Words We Don’t Understand - Replevin And Detinue

Ask the ordinary citizen about the meaning of the above words and most people won’t know what they mean. Ask lawyers and only a few know what they mean.

Each of these words refers to an individual seeking to obtain the return of property that is in possession of another. Let's assume that you loaned your neighbor an expensive garden tool such as a tiller for which you paid $425 and your neighbor refuses to return it. An action (called a cause of action) in the form of a written complaint may be presented to a district court in Maryland to have the property returned to you. This is one example where the person who refuses to return the property to the owner was actually given the property, not forever, but often on a temporary basis. The question is whether the owner wants to seek the return of the property and its loss of use or, alternatively, seek the return of the property or its fair market value. The first cause of action where the owner seeks both return of the property and only the loss of use as damages is called replevin. On the other hand, a person who would rather have the fair market value of the property and damages for the loss of use would file an action called detinue.

Here are some examples of why some people choose replevin over detinue. The tiller that you loaned your neighbor was loaned to him at a time that you were traveling to Europe and would not be using the tiller while you were away. However your neighbor, who has 4 acres of property, used your equipment resulting in overuse of the tiller. Thereby, the tiller was not in as good shape as it was at the time you permitted your neighbor to borrow it. In this example, knowing its fair market value as of the date it was not returned and seeking its fair market value instead of return of the tiller may be of greater benefit to the owner. However, the tiller that was originally purchased for $425 may not be worth $425 at the time of seeking detinue.

An engagement ring, which is typically a conditional gift, may provide another example of why you would want replevin. Let's assume that the diamonds used in the ring were diamonds that had been given over a couple of generations to a family member and to propose marriage. The gift was made in contemplation of marriage as a conditional gift. If the marriage never occurs, the condition is unfulfilled and thereby the proposal’s condition does not occur. The condition not being fulfilled results in the fiancée having to return the engagement ring. Here is where replevin would be sought because the diamonds used in the ring have a special meaning to the person who gave it.

Years ago we represented a very large manufacturer of copying equipment. Salespeople seeking to induce customers to lease or purchase would bring a very large photocopying machine and demonstrate it at their prospective customer’s office. The salespeople would say “try the machine out and if you're not satisfied after 30 days, return it at no cost to you”. This was happening so frequently that business owners realized that they could get the free use of a photocopying machine for an indefinite period of time. The business owner after 30 or more days wanted to try to extend the free use of the machine for additional months. After the additional months, they would ask for additional months or would refuse to return the machine. Here is an example where replevin would be used to have the equipment returned. If the machine were damaged, an additional cause of action could be brought.

The District Court of Maryland has forms that when properly completed, filed with the court, and served on the person or business who is not returning the goods, may enable the owner to obtain from the court a court order. The court order from the court would require the sheriff to go to the premises of the possessor of the photocopying machine and reclaim the photocopier plus damages for loss of use. Often after the filing of a replevin action, the possessor of the photocopier would voluntarily return the equipment or permit the photocopying manufacturer to pick up the photocopying machine.

There are other important details about replevin. The replevin typically results in two appearances in court. The first appearance is after the possessor of the photocopying machine, as in the example above, has received service of process (the required notification to the defendant either personally or by certified mail and a signature of receipt). The possessor of the photocopying machine has to show cause in court why he or she is entitled to keep the photocopying machine. Typically, in the factual example, the possessor of the photocopying machine will not have a basis for keeping it. There is actually a hearing before a judge to determine whether or not the possessor of the photocopying machine may continue to possess the photocopying machine. If the court grants an order requiring that the possessor of the photocopying machine immediately return the equipment, the owner then has to file a bond. The purpose of the bond is that if, at the second hearing which is held in the future and when the trial on the merits occurs, the owner is successful, the owner will be permitted to own the machine forever unless there is an appeal. In the event that it is determined that the owner did not have rightful possession for many reasons, then the bond will pay the possessor of the photocopying machine any damages that are a result of loss of use.

Fred Antenberg has experience in handling detinue or replevin actions.

Call Fred at 410 730 4404 for a free initial consultation.