There are four nominate intentional torts protecting interests in chattels:180trespass to chattels, detinue, conversion, and the action on the case to protect an owner’s reversionary interest. Each has a discrete, though overlapping, role in the protection of interests in chattels. In practice each tort is commonly associated with a different form of interference with chattels. The typical case of trespass to chattels is that of intentional damage to a chattel in the physical control of the plaintiff. Detinue typically applies where the defendant refuses to return the plaintiff’s chattel to her. Conversion commonly applies where the defendant has taken the plaintiff’s chattel. The action on the case to protect the owner’s reversionary interest applies to permanent damage to the plaintiff’s chattel which occurred when the chattel was in the possession of someone else. These are, however, gross generalizations and the definition of each tort is not restricted to these typical situations. Moreover, a single fact situation may give rise to a number of causes of action. The plaintiff may choose the most advantageous remedy. These nominate torts are supplemented by replevin and the recaption of chattels, which are procedures designed to secure the timely return of chattels that have been wrongly taken or detained by another person.
Trespass to chattels is the oldest of the torts of intentional interference with chattels. It applies where the defendant directly and intentionally
(or negligently181) interferes with a chattel in the possession of the plaintiff. Trespass to chattels protects possession rather than ownership. Indeed, a person in wrongful possession may bring an action in trespass against anyone except an owner with a right to immediate possession. This emphasis on possession reflects the fact that the main priority of the early common law was to minimize violence. The law sought to prevent violent confrontations over the possession of chattels where title lay in the hands of an owner out of possession who was not exercising his ownership rights. The solution was found in protecting the person who had physical control (possession) of the chattel. An owner out of possession such as a bailor of a chattel for a fixed term cannot, therefore, sue in trespass.182Any direct interference with a chattel is actionable, including damage, destruction, taking, or movement of it. In practice, trespass is most commonly used where a chattel has been damaged or where there has been some minor unauthorized use or movement of the chattel. The destruction or taking of chattels is usually remedied by the tort of conversion or the tort of negligence. Knowledge that the interference is wrongful is not required. Mistake is no defence.
It is not clear if trespass to chattels continues to be actionable without proof of damage. One view is that the traditional rule plays a useful role in preventing people from touching valuable art and museum pieces and in providing a remedy for the unauthorized moving or temporary use of chattels. The other view is that unless goods are taken, damage should be an essential element of liability since there is no pressing policy need to protect a dignitary interest in the inviolability of chattels.
The remedy for trespass to chattels is an award of damages. The measure of damages for a damaged chattel is the reduction in its market value or the cost of repairs where that is less. The market value of the chattel is the appropriate measure for the taking or destruction of a chattel.
Canadian courts have not yet dealt with the application of trespass to chattels to online interference with computer systems. A variety of interesting issues will arise including the meaning of property, the novelty of intangible interference, and whether harm should be an
essential element of online trespass. The American courts that have begun to grapple with these issues have agreed that trespass to chattels provides an appropriate framework for analysis. The leading case is Intel Corp. v. Hamidi.183 In that case the defendant was a disgruntled former employee of the plaintiff corporation. He sent mass e-mails that were critical of the plaintiff to thousands of the plaintiff’s employees. The plaintiff sought an injunction to put a stop to this on the grounds that the defendant’s unauthorized use of its server was a trespass to chattels. An injunction was granted both on summary judgment and on appeal but the California Supreme Court reversed these decisions. It held that direct harm to the chattel was an essential element of trespass to chattels in California. In Hamidi, therefore, no tort was committed because there was no evidence that there was any significant impairment in the operation, value, or processing capacity of the plaintiff’s server. The nature and degree of harm sufficient to complete the tort was not fully resolved but the Court did not favour earlier decisions where injunctions had been issued to prevent the use of the plaintiff’s server for sending bulk e-mail184and to prevent the accessing of information that was available to the public from the plaintiff’s website185
on the basis of minimal harm to the plaintiff’s computing system and/ or indirect harm to business interests. The Hamidi decision may be seen, therefore, as one that favours freedom of access and use of online systems and diminishes the protection of the operators of those systems unless there is a substantial degradation in their storage or processing capacity. Hamidi also challenges the wisdom of the view that trespass to chattels is actionable per se. If harm is not needed to maintain online trespass in Canada some form of privilege of reasonable access or implied consent to the use of computer systems will need to be developed.186
An action in detinue is available where a person with a right to the immediate possession of a chattel has requested187its return from a
defendant who has possession of the chattel or who had possession of it but lost it as a result of a wrongful act.188The tort protects the plaintiff’s right to the chattel and focuses on the defendant’s denial of the plaintiff’s rights by refusing to return it. A demand for the chattel by the plaintiff and a refusal by the defendant to return it are normally essential components of the cause of action. The demand alerts the defendant to the plaintiff’s claim to the chattel and provides an opportunity for the defendant to return it to its rightful owner and, thereby, avoid liability. It is probably not necessary to make a demand if it is clear that the defendant is determined to keep the chattel, thereby making a request futile.
Unlike trespass and conversion, detinue may be remedied by an order for the return of the chattel. The most common...