In most states, and under federal law, if you receive stolen property or ill gotten gains, even unknowingly, the authorities will confiscate it from you and return it to the rightful owner. And you as the 3rd party have no recourse in the matter. If you willingly return it to the rightful owner on your own, you come out looking good. If the authorities confiscate it, you look like a chump. Either way, you come out on the short end of the stick.
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There is something very important that should be stated, and I have posted this before. There is a principle of law as it relates to real and personal property called being a “bona fide purchaser.” Those who are competent in the legal field (attorneys) and law enforcement will be very familiar with the term. If you pay or trade a fair price for something (called “consideration”), not knowing that the item was stolen, and not having any reason to believe that it was, you have no obligation to return that item. The original owner, who the item was stolen from, has rights to file legal action against the person who stole the item from them.
On the other hand, if you buy a $3,000 item, for $5, someone might conclude that you knew or “should have known” the item was “hot” or stolen. The reason why is that you paid a mere $5 for something knowing it’s worth, so you should know something isn’t right. If you have proof that you paid or traded a fair value for something, it belongs to you. If the original owner wants it back, and you want to be nice, they might pay you what you spent on it to have it returned. You would be under no legal obligation to give up ownership or title to it. Don’t let anyone manipulate you out of something you paid or traded a fair and reasonable value to own.
No one can charge you or arrest you for anything, if you have proof you paid/traded a fair price and you had no knowledge of any theft at the time you got it. The key here is that you paid or traded value for it…not a gift.
If you want to give up what you paid for after knowing it’s bad history…your choice, but you lose out on the value. As a bona fide purchaser, you certainly have legal recourse in court. I cited the legal principle I am relying on.
The real chump is the thief and anyone who tries to manipulate you out of what you paid for when you did nothing wrong.
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Hmmm, maybe you should practice law in MN, or federal court. There’s a car dealer here who took a car in trade and sold it. Turned out to be stolen. The police returned it to the rightful owner. The buyer sued the dealer, the dealer sued the guy who traded it. He was left short in the deal. He had purchased it from the thief. The lucky people who happened to make money off of Bernie Madoff are all in court over their gains, which they believed were legit. Police recover stolen property regularly from innocent people.
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In the U.S. at least, the principle of nemo dat generally supercedes that of bona fide purchaser in determining ownership of stolen goods. While you can’t be arrested or prosecuted for unknowingly buying stolen goods, the original owner still has a legal right to them.
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I am going to explain the difference between the circumstances, and why a court would have found that car dealer liable. First , a car dealer has a “duty” (legal duty) to make sure they have clear title to a vehicle in the first place, before they put it up for sale. So, if a car is sitting on a lot that has a V.I.N. number reported stolen by the original owner, the dealer has every reason to believe that the vehicle is stolen. When vehicles are stolen, they are reported by the owner, and their identifying information, V.I.N. and last known plate entered into a stolen vehicle database. Any dealer who has not checked the stolen database on a used car, prior to selling the vehicle, has not complied with their legal duty. The same thing applies to a tow company, which must clear the status of the vehicle that is on their lot. Here, they also cannot tow a car and claim to not know it was stolen and give it back to someone who purports to be the owner…but is not. Car dealerships, and tow companies have a means of checking the vehicle status to make sure that it is not stolen. A dealer who did not follow that protocol obviously would be held liable for their neglect of duty, because they “should have known” it was stolen…if they checked as they were supposed to. That is consistent with my above statement.
In that situation, the original owner, and the bona fide purchaser of the vehicle would seek damages from the dealer. No way would any owner actually fault the bona fide purchaser who had no clue that the vehicle was stolen when he bought it. Both the original owner and the bona fide purchaser can seek any damages from the dealer (the real bad guys who didn’t check the title before they sold it). The dealer can sue the thief…that’s their problem.
Now, I will apply it to yo-yos, because we’re on a yo-yo forum after all. There is no duty for a yo-yo buyer or seller to “clear title” on a yo-yo. There is no database where someone can check before they buy or sell to make sure they have good title. They just know that they paid a fair price, or traded a fair price for it. As I stated, the law will find you at fault if you know or “should have known” something was stolen. The dealership “should have known” because they should have done their due diligence on the title to find out prior to selling.
In terms of Madoff, just because someone is “in court” for something does not make them at fault, legally liable, or guilty of anything at all. People are named in lawsuits all the time who did nothing wrong. Also, the gains received in the Madoff cases were not typical gains, and an attorney might argue that the recipients “should have known” the gains were illegal. They were extremely high. That supports what I stated earlier, about paying $5 to get a $3000 value. So, those examples are not contradictory to what I earlier stated, and in fact very much support them.
No one should be faulting a person who paid or traded a fair value for something. I also think that people should have some manners. If something was stolen from them, and it has sentimental value, at least offer the bona fide purchaser a reward in the value of the item in effort to get it back. Don’t ask, make damands, or have expectations. Say something like…
“Hi, my name is Bob, it has come to my attention that you are the current owner of a yo-yo stolen from me in the past. I believe you bought it from the thief Mr. X. I would never ask a stranger who paid or traded a fair value for something to sympathize with me and part with their yo-yo, but I made this exception because it was a gift from my mother who died. It has tremendous sentimental value to me, and only for that reason would I ask you to part with it. In exchange for it’s return, I’d like to offer you a reward of twice the retail value of the yo-yo. I would really be appreciative of a kind gesture, as I realize you are under no obligation to return the yo-yo to me. I am willing to pay you immediately if that is agreeable to you. Thank you.”
Someone who asks without extending compensation, and makes demands, guilt trips, or manipulates and leaves the bona fide purchaser empty handed is the chump. The thief is a chump too. Never under any circumstances is a guy who did nothing wrong a chump.
I hope that explains the car dealer and Madoff too. Here in my state, you’d have to show up to the police station with proof of ownership to report it “stolen.” That is why police can seize a stolen car on sight. It is not the same with a yo-yo. They can’t run the plate or V.I.N. on a yo-yo and have it pop up…“It’s stolen from Bob Smith from Main Street!” That’s the difference.
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It “generally” supercedes it? Generally, but with exceptions to the rule? That would apply to a bona fide purchaser who buys and then subsequently sells. Please refer to paragraph 3 on Wikipedia that you linked, as it relates to the numerous exceptions to the rule. And more interestingly the end of paragraph 4:
“This ruling demonstrated that bona fide purchasers are entitled to some rights by virtue of possession alone, or that nemo dat is superseded by the bona fide purchaser’s right to privacy.” Possession is nine tenths of the law. The bona fide purchaser has possession. How would police confiscate his property without violating his right to privacy?
How many so called “original owners” are the original when it comes to yo-yos? And, even if they are, how many can prove it to an extent that they can pop up and say, “Hey, that’s mine, I want it back.”
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Nemo dat generally supersedes bona fide purchaser with some exceptions, but unless you have a specific exception that is explicit in the law, you should assume nemo dat applies.
Stolen money is one exception–you can’t reclaim money from a vendor who sold goods to someone who stole money from you. I think statute of limitations is another potential exception, where if the property was stolen long enough ago that the owner has no legal recourse against the thief, they also don’t have legal recourse to reclaim the property from a bona fide purchaser. There are also exceptions dealing with disputes over items that are not actually stolen but sold by an agent acting on behalf of the owner. The general rule though is that if you buy stolen property unknowingly, and then it is later discovered that you are in possession of stolen property, the ownership rights are retained by the person it was stolen from.
You can read more about nemo dat and its exceptions (along with a few relevant court cases) here if you are interested: http://www.lawteacher.net/commercial-law/essays/the-nemo-dat-quod-non-habet-rule-commercial-law-essay.php
The ruling on the right to privacy was that the bona fide purchaser was protected from electronic surveillance. That right to privacy does not entitle someone to property that is legally owned by someone else. The issue in that case was that the innocent third party had webcam footage recorded. The ruling was not that they had a right to keep the stolen laptop they had bought, but that the fact that they were not aware that it was stolen meant they were still entitled to privacy rights with regards to surveillance and could sue the security company that recorded their footage for violation of privacy.
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I think we’ll leave that up to a court of law to decide.
In this context, I will give an exception of estoppel for one thing (that’s if the alleged original owner can even prove he ever owned the yo-yo in the first place and that he is indeed the original owner). The alleged original owner, who traded the property on a yo-yo forum to another individual, by his own hand (for example), but did not receive compensation for it, means that he willingly parted with the property. If he gave it away, it ended up with a thief by his own negligence, so he should not retain any ownership rights. After all, he didn’t even want the property to begin with.
I agree that you would need a very specific example to work with, to make any legal argument for or against a bona fide purchaser or the application of nemo dat, and it’s exceptions. But that also means that you can’t apply the law generally either. It is up to an attorney to argue in court the rights of a bona fide purchaser as relative to the alleged original owner or the person who defrauded them both. Both are victims in the matter.
As it relates to the article you cited, it calls a bona fide purchaser an “innocent party,” which I stated that he is. That supports my initial statement that he too is a victim. He would never be a chump. He will not be prosecuted, arrested, and should not be afraid to tell the so called original owner to “lawyer up” and prove that ownership in a court of law. He is, in fact, a victim, the same as the alleged original owner arguably might be. But, he is more of a victim because he never traded the item away to begin with (in the yo-yo example). His only actions were to keep it, not any actions to give it away. No way should he be manipulated to throw up his hand, and be the loser of the value of the item, especially in a situation where the original owner does not even want the thing (in this context traded it away on the forum). He should not be encouraged to just turn the item over for fear of “looking bad.” He is a victim, so he would not look bad at all. He is legally viewed as a victim.
So, for the OP to state that a bona fide purchaser has “no recourse in the matter,” is incorrect. He does have legal recourse in the matter. The article you linked supports that, and he can rightfully tell the so called original owner to not only prove ownership, but lawyer up, while he fights to retain his rights to an item he paid for and that the alleged owner in my example gave away. After all, this relates to yo-yo trades in this context, so we’ll use that example.
A bona fide purchaser, is a victim, who can maintain his right to ownership in court, which he is allowed. He does have “recourse” legally and will never be a “chump” for exercising those rights.
If the alleged original owner as in a recent forum case:
- Does not want the item to begin with, and had it up for trade to get rid of it; and
- Parted with it by shipping it away to the thief (arguably his own negligence); and
- The item is not even sentimental to him; and
- He has contact information for the thief, such as an address; and
- He knows the thief’s true name…
Why, even from a moral perspective, would an alleged original owner in that situation bother the bona fide purchaser (a victim) to manipulate the unwanted property from him, instead of file suit against the known thief?
Now, that is beyond me.
As it relates to privacy and the right of people against illegal search and seizure, how would authorities access the “stolen yo-yo,” from the case of a bona fide purchaser, someone who traded or paid a fair value for the item…and can prove it? Once the item is known to have been paid for, what legal right would authorities have to confiscate it from his home? The answer is, none. Again, the settling of a property dispute, in this context, where a person traded or paid a fair price, is determined in a court of law. Until a court orders a bona fide purchaser, who has possession, to turn over his property, he does not have to turn it over, and should not be manipulated into doing so.
The bona fide purchaser would never look bad to me, as he is the least at fault for the theft. Other people look bad in the situation, the thief and in some cases the original owner, but not him.
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This thread is making for some fascinating reading.
Yuki
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I also agree haha I’ve learned much from this
-Dylan
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Trading/selling goods isn’t negligent (though that article notes that there isn’t legal precedent in the U.S. for estoppel by negligence, and that argument has failed in court before), and not being in possession of something you own doesn’t relinquish your ownership rights. Unless you are arguing that scamming someone on a yoyo forum is not actually stealing and that scamming a yoyo from someone means you rightfully own it (and thus have the right to sell it). Estoppel would have to prove that the owner had no right to stop the seller from selling the item–just because the owner wants to sell or trade the item doesn’t mean someone else can steal it and then legally sell it.
You are right that someone who finds out they have a stolen yoyo could probably choose to keep it in spite of not being the legal owner because it is very unlikely that a kid who had a yoyo stolen will hire a lawyer and take them to court. If you decide to tell someone to get a lawyer to assert their rights, you will probably keep the yoyo.
Of course the thief is ultimately the one responsible. If you buy stolen property from a thief and then return it to the owner, the thief now owes you what you paid for it. In cases when neither victim can be compensated by the thief, the victim who had the item stolen has legal ownership over the victim who bought the stolen goods. It does suck either way because someone innocent is getting the short end of the stick. Ideally the thief can be made to remedy the situation so that doesn’t have to happen.
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TA, I’d be willing to bet a considerable amount that you’re an attorney. My aunt has been in the field for over 20 years, and you sound almost exactly like her 
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^ I have been trained in that area, for sure.
I’m counsel for the bona fide purchaser, and Yossarian is counsel for the alleged owner. Notice that I call him “alleged owner.” No ownership proven yet. 
Trading/selling goods can be done in a negligent fashion, and that is done all the time here unfortunately. Estoppel even if it failed in court before, it has not failed under these specific circumstances has it? Where there is no precedent in the U.S. for Estoppel, here perhaps we will create a case of first impression and attempt to win at it with these specific facts. But, first, Yossarian’s client has to file a complaint and prove ownership existed.
Negligence is relevant as it relates to the practice of trading and selling in the context of the yo-yo forum. I would enter testimony of some experienced traders on the forums. In the example, the original owner, and the one who apparently shipped first to a person with little or no feedback, obviously did not take reasonable steps to safeguard himself, or his alleged property in the transaction. His failure to do so was arguably what in fact helped facilitate the theft. But for his error in judgment, the thief could not steal the yo-yo that way, and the bona fide purchaser would not have bought the yo-yo from the thief. In the yo-yo example, the owner is not someone who had a thief break into his home and steal his yo-yo. This owner, incurred and accepted the risk by not having the other party ship first, and addressed and mailed the yo-yo himself to a person he personally selected to do business with…the thief. I believe that testimonial evidence would show that the original owner knew the risk of trading in that manner, and accepted that risk. The bona fide purchaser, on the other hand, did not make such an error, simply traded and he made sure he got what he paid/traded for. While not being in possession does not relinquish ownership rights, it does prove who in fact has the item, and forces the alleged owner to explain how the item left his possession in the first place. If the explanation is that the owner mailed it away, by his own hand, to someone he selected, hoping to get something back, but incurring and knowing the risks of trading in that manner, I think in this context, with these facts, the bona fide purchaser can make his strong case.
There is indeed an argument on behalf of the thief, who does not think he stole anything. As far as he is concerned the yo-yo was addressed and mailed to him. If the scammer is alleging ownership of the yo-yo, and stating that he had right to convey it, and it is not his fault the alleged original owner never received his end of the trade, but the fault of the USPS, the scammer might be a testimonial witness for…the bona fide purchaser. No one is representing the thief today…not sure where his attorney is. He has not filed an appearance in this case.
If anyone comes to me claiming any yo-yo in my collection was stolen from them in the past, my first response is “prove it.” And, I mean, don’t prove it in an email, prove it in a court of law. Prove that you owned it to begin with. Where is your receipt, and your photo with the yo-yo in it’s exact splash pattern? When did you file with the police department that it was stolen property? That is a pretty high burden from the start. As you know, the burden rests with the complainant, so good luck with that, I’d say. People claiming yo-yos were stolen from them will be the next scam of the century too. So, don’t let people bully you out of your yo-yos that you paid a fair price or traded for. If they are not offering to make you whole again, and you don’t want to part with it, make them file in court and fight for your rights.
I agree, that the thief is the bad guy, but that makes me wonder why there is a post about receiving stolen property, instead of a post about not stealing stuff and the ramifications of stealing. :-\ Why would a bona fide purchaser be a “chump” for making the alleged owner prove it in court before giving up what he paid for? And, especially in an example as detailed above where where the owner wanted to part with the item anyway, why should the person who made every effort to pay for the item and keep it, be the one who ends up empty handed? I agree, that if that was to happen, it would be unfair.
I agree, a kid is unlikely to seek counsel, and I believe he still runs the risk of not winning it back if he did. Something like this would probably end up in small claims court at $100 value. They just make a decision that seems “fair” that day. The alleged owner has the burden of proof, and if they are willing to climb that hill, a bona fide purchaser should call them out on it. It must be proven by a preponderance of the evidence too. A bona fide purchaser should call the alleged owner on it every single time in this context, especially if the owner made a negligent trading decision that got the whole thing to snowball in the first place. Would a judge make the same decision on a $10,000 car as a $100 yo-yo anyway…especially a cheap yo-yo the owner testifies he didn’t even want to keep? Hmmm…somehow…I truly doubt that one.
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Aha! You didn’t directly answer the question… You are clearly a lawyer.
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You’re very perceptive, and definitely onto something. Me and your aunt share the same degree. I’m still ducking and dodging huh? :D. I never had anything like this happen to me, but kinda had someone contact me about a yo-yo I have, that may have been one they traded away to someone, but the original owner later had trader’s regret due to sentimental reasons. I sent him more photos but he never got back to me about whether it was the same one. I can’t imagine making a decision on whether to let that one go, and on what terms. I’m glad it never came to that.
I’m curious kclejeune, if someone PMed you that one of your throws had been stolen from them, how would you respond? Just curious as I bet on a personal basis this varies quite a bit. Who would give it up, and on what terms?
Here are my terms…where I’d give it up instantly:
- They yo-yo has sentimental value;
- To someone who can prove ownership to my satisfaction;
- Who has no plans to resell it; and
- At least offered to compensate me in some way for my loss (whether I accept payment or a trade would depend); and
- The item can be replaced eventually, and is not a one of a kind anyway.
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Basically if another person got scammed out of a yoyo, and then I traded for that yoyo, what would I do? I would probably find a way to split the difference, but I don’t really know to be honest. If it’s a really really valuable thing I traded for I would try and split the difference because otherwise I’m out a pretty hefty loss as well.
Sooo, basically your conditions.
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Yeah, I think splitting the difference is more fair and equitable, rather than there being a total loser in the scenario. This is one of the many reasons I don’t like trades, and prefer to buy or sell. With a trade there is less of a valid record of a real receipt. Buying or selling, at least you have Paypal documentation of what was sold, when, and for how much.
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That’s the reason I don’t trade much. I make positive that I only trade with reputable forum members that have a lot of good feedback.
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