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Property and the Law of Finders

ISBN13: 9781841135755
Published: January 2010
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00

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Are finders keepers? This most simple of questions has long evaded a satisfactory legal answer. Generally it seems to have been accepted that a finder acquires a property right in the object of her find and can protect it from subsequent interference, but even this turns out to be the baldest statement of principle, resting on obscure and confused authority.

This first full-length treatment of finders sets them in their legal-historical context, and discovers a fascinating area of law lying at the crossroads of crime, obligations, and property. That on the same facts a finder might be thief, bailee, and/or property right holder has clouded our conceptual analysis, and prevented us from stating simply our rules about finding. Nonetheless, when the applicable doctrines and policies of our property law are explored, and particularly the central concept of possession, we can argue confidently that, despite centuries of doubt and confusion, English law has succeeded in producing a body of law that is theoretically and practically coherent.

Property and the Law of Finders makes this argument, and will appeal to anyone specifically interested in the law of personal property, and also to those with broader concerns about the evolution of common law concepts and their ability to yield workable, practical solutions.

Commercial Law, Criminal Law
Introduction 1. The Legal Context of Armory
Recovery of Lost Goods at Common Law
Development of Forms of Action at Common Law Detinue
The Fiction of Finding Trover and Conversion
Finding as a Justificatory Excuse: 'The Law of Charity' Larceny by Finding Armory v Delamirie

2. The Possessor of Land Cases
The Beginning: Right Follows Liability
The Innovation: Right Follows Possession
South Staffordshire Water Co v Sharman
The Distraction: Evolution of the In/On Land Distinction
Parker v British Airways Board
The Mistake: Right Follows Circumstance of Find
The Answer: Evidentiary Concessions to Proof of Possession

3. The Significance of the Facts of Loss
The Relevance of Loss and Mislaying
US State Common Law: Categorisation Designates Right
English Common Law: Classification Influences Liability
The Relevance of Hiding
The Relevance of Abandonment
The Significance of 'Finding'

4. The Obligations of a Finder
Specifically Imposed Obligations
Absence of Direct Authority
Loser of Goods is a Background Consideration
Honesty of Litigants
Uncritical Reliance on Bailment
The Finder as Bailee
Liability Under General Duties
Unjust Enrichment
Obligations and Policy

5. Possession and the Rights of Finders
Possession as a Source of Property Rights at Common Law
Possession as the Basis of Trover
Possession as the Basis of Ejectment
From Remedy to Right
The Extent of the Finder's Right
The Estoppel Argument
Cases of Divested Rights
The Effect of a Subsequent Conversion
Finders as (Relative) Owners

6. Qualifications on the Acquisition of Right Dishonesty Qualifying the Dishonest Finder's Rights Recognising a Better Right in a Third Party Trespass to Land Employment Relationships Public and Private Locations A Pervasive Right

7. Defending the Doctrines
Lost Property Regulation in Other Jurisdictions
Understanding English Law: Property, Tort and Crime and the Pursuit of Sensible Policy Aims
Theft and Entailed Behaviour
Evaluating English Law
Epilogue: The Terminology of Possession and Property

Series: Inner Temple Book Prize 2011

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