Transfer of Title by a Non-Owner - Personal Property Securities Act 2009 (Cth) Exceptions to the nemo dat quod non habet Rule

Sep 17, 2026

Uploaded by Franzy

The fundamental personal property rule—no one can transfer a better title than they have—is subject to statutory exceptions that protect innocent buyers deceived by a seller’s apparent physical possession. These exceptions are limited and restrictive under Sale of Goods legislation. Australia’s Personal Property Securities Act 2009 (Cth) applies more broadly to many transactions, including sales by non-owners, providing exceptions to nemo dat for common commercial dealings. The article analyzes effects on Sale of Goods exceptions, arguing the new provisions are so wide that relevance is substantially diminished, while identifying remaining areas of application.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages25

Reading Time1 h 3 min

AccessFree to download

Abstract

Introduction

The Sale of Goods Act and the nemo dat rule

Transactions involving non-owners and buyers in good faith

Impact of the Personal Property Securities Act 2009 on existing exceptions

Continued relevance and where Sale of Goods exceptions may still apply

This may be the author's version of a work that was submitted/accepted for publication in the following source: McGill, Denise (2011) Transfer of title by a non-owner : Personal property securities act 2009 (Cth) exceptions to the nemo dat quod non habet rule. Australian Business Law Review, 39(4), pp. 209-226. This ﬁle was downloaded from: [https://eprints.qut.edu.au/46813/](https://eprints.qut.edu.au/46813/) © Copyright 2011 Thomson Reuters (professional) Australia Limited This work is covered by copyright. Unless the document is being made available under a Creative Commons Licence, you must assume that re-use is limited to personal use and that permission from the copyright owner must be obtained for all other uses. If the document is available under a Creative Commons License (or other speciﬁed license) then refer to the Licence for details of permitted re-use. It is a condition of access that users recognise and abide by the legal requirements associated with these rights. If you believe that this work infringes copyright please provide details by email [to qut.copyright@qut.edu.au](to qut.copyright@qut.edu.au) [Notice](Notice: Please note that this document may not be the Version of Record)[:](Notice: Please note that this document may not be the Version of Record)[ Please note that this document may not be the Version of Record](Notice: Please note that this document may not be the Version of Record)[ ](Notice: Please note that this document may not be the Version of Record)(i. e. published version) of the work. Author manuscript versions (as Submitted for peer review or as Accepted for publication after peer review) can be identiﬁed by an absence of publisher branding and/or typeset appear ance. If there is any doubt, please refer to the published source. [https:// legal.thomsonreuters.com.au/ australian-business-law-review-parts-bound](https:// legal.thomsonreuters.com.au/ australian-business-law-review-parts-bound)productdetail/ 72380 volumes/ Denise McGill (2011) 39 (4) Australian Business Law Review pp 209-226. Formatted: Line spacing: single Transfer of Title by a Non-Owner: Personal Property Securities Act 2009 (Cth) exceptions to the nemo dat quod non habet rule.1 Abstract The fundamental personal property rule – no one can transfer a better title to property than they had – is subject to exceptions in the Sale of Goods legislation, which aim to protect innocent buyers who are deceived by a seller’s apparent physical possession of property. These exceptions cover a limited range of transactions and are restrictive in their operation. Australia now has national legislation-the Personal Property Securities Act 2009 (Cth) -which will apply to many transactions outside the scope of the Sale of Goods Act and which includes rules for sales by non-owners which will provide exceptions to the nemo dat quod non habet rule for many common commercial transactions. This article explores the effect of the Personal Property Securities Act 2009 (Cth) on the Sale of Goods exceptions, explains that the new provisions are so wide that there is little continuing relevance for the Sale of Goods Act exceptions, and indicates where they may still apply. Introduction In some circumstances a person may have possession of goods without having the right to sell them to another. The possessor may have been an owner who transferred property rights in the goods under a mortgage. The possessor may have obtained the goods as a result of having entered into a financing transaction with the owner who has retained ownership of those goods. The possessor and the owner may have entered into a bailment arrangement without there being any financing involved. In any of these circumstances, if the possessor sells those goods to a buyer and the sale is wrongful as against the true owner or creditor, the issue is whether the purchase by the third party buyer “extinguishes” the rights of the true owner or the credito

FAQs

What is the nemo dat quod non habet rule discussed in the article?

It is the personal property principle that no one can transfer a better title to property than they themselves have. The article explains that this rule is modified by exceptions in sale-related legislation.

Why do Sale of Goods exceptions exist?

They aim to protect innocent buyers who are deceived by a seller’s apparent physical possession of goods. The article notes these exceptions cover a limited range of transactions and are restrictive.

How does the Personal Property Securities Act 2009 (Cth) change the relevance of Sale of Goods exceptions?

It applies to many transactions beyond the Sale of Goods Act and includes rules for sales by non-owners that can provide exceptions to nemo dat. The article explains the provisions are so wide that there is little continuing relevance for many Sale of Goods exceptions, while still indicating where they may apply.

Sep 17, 2026

Uploaded by Franzy