Detinue

So the Indian statutory scheme reaches the same result as detinue did, and reaches it more easily: the plaintiff can ask for the thing itself, and not merely for its value, and the presumption is on his side.

Detinue against conversion

The two overlap and a refusal to return goods on demand is usually both. The differences are these.

Where the goods are unique, an heirloom, a manuscript, a particular painting, the plaintiff wants the thing and not the money, and that is when this tort and section 8 of the Specific Relief Act 1963 are worth pleading.

A worked example

Prakash lends his grandfather's silver watch to Rani for a week. The week ends.

One. He asks for it back and she says she will return it next month. That is a refusal only if it amounts to one; a short and reasonable postponement is not. If she simply keeps it and stops answering, the demand and refusal are made out and the detention is wrongful.

Two. He sues. In India he frames the suit under section 7 of the Specific Relief Act 1963 for recovery of the specific movable property, and relies on section 8 to ask that she be compelled to deliver the watch itself, on the ground that it is a family heirloom so that compensation in money would not afford adequate relief and the actual damage would be extremely difficult to ascertain.

Three. Suppose instead she has sold it to a jeweller. Detinue no longer lies against her, because she does not have the watch. Her wrong is conversion, and she must pay its full value. The jeweller, who dealt with it as owner, has also converted it, and Prakash may sue him for the value or seek the watch from him under section 8.

Four. Limitation. Article 91 of the Schedule to the Limitation Act 1963 gives three years, running in the case of goods acquired by conversion from the time Prakash first learns in whose possession the watch is.

What it does NOT mean

It does not lie without a demand. That is what separates it from trespass and from conversion.

It does not lie against a person who no longer has the goods. That claim is in conversion.

It does not guarantee the return of the thing. A court may order the value instead, and in India section 8 of the Specific Relief Act 1963 sets out when specific delivery may be compelled.

It is not defeated by the defendant's good faith. A person who honestly believes the goods are his still detains them wrongfully once the plaintiff's right is established.

Quick revision

1. Detinue: wrongful detention of goods after a demand by the person entitled to immediate possession.
2. Three essentials: the right to immediate possession, a demand, and a refusal.
3. The defendant must still have the goods.
4. In India the statutory form is sections 7 and 8 of the Specific Relief Act 1963.
5. Section 8 allows specific delivery in four cases: agent or trustee, money not adequate relief, damage extremely difficult to ascertain, and possession wrongfully transferred. Its Explanation presumes the second and third in the plaintiff's favour until the contrary is proved.
6. Detinue aims at the thing; conversion pays for it.
7. Limitation: article 91 of the Schedule to the Limitation Act 1963, three years.

Test yourself

1. What is detinue and what must be proved? Detinue is the wrongful detention of a chattel by the person in possession of it against the person entitled to its immediate possession. The plaintiff must prove three things: that he had the right to immediate possession, so that an owner who has hired the goods out for a term cannot sue during the term; that he made a demand for their return, in any form; and that the defendant refused to deliver them, whether expressly or by conduct, a request for a reasonable time to verify the claimant's title not amounting to a refusal. The defendant must still be in possession, since a person who has parted with the goods is answerable in conversion instead.

2. How is detinue given effect in Indian law? Through sections 7 and 8 of the Specific Relief Act 1963. Section 7 allows a person entitled to the possession of specific movable property to recover it in the manner provided by the Code of Civil Procedure 1908, and its Explanations make clear that a trustee may sue and that a special or temporary right to present possession suffices. Section 8 deals with a defendant who has possession or control of movable property of which he is not the owner, and allows him to be compelled to deliver it specifically to the person entitled to immediate possession in four cases: where he holds it as the plaintiff's agent or trustee, where compensation in money would not be adequate relief, where it would be extremely difficult to ascertain the actual damage, and where the possession of the thing has been wrongfully transferred from the plaintiff.

3. When is detinue a better claim than conversion? When the plaintiff wants the thing itself rather than its value, and the defendant still has it. Conversion is compensated by damages measured by the full value of the goods at the date of the conversion, which is an adequate remedy for an ordinary commercial article but not for a unique one. Where the chattel is an heirloom, a manuscript, a particular painting or a thing with no market substitute, the plaintiff should demand its return and, on refusal, sue for specific delivery, relying in India on section 8 of the Specific Relief Act 1963, which allows exactly that where money would not afford adequate relief or the damage would be extremely difficult to ascertain.