Voidable title in the sale of goods - One power to rescind, or two?

Sep 17, 2026

Uploaded by Xiajie

This article explores common law rescission in the context of sales of goods, focusing on whether the rescinding claimant holds a proprietary “power in rem” to unwind a voidable contract and revest legal title. It examines the proposition’s claimed features: entitlement to retake possession, binding third-party recipients lacking good-faith purchase, and survival through the recipient’s insolvency. The argument concludes the data does not support the “dual power” account, favoring a personal claim with title revesting by operation of law, and reassessing insolvency treatment of rescission claims.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages27

Reading Time1 h 8 min

AccessFree to download

Introduction

Rescission doctrine and the “dual power” debate

King's Law Journal ISSN: (Print) (Online) Journal [homepage: ](homepage: www.tandfonline.com/journals/rklj20)[www.tandfonline.com/journals/rklj20](homepage: www.tandfonline.com/journals/rklj20) Voidable title in the sale of goods: One power to rescind, or two? Adam Reilly To cite this article: Adam Reilly (2024) Voidable title in the sale of goods: One power to rescind, or two?, King's Law Journal, 35:2, 177-202, DOI: 10.1080/09615768.2024.2416292 To link to this article: [https://doi.org/10.1080/09615768.2024.2416292](https://doi.org/10.1080/09615768.2024.2416292) © 2024 The Author(s) . Published by Informa UK Limited, trading as Taylor & Francis Group | Published online: 16 Oct 2024. | | | --- | --- | | | Submit your article to this journal | | | Article views: 34 | | | View related articles | | View Crossmark data | | Full Terms & Conditions of access and use can be found at [https://www.tandfonline.com/action/journalInformation?journalCode=rklj20](https://www.tandfonline.com/action/journalInformation?journalCode=rklj20) King’s Law Journal, 2024 Vol. 35, No. 2, 177–202, [https://doi.org/10.1080/09615768.2024.2416292](https://doi.org/10.1080/09615768.2024.2416292) Voidable title in the sale of goods: One power to rescind, or two? Adam Reilly* This article explores common law rescission within the sale of goods. It examines the proposition that the rescinding-claimant has a kind of legal, proprietary interest (a ‘power in rem’) to rescind a voidable contract of sale and revest legal title to the goods. This power is considered to be ‘proprietary’ because it binds third-party recipients who cannot plead good faith purchase, and it survives the recipient’s insolvency. The problem is that the data does not fit the theory; in truth, there is every reason to believe that the claimant has only a personal claim to rescind the contract of sale, with legal title revesting by operation of law thereafter. As a result of this analysis, we must: (i) reject the main academic account of this area of law (the ‘dual power’ analysis); and (ii) revisit the treatment of common law claims to rescind in the insolvency context. 1. INTRODUCTION Common Law rescission has come under scrutiny in recent years. The doctrine can be briefly stated: where legal title to chattels is transferred from A to B, but the transferor’s intention is impugned by an unjust factor, such as fraud or duress,1 then A is entitled to rescind the transfer, and revest legal title to the chattels.2 For contractual transfers of title under a sale of goods, this scenario is now codified in s 23 of the Sale of Goods Act 1979. Insofar as the rescinding-claimant, A, must first elect to rescind the transfer,3 * Lecturer in Private Law, University of Glasgow. Email: [adam.reilly@glasgow.ac.uk](adam.reilly@glasgow.ac.uk) 1 W Swadling,‘Rescission, Property and the Common Law’(2005) 121 Northern Ireland Legal Quarterly 123, 127. 2 Car and Universal Finance Ltd v Caldwell [1965] 1 QB 525 (CA) 554; M Bridge and others, The Law of Personal Property (Sweet & Maxwell: Thomson Reuters, 3rd edn 2021) [31-037] . 3 IGE USA Investments Ltd (formerly IGE USA Investments) v Revenue and Customs Commissioners [2021] EWCA Civ 534, [2021] Ch 423 [20] . © 2024 The Author(s) . Published by Informa UK Limited, trading as Taylor & Francis Group This is an Open Access article distributed under the terms of the Creative Commons Attribution License ([http://creativecommons.org/licenses/by/4.0/](http://creativecommons.org/licenses/by/4.0/)), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. The terms on which this article has been published allow the posting of the Accepted Manuscript in a repository by the author(s) or with their consent. 178 Voidable title in the sale of goods the claim to rescind has been characterised as a Hohfeldian power.4 The question is whether or not it is a pow

FAQs

What is the central question about voidable title in the sale of goods?

The article asks whether the claimant’s entitlement to rescind is best explained as a proprietary “power in rem” that revests legal title, or instead as a personal claim that only effects title revesting by operation of law.

Why does the article discuss a “dual power” analysis?

It reviews the view that rescission operates on both contractual and proprietary levels—giving a power in personam to cancel and a power in rem to revest title—before challenging that framework.

What does the article argue the claimant’s actual legal position should be?

The analysis rejects the main academic “dual power” account, concluding the claimant has only a personal claim to rescind the contract, with legal title revesting automatically by operation of law.

Sep 17, 2026

Uploaded by Xiajie