In English law the argument is also sometimes used to defend against a claim by a person with possession of a thing, on the grounds that the claimant is not the true owner.
This is unusual, and in most cases the defence of jus tertii is considered ineffective: a claimant with possession is, as regards a wrongdoer, entitled to the full rights of an owner; and this is so even if, as regards the stranger, his title is less than that (The Winkfield [1902] P 42).
Under United States law, jus tertii arguments are generally insufficient to support actions for replevin because they fail to show that possession is more legitimate in the third party than in the present possessor.
A US court would reject Art’s jus tertii argument for replevin because he has failed to show that he has a more legitimate interest in the bike than Burt.
The Idaho Supreme Court held that Gissel was entitled to half of the profits because Idaho did not effectively make the jus tertii argument on behalf of the federal government, “the Gissels, though trespassers and without legal title, which title rests with the Forest Service, still by mere possession have greater rights superior to that of the state.” The jus tertii principle also extends to criminal law.