Chapter 2 - Animals as Property
To many who argue in favour of animal rights, the fact that animals are categorised as “property” represents one of the major stumbling blocks to improving their treatment. An alternative to animal rights is the welfare paradigm that seeks to balance human and animal interests by preventing unnecessary suffering to animals. This is a utilitarian approach that is underscored by the variety of uses that humans have for animals, such as for food, clothing, entertainment, research and companionship. Arguably, this predisposes human interests to take precedence over animal suffering.
This Chapter of the casebook provides examples of how the law regards animals as “property”. The consequences of this paradigm are further explored in subsequent Chapters that deal with legal disputes from the areas of family law, contracts and torts.
Prepared by Paul Khodor
Court
Supreme Court of Mississippi
Facts
Several hogs trespassed onto the property of Stephens, the appellant. Stephens attempted to remove the hogs, but was unsuccessful. As a result he shot and killed four of the hogs, two of whom were the property of his neighbour. Stephens was charged with a breach of the Miss. Code Chapter 77 s 2918 (Rev. ed. 1880) (‘the Code’) which provided: “Any one who shall cruelly beat, abuse, starve, torture or purposely injure any horse, ox, or other animal, belonging to himself or another, shall be punished...”
Issues
- Whether Stephens, by shooting the trespassing hogs, breached s 2918 of the Code
Decision and Reasons for the Decision
At the original trial Stephens was found guilty. He appealed and on appeal the conviction was quashed and the decision of the trial judge overturned. The Supreme Court of Mississippi held that the key to determining guilt under the relevant section was to inquire into the motive of the action. Accordingly, the accused could not be convicted unless he had acted with a spirit of cruelty, or to inflict unnecessary pain or suffering on the animals. The presiding judge, Justice Arnold, outlined that the statute was intended to protect animals from cruelty.It was found that the legal test for determining whether the action was criminal hinged on the defendant’s “motive” which must have been “actuated by a spirit of cruelty”. His Honour found that as Stephens’ motive for the shooting was the protection of his crops, he had not violated the statute.
Justice Arnold also noted that the property status of the hogs was not relevant for the purpose of indictment under the Code (a criminal offence). Thus, liability, if any, for trespass arising out of the killing of the hogs could only be pursued by their owner in a civil suit, where ownership of the hogs, and their status as property would have been critical to the success of a suit.
Justice Arnold also discussed the value of laws which seek protection of “dumb brutes”. By observing that the “common law recognised no rights in animals and punished no cruelty to them, except in so far as it affected the rights of individuals to such property” he expressed a deep admiration for statutes that remedy this defect “in the spirit of… Divine law”. He continued by suggesting that the dominion of man over animals creates “moral trust”, vesting humans with the responsibility to treat vulnerable animals justly.
Significance of the Case
The case demonstrates how the law frequently recognises animal interests only insofar as they are consistent with human interests. The Court indicated that it was gratuitous cruelty, committed without reason and with vicious intent that would be unlawful; this being conduct commonly destructive to human morality and animal welfare. However, as Stephens had inflicted cruelty upon the animals to protect his property, a conflict arose between human economic interests and animal interests, with human interests prevailing. Despite Justice Arnold’s discussion of the obligation upon humans to prevent harm to animals, the law’s subordination of animal interests to economic concerns dilutes the ability of anti-cruelty law to deliver this protection.
2.2 Elder Smith Goldsbrough Mort Ltd v McBride [1976] 2 NSWLR 631
Prepared by Ashleigh Best
Court
Supreme Court of New South Wales
Facts
The vendors reared cattle studs, selling them both privately and at auction. At the 1970 Royal Easter Show, they displayed a bull named Midgeon Supreme. Elder Smith the plaintiff and auctioneer employed by the vendors, informed McBride, the ultimate purchaser and defendant, that he believed Midgeon Supreme to be the best bull at the show. On the 24 March 1970, McBride purchased Midgeon Supreme for $21,000. The contract for sale included an exclusion clause: it stated that the bulls, having been made available for inspection, would be purchased with all faults, and the vendors would not be liable in this respect.
The circumstances surrounding the purchase made it clear that Elder Smith and the vendors intended to sell a stud bull, that the bull would be used for breeding and that McBride purchased the bull with the intention of using it for breeding. On 15 April 1970, the bull serviced three cows, but failed to impregnate any of them. The following month, a veterinary surgeon assessed the bull’s semen, discovering that it was of poor quality. Another veterinary surgeon was consulted and noted that the bull had suffered severe testicular degeneration since April or May 1970 and that it was likely to be permanently sterile.
The catalogue contained an exclusion clause that stated that as the bulls had been made available for inspection, they were to be purchased with any defects. The exclusion clause operated to prevent the vendors from being liable for any faults in the bulls they sold which had been inspected by purchasers.
Elder Smith brought an action against McBride to recover the amount to which he was entitled from the sale of the bull. McBride then brought third party proceedings against the vendors, seeking indemnity in the form of compensation for any losses to be incurred from Elder Smith’s claim.
Issues
- Whether Elder Smith was entitled to claim the purchase price of the bull in accordance with the contract. This was to be decided in light of McBride ’s arguments that: McBride did not receive the value in the bull provided for in the contract; Elder Smith was negligent in advising McBride that the bull was suitable for the purposes of reproduction; and that the unsuitability of the bull for such purposes amounted to a breach of contract
- Whether the sale of an infertile bull to McBride amounted to a breach of contract between McBride and the vendors
- Whether the exclusion clause included in the contract prevented the vendors from being liable for the defect
Decision and Reasons for the Decision
The Court held that Elder Smith was entitled to assume the Bull’s fertility.
However, Sheppard J also held that as a matter of fact, based on the evidence, the bull was infertile at the time of sale and the purchaser had bought a “breeding bull”.
Whether the plaintiff was entitled to claim the purchase price of the bull
With respect to the first issue, Sheppard J found that Elder Smith was entitled to assume the Bull’s fertility and to treat him as a breeding bull.
Whether the sale of an infertile bull to the defendant amounted to a breach of contract
With respect to the second issue, Sheppard J held that the vendors had breached the contract. Sheppard J established that each of the parties intended to contract for a “stud breeding bull.” The fact that any inspection of the bull would not have exposed its infertility, combined with the circumstances which suggested that the bulls for sale were suitable for breeding purposes, satisfied Sheppard J that the bull had been sold by the description that he was a breeding bull. Therefore, by the operation of
s 18 of the
Sale of Goods Act 1923 (NSW), the contract contained an implied condition that the goods would correspond with their description, and as such, delivery of a sterile bull rather than a breeding bull amounted to a breach of this condition.
The effect of the exclusion clause
In relation to the third issue, Sheppard J interpreted the exclusion clause contained in the catalogue so as to release the vendors from liability only in respect of faults which could be detected upon inspection. As the bull’s infertility could not be detected on a visual inspection, the vendors remained in breach of contract. Sheppard J consequently ordered that McBride was entitled to receive the sum paid for the bull as a breeding bull, less his actual value for the purposes of slaughter; the award of damages amounted to $20,500.
Significance of the Case
This case provides another example of how the law considers animals to be items of personal property. Consumer protection legislation, such as the
Sale of Goods Act 1923 (NSW), accordingly applies to transactions involving animals. In this way, the case also demonstrates the law’s recognition that animals can be valued in monetary terms. Such value may be determined by the animals’ innate capabilities, or by the income they are able to generate.
Additionally, the case highlights the breadth of rights attaching to animal ownership.Although the bull was bought for breeding purposes, it was permissible for him to be sent to slaughter.
Prepared by Vuu-Cindy Dang
Court
Supreme Court of New South Wales
Facts
Saltoon, the plaintiff and respondent, lent $20 000 to Scali, which was secured by a mortgage over four horses, one being Mighty Khan. The security agreement was contained in a deed dated the 5
th August 1975. In this, Scali assigned Mighty Khan to Saltoon subject to the condition that he or she would be reassigned to Scali upon the repayment of the principle sum and interest, as well as the fulfilment of all covenants, conditions and agreements provided for by the deed. The deed stipulated that the mortgagor, being Scali, would assume responsibility for the care of the horse.
At the time of the mortgage agreement, Mighty Khan was being trained by Lake, a defendant and appellant. While a letter was supposed to be sent to Lake to notify him of the mortgage over the horse, this was never received. The judge at first instance accepted that before proceedings commenced, the defendants were unaware of the mortgage.
After several transactions which took place between the conclusion of the mortgage agreement and the proceedings being initiated, the first, second and third defendants had acquired Scali’s interest in Mighty Khan. The fourth defendant, being Lake, had possession of the horse.
Scali then went bankrupt.
Issues
Decision and Reasons for Decision
The Court dismissed the appeal.
Failure to register the deed as a stock mortgage
The first submission was that as the deed was not registered as a stock mortgage, it was void in accordance with
s 13 of the
Liens on Crops and Wool and Stock Mortgages Act 1898 (NSW). The Court determined that the purpose of the Act was to facilitate the mortgage of stock, and also eliminating invalidity caused by mortgagor bankruptcy and fraud. Based on the interpretation of the legislation, the Court rejected the submission that a failure to register the stock mortgage wholly invalidated it.
Effect of the mortgage
The second submission was that
s 5(1) of the
Bills of Sale Act 1898 (NSW) rendered the plaintiff's mortgage void upon Scali’s bankruptcy. It was accepted that the unregistered stock mortgage was a bill of sale. However, the Court held that
s 5(1) operated to invalidate an unregistered bill of sale where necessary to facilitate the Official Receiver’s recovery of property in the event of bankruptcy. It did not result in the comprehensive invalidity of the bill of sale. As such, the second submission failed.
Whether others should take priority
The third submission was that the conduct of Saltoon was such that the Court should give priority to the interests of the first, second, and third defendants over him. It was claimed that Saltoon had participated in a fraud; however, the Court held that this had not been established with evidence. It was also found that Saltoon’s failure to take possession of the certificate of registration with the Australian Jockey Club upon acquiring the mortgage did not disentitle him of the benefit of his security.
Application of the Sale of Goods Act 1923 (NSW)
The Court held that equitable rules relating to mortgage priorities operate independently of
s 26(1) of the
Sale of Goods Act 1923 (NSW). While the defendants could have made a claim based on this section in an attempt to establish their title to the horse, they did not argue this.
Significance of the Case
This case affirms the property status of animals under Australian law. It demonstrates how the law’s characterisation of animals in this way allows them to be used for an array of purposes, including as security for a mortgage agreement.
2.4 Desanctis v Pritchard 803 A. 2d 230, PA Super 221 (2002)
Prepared by Jennifer Hird
Court
Superior Court of Pennsylvania
Facts
Desanctis, the appellant and the former husband of Pritchard, the respondent, sought injunctive relief with regard to a dog, named Barney, acquired during their marriage. In August 2000, a month prior to their divorce, Desanctis and Pritchard entered into an apparent settlement providing for the care of Barney. The agreement stated that Pritchard was to have full custody of Barney, whilst Desanctis had visitation rights. The agreement was not incorporated into the divorce decree.
In March 2001, Pritchard moved house and Desanctis was no longer able to visit Barney. In May 2001, Desanctis filed a complaint in equity requesting the trial court to:
1) Grant injunctive relief to require “shared custody” of Barney;
2) Declare the respondent in breach of the agreement;
3) Amend the agreement to provide for “shared custody”; and,
4) Award reasonable legal costs.
In June 2001, the respondent filed preliminary objections to the complaint.
The trial judge, Mahon J, dismissed the appellant’s complaint finding that the terms of the agreement were clear and unambiguous. The respondent held exclusive ownership of Barney and his social schedule. Desanctis appealed to the Superior Court of Pennsylvania.
Issues
- Whether the trial judge erred in disregarding s 3105 of Title 23 (‘the Code’) and improperly concluding that ss 3503 and 3504 of that Code terminated Desanctis’ rights regarding Barney
Decision and Reasons for the Decision
On appeal, Montemuro J affirmed the trial judge’s order and dismissed the appeal.
Under Pennsylvania law the legal status of a dog is “personal property” (
Price v Brown 545 Pa. 216, 680 A.2d 1149, 1153 n.3 (1996)). Accordingly, Desanctis’ request for “shared custody” of Barney was contrary to the intention of s 3105 of the Code, under which the action was bought. That section allowed for enforcement of an agreement between the parties as if it were an order of the Court, unless the agreement provided otherwise. The court held that those parts of the parties’ agreement that attempted to create custodial or visitation rights over personal property were void. Instead, the Court found that the parties’ agreement effectively acknowledged that Barney belonged exclusively to Pritchard.
One issue before the appellate Court was whether the trial judge could have exercised discretion to enforce the agreement, as this was permitted pursuant to s 3105. Montemuro J emphasised that the trial Judge was correct in not exercising discretion, as the terms of the agreement relating to custodial or visitation rights were void. In affirming the decision of the trial court, Montemuro J relied on ss 3503 and 3504 of the Code that deal with property rights following a divorce, as well as Barney’s classification as property under Pennsylvanian law.
Significance of the Case
This case highlights the way in which the property status of animals is relevant across a range of legal areas, including family law. The fact that the parties had attempted to arrange shared custody of Barney suggests that they had an emotional relationship with him, illustrating the unsuitability of the law’s conceptualisation of Barney as property.
2.5 Nakhuda v Story Book Farm Primate Sanctuary [2013] ONSC 5761 (13 September 2013)
Prepared by Ashleigh Best
Court
Ontario Superior Court of Justice
Facts
Nakhuda, the plaintiff, who was a lawyer and resident of Toronto, purchased an illegally- imported monkey from an exotic animal supplier for $5000. A bylaw of the City of Toronto Municipal Code prohibited a monkey from being kept within the city. On the day in question, Nakhuda’s monkey accompanied her to a shopping centre and remained in Nakhuda’s car locked inside a crate. While Nakhuda was away from the car, the monkey escaped and entered the shopping centre. The monkey was collected by Toronto Animal Services (TAS). When Nakhuda arrived at TAS to reclaim the monkey, she signed a form which provided for the transfer of ownership of the monkey to the City of Toronto.
Tests were performed to ensure that the monkey was not infected with any diseases, particularly Hepatitis B. The monkey was then adopted by Story Book Farm Primate Sanctuary, the defendant.
Issues
- Whether Nakhuda was the owner of the monkey given his status as a wild animal and the fact that she had lost possession of him
- Whether Nakhuda had surrendered ownership by signing the form at TAS
Decision and Reasons for Decision
Whether Nakhuda was the owner of the monkey
Vallee J found that, in accordance with common law principles relating to the ownership of wild animals, Nakhuda lost ownership of the monkey when she lost custody of him. The monkey was therefore held to be the property of Story Book Farm Primate Sanctuary and the action by Nakhuda to recover the monkey was dismissed.
First, Vallee J noted that as “the monkey is… a piece of property”, property law should be applied to determine the ownership of the monkey. Second, her Honour referred to the common law principles relating to the ownership of wild animals as recognised in
Campbell v Hedley (1917) 37 DLR 289. According to this case, wild animals are “wild by nature because of habit, mode of life or natural instinct, are incapable of being completely domesticated and require the exercise of art, force or skill to keep them in subjection.” The phrase “wild animal” thus refers to “the nature of an animal, rather than how it is treated”. In light of the inability of the species to become house-trained, Vallee J was satisfied that the monkey was a wild animal. As “wild animals are owned only while they are possessed”, Nakhuda ceased to be the monkey’s owner as soon as he escaped her custody.
Vallee J noted that if an owner could demonstrate that a wild animal has a habit of returning home, this fact could provide an owner with “a greater ownership interest in the animal once it had escaped”. However, in this case, there was no evidence to suggest that the monkey had such a habit, as he had never previously escaped Nakhuda’s possession. Moreover, as the monkey had not been stolen, the doctrine of immediate pursuit, which would prioritise an owner’s rights in the animal over the possessory rights of a thief, did not apply.
Vallee J found that as the Canadian environment could not support the natural habitat of the monkey, there was no requirement in these circumstances that the monkey “regain its natural liberty” before ownership was lost. Her Honour also found that the contents of the Toronto bylaw were different from common law principles relating to ownership of wild animals. As such, it was not necessary that the bylaw applied to the exclusion of the common law, instead both could operate.
Although Vallee J conclusively decided that Nakhuda lost ownership when she lost possession of the monkey in accordance with the common law principles, her Honour also responded to the other arguments raised.
Vallee J rejected Nakhuda’s submission that the monkey was a gift. Her Honour found that although the exotic animal supplier was prepared to refund Nakhuda after she was dispossessed of the monkey, the original payment had still been made.
Whether Nakhuda surrendered ownership by signing the TAS form
Vallee J dismissed Nakhuda’s submission that she was unduly influenced when signing the form. It was held that Nakhuda did understand that signing the TAS form had the effect of transferring ownership of the monkey to the City of Toronto. This was particularly the case, given Nakhuda’s her legal training. Her Honour also affirmed that TAS was entitled to detain the monkey in accordance with the “protective custody provisions” within the bylaw, regardless of whether or not the form was signed by Nakhuda.
Significance of the Case
This case illustrates how the law provides for the ownership of animals as items of personal property. It also demonstrates the inflexibility which flows from the property status of animals; although Nakhuda only lost custody of the monkey for a brief period of time, this was sufficient to prevent her recovery of the monkey permanently. The law’s focus upon the monkey’s species rather than his circumstances in determining his status as domestic or wild is also an upshot of its characterisation of animals as property, as this eliminates consideration of the animal’s adaptability, preferences and sentience.
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