united-states canada theft fraud conversion
Stealing or obtaining ownership by fraud?
<p>Scenario:</p>

<p>John Doe goes to a car dealership and arranges to buy a car.  He pays with a personal check, and the dealership accepts payment and signs over ownership to Mr. Doe.</p>

<p>Mr. Doe goes a few miles to another dealership and uses his authentic paperwork to sell the car for cash.  This new dealership in turn moves the car several hundred miles and resells it.  The car eventually winds up in the possession of Joe Smith, who has paid a local dealership for it..</p>

<p>Unfortunately, that personal check that John Doe wrote bounces.  The dealership contacts the police, who eventually trace the car to Joe Smith.</p>

<p>Can the dealership recover the car from Joe Smith on the basis that it was stolen property and no one else ever had ownership?  Or is their only claim one of fraud against John Doe, since they did sign over the ownership?</p>

<p>I would be most interested in the law in Canada, and major US states...</p>

<p><strong>tl;dr:</strong> No, the dealership generally <em>won't</em> be able to recover the car if its act of parting with the car involved &quot;entrusting&quot; it to someone.  That said, it can pursue Doe for fraud.</p>
<p><strong>U.S. Background</strong></p>
<p>First off, when the dealership gets <em>swindled</em> the situation is distinctly different from one where the car is <em>stolen</em> from the dealership.  If stolen, we'd expect the dealership to be able to recover the car, as in <a href="http://www.leagle.com/decision/198056183NJ478_1531/O%27KEEFFE%20v.%20SNYDER" rel="noreferrer"><em>O'Keeffe v. Snyder</em>, 416 A.2d 862, 83 N.J. 478 (1980)</a>.  If swindled, we'd expect the dealership to be out of luck, as in <a href="https://casetext.com/case/phelps-v-mcquade-1" rel="noreferrer"><em>Phelps v. McQuade</em>, 220 N.Y. 232 (N.Y. 1917)</a>.</p>
<p>Why the different result?  It comes down to the idea that when the car gets moved on to an unsuspecting buyer, either the innocent buyer or the dealership is going to get hurt by the bad act.  This is because only one party (buyer or dealer) is going to get to keep the car, and the other is going to be upset.  The court has to essentially choose who is going to get hurt.</p>
<p>The way it does this is by looking at how the car left the dealer's lot.  In cases of swindling, the dealer at least had some say in the matter: it &quot;entrusted&quot; the car to the swindler by what's called a &quot;voidable&quot; title.  This is enshrined in the UCC:</p>
<blockquote>
<p>§ 2-403. Power to Transfer; Good Faith Purchase of Goods; &quot;Entrusting&quot;.</p>
<p>(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though</p>
<p>(a) the transferor was deceived as to the identity of the purchaser, or</p>
<p>(b) the delivery was in exchange for a check which is later dishonored, or</p>
<p>(c) it was agreed that the transaction was to be a &quot;cash sale&quot;, or</p>
<p>(d) the delivery was procured through fraud punishable as larcenous under the criminal law.</p>
<p>(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyerin ordinary course of business.</p>
<p>(3) &quot;Entrusting&quot; includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goodshave been such as to be larcenous under the criminal law.</p>
</blockquote>
<p>There's an old saying: &quot;title, like a stream, only rises as high as its source.&quot;</p>
<ul>
<li>In the case of a theft, the thief didn't have title in the first place and thus can't transfer it.  So we'd expect the dealer to get the car back (buyer gets hurt)</li>
<li>In your case, the swindler's bogus check falls under UCC §2-403(1)(b).  Thus the swindler gets a voidable title and then has the power to transfer the car to an unsuspecting buyer.  So we'd expect the buyer to keep the car (dealer gets hurt).</li>
</ul>
<p>Note: the title is &quot;voidable&quot; because, if the dealer realizes the check is dishonored, it can void the title.</p>
