Duhaime's Law Dictionary


Transfer Definition:

Delivery from one person to another of property.

Related Terms: Transferee, Transferor, Property, Sale, Conveyance

John Bouvier's 8th edition law dictionary of 1914 defined a transfer as "the act by which the owner of a thing delivers it to another person, with the intent of passing the rights which he has in it to the latter".

In CIBC v AK Construction, the Alberta Court of Queen's Bench quoted and agreed with this statement of the law.

On that basis, a transfer refers to the physical surrender, or delivery of an item of property to another, including exclusive use, followed soon thereafter of the transfer of title or ownership, or with the intent that such transfer occur eventually.

In a transfer, these two steps can occur consecutively as opposed to the usual course of events of concurrent occurrence of  delivery of the item and of ownership right(s).

This is reflected in the words of Justice Stone in the 1939 Supreme Court of United States case, Estate of Sanford:

"(T)he essence of a transfer is the passage of control over the economic benefits of property rather than any technical changes in its title."

In many cases, the word transfer is defined by some governing statute. Often, it is defined to include any and all movement of property rights from one to another. For example, in Hoecker v United Bank of Boulder, Justice Orie Phillips of the United States Court of Appeals quoted the federal bankruptcy statute, circa 1973, at 11 U.S.C. §1(30):

"Transfer shall include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security, or otherwise; the retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by such debtor."1

This simpler legal meaning is also reflected in the Canadian case Furfano-Siconolfi, in which Justice Pinard of the federal Court of Canada was content to adopt these definitions of transfer:

"... act by which a person passes a right to another. Transfer of ownership.... Legal synonym of conveyance... Transfer of ownership, operation by which property changes owner ... Conveyance from one person to another of property."

In the context of employment relations, a transfer generally refers to a movement of an employee from one job to another without any loss of seniority, classiffication or benefits. The cases differ as to whether, in employment law, a promotion is a transfer.

Lest the reader be disappointed and adversely judge Duhaime's Law Dictionary for the apparent incohesiveness of the definition of the word transfer, we would be remiss if we did not reiterate the words of Justice James of the English Court of Appeal in the 1881 case of Gathercole v. Smith, a dispute that pitted priest against priest, the defendant having replaced the plaintiff on the Isle of Ely in 1877. At issue was the legal meaning of the word transfer and though Justice James wrote "widest", we believe the opinion would of been closer to the truth if he had of used the word wildest:

"Transfer is one of the widest terms that can be used."

French: transfert.

REFERENCES:

  • Canadian Imperial Bank of Commerce v. A.K. Construction (1988) Ltd. and A.K. Construction Ltd., 39 Alta. L.R. (3d) 216 (1988)
  • Estate of Sanford v. Commissioner, 308 US 39
  • Furfaro-Siconolfi v. R., [1990] 1 C.T.C. 188
  • Gathercole v. Smith, [1881] 17 Ch. D. 1
  • Hoecker v. United Bank of Boulder, 476 F. 2d 838 (1973)
  • NOTE 1: The definition at United States Code, Chapter 11 is now, circa 2011, shorter but still very large: "The term transfer means ... each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property; or an interest in property." See §101(54).
  • R. v. Parent Cartage Ltd., 12 MVR 177 (1981)

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