformity with grave constitutional implications, a contractual elimination of the sheriff's control utterly lacks any supportive statutory warrant. [FN28] When privatizing was *1138 accomplished neither the Board of County Commissioners in Tulsa County nor TCCJA was vested with power to control the jail or the authority to oust the sheriff and transfer his control to the private contractor. [FN29] As one of the common law's ancient guiding beacons eloquently teaches, nemo dat quod non habet--one cannot give that which one does not have, i.e., no one can give a better title to a thing than one possesses.

Nofziger Communications, Inc. v. Birks, 774 F.Supp. 662, D.D.C., Oct 07, 1991

Defendant Wynmark Trust urges that it is not liable because the Options were not exercised by it. As recounted above, Griffin, in letters of August 30 and September 22, 1988 in which the Options were exercised, stated that he was doing so in his capacity as an officer of Wynmark Development. [FN4] If this alone were the only relevant fact, defendant would prevail. This is because at the time the Options were exercised, Wynmark Development no longer had the authority to exercise the Options for itself having previously on April 29, 1987 assigned "all of its right, title and interest" to Griffin, Naing, and the Wynmark Trust. This assignment extinguished any right to performance that Wynmark Development had briefly held. See Restatement (Second) of Contracts § 317(1) (1981). Wynmark Trust, therefore, could not be liable to NCI for reimbursement because no assignee had exercised its option, *665 and thus no duties of the assignees arose.
FN4. These letters were also written on Wynmark Development stationery and completely ignored the fact that Wynmark Development had on April 29, 1987 assigned its rights under the Options. Nemo dat quod non habet.

Snethen v. Oklahoma State Union of Farmers Educational and Co-op. Union of America, 664 P.2d 377, 38 A.L.R.4th 531, 1983 OK 17, Okla., Feb 15, 1983

It is a general rule of law that no one can confer or transfer a better title than that which he has, unless some principle of estoppel should operate to bar an otherwise superior claim. [FN18] Neither can a person be divested of his property without his consent. While a good-faith purchaser under a defective title cannot hold against the true owner, [FN19] he does have lawful possession against all the rest of the world. [FN20] He is said to have a "qualified possessory right" in the property. [FN21]
FN18. Al's Auto Sales v. Moskowitz, Okl., 203 Okl. 611, 224 P.2d 588, 591 [1950]. At common law this principle is known under the Latin maxim nemo dat quod non habet or just nemo dat. Milsom, Historical Foundations of the Common Law 331 [Butterworths 1969].

Brandes v. Pettibone Corp., 79 Misc.2d 651, 360 N.Y.S.2d 814, 16 UCC Rep.Serv. 205, N.Y.Sup., Nov 12, 1974

I realize that I am not dealing with a motion by Pettibone for summary judgment but feel it necessary to see what its position is in regard to Spancrete and the crane in order to determine what it had to assign to General Electric because, as is said, nemo dat quod non habet--no one can give that which he has not. Since all Pettibone had was a security interest, that is all it could assign to General Electric. Under Section 9--317 UCC, then, General Electric cannot be held liable in contract or tort for Pettibone's acts or omissions or for Spancrete's if there be any such.

M. DeMatteo Const. Co. v. U.S., 310 F.Supp. 1313, 25 A.F.T.R.2d 70-1316, 70-1 USTC P 9357, D.Mass., Mar 23, 1970

In Nee, and again in Goelet, it was held that a person who takes the interest of the testator, who was a fee-owner of a piece of property subject to a ground rent lease, gets from the testator no depreciable interest in the building erected by the lessee during the lifetime of the lease. Reduced to its simplest terms, the ruling of both these cases is an application of the philosophic maxim, 'nemo dat quod non habet,' i.e., the court in both cases ruled that because the testator had no depreciable interest in a building subject to a long term lease until after the termination of the lease, his devisees could not, by reason of his death, acquire something that he himself never had in his lifetime, namely, a depreciable interest in the building subject to the lease.

Rood v. Miami Air Conditioning Co., 193 So.2d 216, Fla.App. 3 Dist., Nov 29, 1966

'In the case of Jackson Sharpe (Sharp) Co. v. Holland (14 Fla. 384) supra, Holland was the purchaser, at a judicial sale, of property in possession of the purchaser, in which the seller had reserved title. Holland insisted that he had no notice, either actual or constructive, of such an agreement. The court decided that under these circumstances, Holland acquired no title to the property as against the plaintiff. This decision,--though, as we have said, there is much conflict in the authorities,--is sustained by numerous and well-considered decisions in many states, and seems to us to be sound on principle. The property not having vested in the Ashmeads, though delivered to them, they could not sell what they did not own, nemo dat quod non habet. In this case, if we were to hold that a bona fide purchaser from a purchaser in possession from a seller who reserved title until payment of purchase money, took a good title, it would not benefit the defendant in this case. He is in no sense a bona fide purchaser. He can have no greater rights in the property than the Ashmeads, whose assignee he is. They could not dispose of the property in payment of their debts.' (1 So. 64)

Jordan v. Kancel, 188 Kan. 292, 361 P.2d 894, Kan., May 13, 1961

It was stated in Mitchell v. Hawley, 83 U.S. 544, 550, 21 L.Ed. 322, 324, that no one in general can sell personal property and convey a valid title to it unless he is the owner or lawfully represents the owner. Nemo dat quod non habet. Persons, therefore, who buy goods from one not the owner and who does not lawfully represent the owner, however innocent they may be, obtain no property whatever in the goods, as no one can convey in such a case any better title than he owns, unless the sale is made in market overt, or under circumstances which show that the seller lawfully represented the owner. See also 46 Am.Jur., Sales, § 458, p. 621; 77 C.J.S. Sales § 295, pp. 1104, 1105; 2 Williston on Sales (Rev.Ed.), § 311, p. 241; Brown on Personal Property (2d Ed.), § 71, pp. 241, 242.

Use in the Catholic Church[edit]

Oftentimes Catholic seminarians are mistaken for priests and asked to bless objects. If he is unable to convince his interlocutor that he is not able to bless things, there has been a longstanding practice among some seminarians to recite "Nemo dat quod non habet, in nomine Patris et Filii et Spiritus Sancti" over the item, to the great rapture of well-meaning pious persons and the great amusement of those who speak Latin. I don't know if it's worth incorporating into the article, but it may be worth mentioning if it can be properly sourced. PeterMottola (talk) 12:49, 25 September 2008 (UTC)Reply[reply]

This phrase is also used within a non-law context having seen it applied to the electron distribution in the outermost shell of the atomic model- If the outer shell has 8 electrons, applies to this phrase- "How can he give who does not have"- in that these elements are part of the Noble elements group and are un-reactive and do not become involved in molecule formation easily. I would extend the argument also to those who give compliments when they themselves do not have the "authority" to do so.

Sources for expanding this article[edit]

I came across an article with some good information in it: Rethinking the Laws of Good Faith Purchase. It mentions the history of the "open market" rule, how it was not received into American law and its abolition in English law in 1994.

Also see [1] and [2] for more information on the "good faith" rule. Count Truthstein (talk) 14:50, 3 January 2014 (UTC)Reply[reply]