Replevin, also known as a claim and delivery, is a legal recourse that allows a person to obtain any personal property that was wrongfully claimed. The remedy is given before the court pronounces the final judgment and the wronged party is also compensated for any losses incurred due to the illegal act.
A Little More on What is Replevin
Replevin actions are quite common and fall into two categories. These include;
- A person seeks immediate possession of the property
- The party filing the claim decides to wait for the adjudication of final rights.
In the former scenario, the law requires the creditor to post a bond, which seeks to protect the defendant from wrongful detention. This remedy is a very useful and powerful weapon against the person holding the property unlawfully since the holder cannot use the property while the case is still ongoing. This pressures the person in possession of the property to settle the issue quickly.
The Replevy- which is the process through which the owner takes to secure the possession of the property by offering a form of security. This security is mainly given by the person prosecuting the action and helps to ensure that the goods will be returned in the event that they lose the case.
The suit of replevin- In common law, the action taken to recover property that has been wrongfully seized would be a case for the wrongful interference of property but this does not offer an immediate recovery of the seized goods.
Replevin is useful when the person claiming a greater right to the property is unable to take the property back by themselves. If a person can do so without filing a suit, this is referrred to as repossession of property. In Wisconsin and Louisiana, for example, if a person finances a vehicle and fails to make payments as agreed. The law does not allow the lienholder to repossess the car but they must appear in court to get a replevin order.
Many people will file a replevin case but choose not to gain immediate possession of the wrongfully-held property. Instead, they choose to file the replevin suit without offering any form of security. The defendant will then be required to attend court proceedings once the service of process is achieved so that the court can adjudicate which party has rights to possession of the property. How does the court determine the rightful owner of the property? The plaintiff creditor will be required to offer business records and testimonies that prove the defendants obligation to pay and their subsequent inability to pay. Once satisfied, the court issues a writ of replevin served to the sheriff’s deputy who work hand-in-hand with employees of the creditor to repossess the property in question. The role of the law enforcement officers is to ensure that the creditor’s property is transferred in peace and that the borrower does not present any threat to the creditor. Once the property is repossessed, the creditor can dispose the property and use the proceeds to finance the debt owed.
In other instances, a replevy can prove useful to avoid any damages that can occur when something like a public utility meter is used continuously. For non-payment of public utilities such as a meter, the physical property will still sit on your premises so that it can be reconnected once you complete payment. The connection can also be activated if the person owing the bill sells the premises to another individual who does not have any bills to the creditor. In the event that a person reconnects the utility unlawfully and continues getting the services, one can seek replevin for repossessing the meter to prevent this action.
Replevin in the International Context
In McGregor v. McGregor (1899), the British Columbia Supreme Court judge Irving J wrote:
An action of replevin can be brought where goods have been wrongfully distrained or where goods have been otherwise, i.e. otherwise than by distress, wrongfully taken or detained. The word ‘wrongfully’ is applicable to both cases. ‘Wrongfully’ … imports the infringement of some right, and any invasion of the civil rights of another is in itself a legal wrong, and the appropriate action for the violation of the legal right unconnected with contract is an action for tort. The early history of replevin action in England is traced (as) … “The nature of the complaint in the action was for a tortious taking of the goods.” Our British Columbia replevin action, which is wider than the English, gives the right to replevy to the party who could maintain trespass or trover. It is given, as it were, supplementary to, or in aid of, the remedy which those actions afford; but as all three actions, trespass, trover and replevin are classed … as actions of tort, I think the action under our British Columbia statute is for the tortious taking or tortious detention of goods.
Similar provisions that show replevin when an individual defaults can be found in the Civil Code of Quebec[ and St Lucia (arts. 1888 et seq.) that were mainly deduced from French law. Other places where such laws are in force include Mauritius and can also be found in the Spanish Civil Code (art 1922).
References for Replevin
Academic Research on Replevin
• Legal Change in the Later Thirteenth Century: Statutory and Judicial Remodelling of the Action of Replevin, Brand, P. A. (1987). Am. J. Legal Hist., 31, 43. The reign of Edward I brought about major changes in the legal realm. Although there was significant change during this period, only one contemporray scholar attempted to look at some of the changes that occued during this time. This paper reviews some of the major legal changes during this era while relying on internal evidence fron written materials and plea rolls that were written at the time. It also highlights how the yearbook reports and manuscript shows the changes made on the action of replevin.
• Need for Civil-Law Nations to Adopt Discovery Rules in Art Replevin Actions: A Comparative Study, Grover, S. F. (1991). Tex. L. Rev., 70, 1431. This article explores the issue of replevin actions that arise when the title to a property is changed under dubious circumstances. While the common law espouses that title to a property can only be changed by the rightful owner, this concept has been disputed by scholars even during the days of the Hammurabi code. The paper proposes that civil-law countries should allow parties to participate in pre-trial discovery to help ascertain ownership of property in case of a replevin suit. It compares the use of replevin in common law and civil law counrties in suits that involve art.
• Fuentes v Shevin: The New York Creditor and Replevin, Gardner, W. H. (1972). Buff. L. Rev., 22, 17. In this case, the court threw out two federal court decisions with regards to laws in Florida and Pensylvannia. The three-judge led court decisions asserted the constitutionality of laws that allowed creditors to repossess propert through a writ of replevin without any hearing or even a court notice. Replevin, which is derived from common law, allows a creditor or a person with the right title to a property to repossess any merchandise that was taken wrongfully.
• Plea of Property in a Stranger in Replevin, Finkelstein, M. (1923). Colum. L. Rev., 23, 652. The writ of replevin, which was created to improve the legal deficiencies associated with trespass has evolved over time. One thing that it was meant to achieve was the recovery of property that was wrongfully acquired. It is, however, worth noting that a distress was not considered wrongful if the two parties owed each other damage for property, rent arrears or even feudal matters. This paper explores the use of the writ of replevin in a stranger and how the courts worked around such issues.
• Rescission for Fraud in Sale or Purchase of Goods–Quasi Contractual Remedies As Related to Trover and Replevin, Glenn, G. (1935). Va. L. Rev., 22, 859. The law with regards to sale of goods is quite comprehensive with the uniform commerical code and the morder treatise. However, in the event of fraud during the sale or purchase of a good, a couple of issues arise. For example, the remedies of the parties to the sale is not well-known while the thoughts on the subject are also not entirely useless. This paper explores the proposition relating to a sellers rights to to rescing when they found out that the property was induced by fraud. The norm is to refer to trover but the parties can also use quasi contrctual actions that is also available to the buyer.
• Equitable Replevin, Van Hecke, M. T. (1954). NCL Rev., 33, 57. The use of detinue and replevin are effective in recovering lost property when the accused person does not present any resistance or when they raise an issue with regards to their right to possession. Using these remediees becomes complicated when the sherrif assigned to the case is unable to locate the property or if the defendant conceals it. In such a case, the action to take would be to sue for an amount that is similar to the value of the property. Equity is a better remedy If a person needs the specific property or if they fear the defendant will frustrate the sherrif’s efforts. This paper explores some of the provisions of the law under the equitable remedies that people have with regards to replevin.
• Consumer Arbitration as an Alternative to Judicial Preseizure Replevin Proceedings, Resnick, A. N. (1974). Wm. and Mary L. Rev., 16, 269. One of the major implications of the Fuentes v. Shevin that disallowed the ise of replevin of property without prior notice was that consumer advocates posited that it would increase costs and inefficiencies for creditors. This expansion for due process ended when the court in Mitchell v. W.T. Grant Co allowed the seizure of property on an ex parte application by a creditor. This decision was seen to be a subjectve notion of fairness and justice but it was important to understand the economic effects of legislations. This paper explores some of the policies that were set to ensure that the law was both fair and just. These included mandatory arbitration, which offers an economical opportunity for both parties to be heard.
• Replevin and export control of archival materials: legislative provisions in ESARBICA, Kukubo, R. J. (1990). ESARBICA journal, 12, 3-27. This article explores the legal principle of replevin while using it to explain how it can help in controlling archival materials.
• Procedure: Contempt as Sanction to Enforce Delivery in Replevin, Nordberg, J. A. (1950). Michigan Law Review, 48(3), 377-380. This article scoures through some of the cases in which the plaintiff or the defendant did not ish to part with a proprty in question even after receiving a writ of replevin. For example, it reveals the case of Burton v. Wayne where the plaintiff used a defective writ and was ordered to return the propertyto the defendant. The plaintiff declined and was found to be in contempt of court. Contempt is used as an enforcement mechanism to ensure that the parties to a suit comply with a writ of replevin. The suitability of this action is assessed in the article.
• Summary Repossession, Replevin, and Foreclosure of Security Interests, Murray, T. V. (1977). J. Kan. B. Ass’n, 46, 93. The repossession of property from a person who wrongfully took it has become a complex legal matter over the past few years. There are new pitfalls that both creditors and lawyers have been confronted with that didn’t exist ten years back. These issues include giving a notice, hearings, right to default and other due processes. This article offers some advice for counsels that find themselves in these types of situations. It reviews tboth the changes that take place in the legislative and judicial arena with regards to summary possession, foreclosure of security interests and replevin.
• Constitutional Law: Creditor Use of Pre-Judgment Replevin Statutes, Reynolds, G. A. (1972). Loy. L. Rev., 19, 530. This paper highlights some of the constitutional provisions that states have enacted with regards to the use of replevin. In Florida and Pensylvannia, for example, a citizen is only required to get a writ of replevin by filoing an ex parte application and posting a bond that consumerates with the value of the property.