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Claim and delivery, originally replevin (, sometimes called ''revendication''), is a lawsuit that enables a person to get back personal property taken wrongfully or unlawfully and get compensation for resulting losses.〔http://global.britannica.com/EBchecked/topic/498381/replevin〕 ==Etymology== The word ''replevin'' is of Anglo-Norman origin and is the noun form of the verb "replevy". This comes from the Old French "replevir", derived from "plevir" (to pledge), which is derived from the Latin ''replegiare'' (to redeem a thing taken by another). ==Nature== In ''The Law of Torts'', John Fleming has written: In common law, several types of action existed with respect to deprivation of possession (being subdivided into the wrongful taking of chattels and the unjust detention of them, even where the original taking was lawful): : * In the case of wrongful taking: : * * A writ of replevin was available only for an unlawful taking in the nature of a wrongful distress, where restitution could be made for the goods wrongfully taken (being in the nature of a redelivery of the pledge or the thing taken in distress) with damages for the loss sustained by such action. As distrained goods are in the custody of the law, any attempt to take them back by force without a writ of replevin could be contested by writ of ''rescous'' or ''de parco fracto'', with a remedy in damages. : * * A writ of trespass ''vi et armis'' was available in the taking of goods, with a remedy in damages. :: * An action of trover and conversion was available for the non-forcible taking of goods, with a remedy in damages. : * In the case of unjust detention: :: * Replevin lay to recover goods still held after a tender of amends. :: * Detinue lay to recover lent goods where the holder refused to return them to the owner. However, the defendant was allowed to exculpate himself by oath, so this action was displaced by that of trover and conversion. At common law, the ordinary action for the recovery of goods wrongfully taken was originally one of detinue, but no means of immediate recovery was possible until the action was tried. Replevin arose to deal with the matter of the illegal distress of goods for rent or ''damage feasant'', in order to procure their restoration to the owner. Illegal distress has been held to occur where: #no relationship of landlord and tenant exists at all, #there is no demise at a fixed rent, #no rent is due, or none due to the person who has distrained, #goods have been released before the distress, or tendered before the impounding, #the entry was illegal, or #things privileged from distress (ie, neither goods nor chattel) have been seized. Replevin will not lie where if any part of the rent claimed was due, but this defence is not effective where the only rent claimed by the landlord is not recoverable by distress. It has been held that replevin applies to any wrongful taking of goods and chattel. A party seeking relief may elect to adjudicate the right to possession prior to obtaining immediate relief to obtain the property in question. In such cases, replevin actions are still designed to afford the petitioning party a relatively speedy process for obtaining judgment, as compared to typical lawsuits. The summary remedy afforded by replevin statutes can be thwarted by defendants who contest the claimant's right to possession, by contesting the plaintiff's complaint, and insisting on traditional litigation involving discovery, and in some cases, trial by jury. Replevin actions are often filed by secured creditors seeking to take possession of collateral securing loans or other debt instruments, such as retail installment contracts. A common example is where an automobile finance company initiates a replevin action to gain possession of a vehicle, following payment default. Replevin actions are usually employed when the lender cannot find the collateral, or cannot peacefully obtain it through self-help repossession. Replevin actions may also be pursued by true owners of property, e.g., consignors seeking return of consigned property that the party in possession will not relinquish for one reason or another. 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. 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 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 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 remains the modern action, albeit defined by statute, for recovery of chattels pending a decision of the right of possession. It lies only where the possession was taken from the plaintiff, whether under colour of legal process or otherwise, by an act having the nature of a trespass. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Claim and delivery」の詳細全文を読む スポンサード リンク
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