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''Jus tertii'' ( English: third party rights) is the legal classification for an argument made by a third party (as opposed to the legal title holder) which attempts to justify entitlement to possessory rights based on the showing of legal title in another person. By showing legitimate title in another person, ''jus tertii'' arguments imply that the present possessor’s interest is illegitimate or that the present possessor is a
thief Theft is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word ''theft'' is also used as a synonym or informal shorthand term for some ...
. Under United States law, ''jus tertii'' arguments are generally insufficient to support actions for
replevin Replevin () or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology The word "replevi ...
because they fail to show that possession is ''more'' legitimate in the third party than in the present possessor. However, a
bailee Bailment is a legal relationship in common law, where the owner transfers physical possession of personal property ("chattel") for a time, but retains ownership. The owner who surrenders custody to a property is called the "bailor" and the in ...
or other legal
agent Agent may refer to: Espionage, investigation, and law *, spies or intelligence officers * Law of agency, laws involving a person authorized to act on behalf of another ** Agent of record, a person with a contractual agreement with an insuranc ...
of the owner may successfully assert the argument. The principle is sometimes used to allow one person to enforce or test the constitutional rights of another, which usually can't be done due to lack of standing. This is only possible for fundamental rights, where there is a close connection between the person whose rights are violated and the person wishing to enforce them, and the constitutional right being enforced is a fundamental right. See, e.g., ''Singleton v. Wulff'' Et Al., 96 S. Ct. 2868, 428 U.S. 106 (U.S. 1976).


Hypothetical example

Art brings an
action Action may refer to: * Action (narrative), a literary mode * Action fiction, a type of genre fiction * Action game, a genre of video game Film * Action film, a genre of film * ''Action'' (1921 film), a film by John Ford * ''Action'' (1980 fil ...
for replevin against Burt, seeking to recover a
bicycle A bicycle, also called a pedal cycle, bike or cycle, is a human-powered or motor-powered assisted, pedal-driven, single-track vehicle, having two wheels attached to a frame, one behind the other. A is called a cyclist, or bicyclist. Bic ...
. In support for the action, Art presents evidence that Cathy is in fact the true owner of the bicycle in question, not Burt. A US court would reject Art’s ''jus tertii'' argument for replevin because he has failed to show that he has a more legitimate interest in the bike than Burt.


Case law example

In ''Gissel v. State'', 727 P.2d 1153 (Idaho 1986), Gissel unlawfully harvested wild rice growing on land jointly owned by the state of Idaho and the
National Forest Service The United States Forest Service (USFS) is an agency of the U.S. Department of Agriculture that administers the nation's 154 national forests and 20 national grasslands. The Forest Service manages of land. Major divisions of the agency inc ...
. An Idaho Court convicted Gissel of trespass, and Idaho officials seized and sold the rice at
auction An auction is usually a process of buying and selling goods or services by offering them up for bids, taking bids, and then selling the item to the highest bidder or buying the item from the lowest bidder. Some exceptions to this definition ex ...
. Because Idaho had only one half interest in the land, Gissel challenged the state’s authority to seize, sell, and keep the profits from all of the rice. The
Idaho Supreme Court The Idaho Supreme Court is the state supreme court of Idaho and is composed of the chief justice and four associate justices. The decisions of the Idaho Supreme Court are binding on all other Idaho state courts. The only court that may revers ...
held that Gissel was entitled to half of the profits because Idaho did not effectively make the ''jus tertii'' argument on behalf of the federal government, “the Gissels, though trespassers and without legal title, which title rests with the Forest Service, still by mere possession have greater rights superior to that of the state.” The ''jus tertii'' principle also extends to criminal law. For example, in ''Anic, Stylianou & Suleyman v R'',. three men were charged with larceny (among other things) after breaking into a house to steal drugs. The men argued that they should not be charged with stealing something which is unlawfully possessed. The court rejected this argument on the basis that larceny has always been an offence against possession. The common law has never recognised an absolute right of ownership. The owner is merely the person who has the best right to possession. Therefore, a person can be guilty of larceny by stealing from someone who had stolen the thing from someone else. The right to possess drugs is limited by statute but the occupant of the house had a better right to possession than the defendants.


References


External links

* *{{dead link, date=April 2017 , bot=InternetArchiveBot , fix-attempted=yes Professor Roger Bernhardt's
Property Law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual prop ...
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