§ 100 General Principle

 The use of force against another for the sole purpose of retaking possession of a chattel is privileged if

(a)  all the conditions stated in §§ 101-106 exist, or

(b)  the other knowingly causes the actor to believe that they exist.

CAVEAT:  First Caveat:

The Institute expresses no opinion as to whether or not the actor is privileged to use force against another for the purpose of preventing the other from destroying or doing serious harm to the actor's chattel while in the possession of the other, if relief by way of injunction or other legal remedy would be too late or otherwise unavailing.Second Caveat:

The Institute expresses no opinion as to whether or not the actor is privileged to use such force short of that intended or likely to cause death or serious bodily harm as is necessary to coerce the other into surrendering the possession of a chattel, if it is impossible for the actor to extricate it from the other's possession by seizing it or overcoming the other's resistance to seizure, or if such a method of recaption reasonably appears to the actor to be likely to do serious harm to the chattel.

COMMENTS & ILLUSTRATIONS:  Comment:

a.  This Section deals only with the conditions which create a privilege of forcible recaption based solely on the fact that the actor's purpose is to regain possession of a chattel which another is wrongfully withholding from him. As is stated in the Scope Note, the actor may be privileged to use force to take possession of a chattel where his possession of it is necessary to effect some other purpose which is of sufficient importance to justify an otherwise wrongful taking to accomplish it. (See §§ 260-266.)

b.  The actor is not privileged to use force for the sole purpose of taking possession of a chattel of which the actor has not been previously in possession. This is true although the one in possession is under a duty to give possession of the chattel to the actor, and such duty could be enforced by the actor through legal or equitable proceedings.

c.  Catalogue of conditions necessary to privilege.  The use of force to effect a recaption is not privileged unless all the following conditions exist or unless the other knowingly has caused the actor to believe them to exist:

1. The other has tortiously taken the chattel from the actor's possession or custody without claim of right, or by force, fraud, or duress, although under claim of right; or has knowingly acquired the possession or custody of the chattel from a third person who has so taken it from the actor; or having taken it tortiously but in good faith and without force, fraud, or duress, or having knowingly acquired it from one who has so taken it, is about to remove the chattel from the actor's premises; or having received from the actor the custody of the chattel, or having knowingly acquired its possession or custody from one who has so received it, refuses to surrender the chattel or is about to remove it from the actor's premises. (See § 101.)

2. The actor is entitled to the immediate possession of the chattel as against the other. (See § 102.)

3. The recaption is effected promptly after the actor's dispossession of the chattel or after he should know of it. (See § 103.)

4. The actor has first requested the other to return the chattel, or the actor reasonably believes that such a request would be useless, dangerous, or likely to defeat the effective exercise of the privilege. (See § 104.)

5. The force is employed for the purpose of effecting the recaption. (See § 105.)

6. The recaption is effected by the use of force which is no greater than is reasonable and is not intended or likely to cause serious bodily harm or death. (See § 106.)

d.  Effect of actor's mistake.  The actor's reasonable but mistaken belief in the existence of the facts stated in Comment c does not create the privilege unless the mistake was induced by the other. In this respect the privilege stated in this Topic differs from that of self-defense, which, under the rules stated in §§ 63 and 65, exists if the actor reasonably but mistakenly believes that the other is attempting to attack him irrespective of whether the other induced such belief.

REPORTERS NOTES:  The Section has been changed from the first Restatement by stating it affirmatively rather than negatively, to allow for the Caveats.

Note on Caveats:  No cases have been found bearing on the Caveats. In the situations of emergency suggested, it may well be that the court would recognize the privilege.

CROSS REFERENCES:  Digest System Key Numbers:

Assault and Battery 15
Bailment 23
Trover and Conversion 23