Definition
The act of resuming possession of one's own property, person, or dependent — such as goods, a spouse, or a child — from another who has taken or holds them without legal right. Retaking is a self-help remedy: it allows the rightful owner or custodian to recover what belongs to them by their own action rather than through judicial process, provided the retaking is accomplished without breach of the peace.
Common Confusion
Retaking and recaption are often used interchangeably in historical sources, but some authorities treat recaption as the broader or more formal doctrine of which retaking is a practical expression. Rescue, though listed alongside retaking in Bouvier's, refers to interference with lawful custody — the opposite of retaking's premise, which requires that the original taking was without right. Researchers should not conflate the two.
Why It Matters in Research
Retaking is closely bound to the doctrine of recaption and sits within a broader cluster of common-law self-help rights that have been substantially narrowed or displaced by modern statutes and procedural requirements. Researchers working in historical sources will find retaking treated as an unqualified right of the dispossessed owner; modern sources treat the doctrine with significant caveats, particularly the breach-of-the-peace limitation, which courts have used to restrict when and how retaking may be exercised without civil or criminal liability.
In property and secured transactions research, the right of retaking is relevant to creditor self-help repossession under Article 9 of the UCC, which codifies a qualified right to repossess collateral without judicial process — a modern statutory descendant of the common-law retaking doctrine. Researchers should not assume that historical treatments of retaking map cleanly onto modern repossession law; the standards and consequences differ substantially.
In family law contexts, Bouvier's inclusion of wife and child alongside goods reflects a now-obsolete conception of the family as subject to proprietary rights. Historical sources treating the retaking of a wife or child as analogous to the retaking of chattels should be read with care; modern family law governs custody and parental rights through entirely distinct frameworks with no meaningful connection to self-help retaking.
The term appears infrequently in modern legal writing as a standalone doctrine. Researchers are more likely to encounter it embedded in discussions of recaption, self-help remedies, repossession, or rescue, rather than as a primary heading.
Historical Dictionary Support
Black's Law Dictionary (both editions) and Bouvier's Law Dictionary are in agreement on the core definition: retaking is the recovery of one's goods from one who has taken possession without right. Bouvier's is the most expansive of the three, explicitly extending the doctrine beyond goods to wife, child, and other persons over whom the retaker held legal dominion — a reflection of the broader common-law conception of a householder's rights. Black's formulations are narrower and more property-focused, though neither edition meaningfully departs from the underlying principle.
None of the historical sources address the breach-of-the-peace limitation with any depth, nor do they flag the displacement of common-law retaking by statutory schemes — gaps that are significant for modern researchers. The historical entries treat retaking as a settled, largely unqualified right, which overstates its standing in contemporary law.
Bouvier's cross-references to RECAPTION and RESCUE are useful navigational pointers. Recaption is the more doctrinally developed treatment of the same underlying right; rescue, in historical usage, refers to the forcible recovery of a person or property already in legal custody, which is a distinct and generally unlawful act.
Jurisdictional Note
The common-law right of retaking survives in most U.S. jurisdictions in some form but is heavily conditioned by the breach-of-the-peace rule and, in the personal property context, largely governed by UCC Article 9 for secured transactions. Some states have further restricted self-help remedies by statute.