EtymologyOld French replevir ‘recover’, from re- + plevir (probably from a Germanic source which also gave pledge).
Replevin is an Anglo-French law term. It is the noun form of the verb "replevy" (from Old French "replevir," derived from "plevir," to pledge). It signifies the recovery by a person of goods unlawfully taken out of his or her possession, by means of a special form of legal process. This falls into two stages:
- the replevy, the steps that the owner takes to secure the physical possession of the goods, by giving security for prosecuting the action and for the return of the goods if the case goes against him and
- the action of replevin itself (at common law, the ordinary action for the recovery of goods wrongfully taken would be one of detinue; but no means of immediate recovery liable to be seized).
Replevin is used when the party having the right of property cannot simply invoke self-help and take the property back. Where the party has the ability to do this directly, it is referred to as repossession. For example, in the U.S. States of Wisconsin and Louisiana, if one finances an automobile, becomes a registered owner of that vehicle, and fails to make payments as agreed, the lienholder cannot simply repossess the vehicle. The lienholder must go to court and obtain an order of replevin.
The French law is in force in Mauritius, and has been reproduced in substance in the Civil Codes of Quebec (arts. 2005 et seq.) and St Lucia (arts. 1888 et seq.). There are analogous provisions in the Spanish Civil Code (art. 1922). The subject of privileges and hypothecs is regulated in Belgium by a special law of December 16, 1851; and in Germany by ss. ff13 et seq. of the Civil Code.
See, e.g., New South Wales (the consolidating Landlord and Tenant Act 1899); Newfoundland (Act 4 of 1899); Ontario (Act I of 1902, S. 22, giving a tenant five days for tender of rent and expenses after distress); Jamaica (Law 17 of 1900, certification of landlords bailiffs); Queensland (Act 15 of 1904).
Replevin is an action of civil law not criminal law; therefore, because of the differing burden of proof, a defendant found not guilty of criminal theft may be nevertheless required to return the disputed item or items in civil court.
Replevin does not provide compensation for any monetary loss arising from the loss of use of some income-producing property item. Note also that replevin involves return of an actual specific item or items, not monetary compensation for loss. Thus, it would not normally be used in a case regarding a sum of money, as distinct from the loss of a rare coin, for instance, where the return of the actual coin itself was at issue. In occasional cases of no particular numismatic interest, however, e.g. a bag of money whose contents have not yet been counted, an action may be filed to recover the actual coins and/or bills in question if they are still together.
It is evident that the question of replevin becomes moot should the item in question no longer exist as an entity, i.e. if it is destroyed, or in the case of a bag of money, for instance, if the money has been spent. For this reason, the item is normally seized by the court when the action is filed and held until the decision is reached, in order to prevent the waste of a legal action over a nonexistent object and, further, to ensure that the item in question is not destroyed, spent, etc. during the duration of the action. This can be used to force a settlement from the defendant, just or unjust, as he or she is deprived of the use of the disputed object for the duration of the action; if this results in a financial loss, the defendant may find it advantageous to merely pay a relatively small settlement and have the item returned quickly.
Replevin sometimes known as "claim and delivery", is an old-fashioned legal remedy in which a court requires a defendant to return specific goods to the plaintiff at the outset of the action. Although rarely used, replevin can be a very powerful weapon in a case where somebody is wrongly holding your property, because it deprives the defendant of the use of your property while the case is awaiting trial, which increases the likelihood of a quick settlement.
Common law rules governing replevin will be abolished in England and Wales when the Tribunals, Courts and Enforcement Act 2007, s.65 comes into force.
- Woodfall, Landlord and Tenant (18th ed., London, 1907)
- Foa, Landlord and Tenant (4th ed., London, 1907)
- Fawcett, Landlord and Tenant (3rd ed., London, 1905)
- Gilbert on Distress and Replevin (London, 1823)
- Bullen, Law of Distress (2nd ed., London, 1899)
- Oldham and Foster, Law of Distress (2nd ed., London, 1889)
- Flunter on Landlord and Tenant (4th ed., Edin., 1876)
- Erskine's Principles (20th ad., by Rankine, Edin., 1903)
- Rankine's Law of Landownership in Scotland (3rd ed., Edin., 1891)
- Rankine's Law of Leases in Scotland (2nd ed., Edin., 1893)
- McAdam, Law of Landlord mid Tenant (New York, 1900)
- Bouvier's Law Dictionary (ed. G Rawle) (London and Boston, 1897), tit. Distress in Ruling Cases
- Landlord and Tenant (American Notes) (London and Boston, 1894-1901).
replevy in Korean: 동산점유회복소송