Finders Keepers - the Relevance of the Proverb Today - Essay Example

“Finders Keepers How accurately does this old adage reflect the law in relation to lost items and found on or in English land today? Introduction “Finders Keepers” is a maxim that has been applied to mean that an individual can take possession of an item he/she happens to find abandoned (Collier, 2006 p14). Thus according to this maxim, any person who comes across an item that has no owner or that has been abandoned by its owner, becomes the new owner of the item by taking its full possession. This maxim has its origin in the ancient Roman laws, which provided that whoever finds an item that has no owner can make a claim on that item (Clarke & Greer, 2012 p56). However, this maxim has been modified over the centuries to suit the interest of legal and ethical standards. The modifications have notably been on the area of determining when exactly an item can be defined as abandoned. This is because, lack of clear definition of this concept can accelerate the disputes involved in this maxim, since the real owner and the new owner can be engaged in a dispute over who has the legal mandate to make a claim on the item based on time. Most significant under this concept is the determination of the legal procedure applicable in claiming and taking the possession of an abandoned item. This maxim had been applied under the English law for many years. However, various modifications and changes have been made on this concept, to suit the legal definition of ownership and possession, with a view to allowing the rightful owner take possession of any property (Chambliss, 2011 p20). Proposal, Methodology and Strategy In analyzing how accurately this old adage reflect the law in relation to items lost and found on or in English land today, the analysis will take the form of a discussion, with a focus on the initial application of this adage in English laws, the changes and modifications that have been made over time in this concept and the current status of the concept as reflected by the English law. To achieve this, the discussion will apply various methods such as case analysis, focusing on several cases that have been presented to the English courts regarding this concept and the rulings that have been made. The other method that will be applied to analyze how well the adage is reflected in the current English laws is the evaluation of various resources such as books, journals and websites that give information relevant to this concept, with a keen interest on assessing how the concept can be interpreted and applied differently. Finally, the analysis will apply the argument strategy, where various aspects regarding the concept of “Finders Keepers” will be analyzed, assessing how best the principles under this concept have been applied, evaluating the disparity in its application under different circumstances. Finally, a comprehensive conclusion will be given, touching on the significant aspects of the concepts and displaying how the adage is applied under today’s English law in relation to lost and found items. Analysis, Application and Presentation Possession is the most significant concept under the “Finders Keepers” concept. The concept of possession determines who has the right to claim an item. It defines who has the legal right to sue for interference with a possession claimed by an individual (Collier, 2006 p23). Thus, for an individual to legally possess an item, they must qualify the physical and the mental control concepts. Under the physical control concept of possession, an individual is required to have a physical dominion over the item he/she attaches a claim (Card & Murdoch, 2011 p36). Secondly, the individual is required to have mental control, which displays the intent to own and retain the possession of an item. Therefore, to lay a claim as the rightful possessor of any item, an individual has to display the two forms of control (Collier, 2006 p29). These are the concepts that bring about the discussion regarding the “Finders Keepers” adage. When an individual is exercising both physical and mental control of an item, he/she is the only one mandated to attach a claim on the ownership of the item. However, when an item is found on or in land, where there is no definitive physical and mental control of the item, the possession can be conferred on the finder of the item (Spalding, 2008 p40). There are various principles that apply before the conferment of the item to an individual who finds it on or in a piece of land that he/she does not own. Therefore, to take possession and lay a claim of an item that an individual finds, the individual has to meet several requirements. It is relevant to assess why the right of ownership can be conferred on the finder of an item, which they found on or in land that they do not own. First, the finders are conferred the right of possession and ownership, to reward them for bring an item back to social use (Wright, 2008 p258). Considering that an individual has found an item that has been laying idle and abandoned, and brought it back to use for social benefits, he/she deserve to be rewarded with the possession rights. Secondly, a finder can be rewarded with the right to own an item, since it is necessary to confer a title to any valuable item, for the sake of eliminating disputes of title (Chambliss, 2011 p32). Therefore, if the item does not have a true owner or is not claimed by the true owner, then it is only justified to confer its possession to the finder, for the sake of giving it ownership title. Finally, it is considered that the finder of an item is inferior to the true owner, but superior to the subsequent claimants (Daintith, 2010 p9). Thus, whenever the true owner of an item cannot be identified, the ownership title should be conferred to the finder, to legally place him/her in a superior position of ownership, than the subsequent claimants on the same item. Therefore, the law guiding ownership of lost and found property considers time as central to the process, since whoever finds and subsequently lays a claim on an item will be conferred the possession rights, unless the true owner is identified (Meisel & Cook, 2000 p69). This can be emphasized better by the analysis of various cases that have been presented to English courts based on the principle of “Finders Keepers” maxim. Parker v British Airways Board is one such case where Parker, was at Heathrow Airport On November 15, 1978, in the executive international lounge where he found a gold bracelet lying on the floor (Mcfarlane, Hopkins & Nield, 2012 p75). He picked the bracelet but due to issues of time, he could not clear with the customs and reach the security personnel, so he handed over the bracelet to one of the workers in the airport, with instructions to pass the bracelet over to the lost items department of the airport. He informed the worker that he should be contacted in case the bracelet was not claimed by the rightful owner (Heaton, R., & De Than, 2010 p25). However, after a period of time, Parker learnt that the bracelet had not been claimed by the true owner and he had not been notified to claim it. The defendant sold the bracelet and kept the proceeds from the sale, which amounted to $850 (Mcfarlane, Hopkins & Nield, 2012 p75). This angered the plaintiff who sued the defendant. The court ruled in favor of the plaintiff and he was granted $850 as damages and an interest of $50 (Mcfarlane, Hopkins & Nield, 2012 p76). However, the ruling of this case has remained controversial, since the judgment applied the English common law, which stated that the right of possession is conferred to the finder of any chattel which has been lost and found (Salem, 180). The court failed to consider that neither the plaintiff nor the defendant laid a claim on the bracelet based on true ownership or deriving title from the true owner of the bracelet. There are two issues that arise from this case. The first issue regards the determination of who has a better claim to the property. The second issue has to do with the central theme of time under the concept of “Finders Keepers” maxim, which in this case is to determine who was in the first possession of the bracelet before it was found (Collier, 2006 p30). While the principle of better claim favors the defendant, since the bracelet was found within the premises of the defendant, the second principle of time favors the plaintiff, since he was the first person to find the lost bracelet in the executive lounge, which he later handed over to the possession of the defendant (Lanham, 2006 p58). The issue of trespass does not arise in this case, since Parker was within the premises of the defendant lawfully. Therefore, a keen analysis of this case indicates that the principle of time is central in the concept of “Finders Keepers”, since the plaintiff was awarded the right to possess the bracelet, due to the fact that he was the first person to find the bracelet. This serves to emphasize the significance of the principle of time, where the claim of the first possessor, other than the true owner is superior (Chambliss, 2011 p38). However, there are confusing concepts under this case. First, defendant held that the occupier of the premise has rights over all chattels in the premises, regardless of whether the occupier knows of their existence. However, the provisions of the law hold that the defendant must have had prior rights to the chattel, before it was found by the plaintiff (Meisel & Cook, 2000 p51). Considering that the defendant did not indicate any intention to control the chattel, before it was found by the plaintiff, then the right of possession was conferred on the finder (Clarke & Greer, 2012 p82). This serves as a basis of the English law on lost and found items until present day. The second case to analyze is the case Waverley Borough Council v Fletcher. Under this case, the distinction in legal holding between chattels on land and chattels in land is defined. While chattels on land refers to the items found on the surface of the land, which are not attached to it, chattels in land refers to items found attached to the land or under the land surface (Smith, 2008 p57). Under this case, Ian Fletcher, a visitor at a park owned and managed by Waverley Borough Council, dug a gold brooch, which became the subject of dispute. In the subsequent court proceedings, the ruling under the Parker v British Airways Board case were revisited, with a view to determine who had the right to lay a claim on the gold brooch. The high court applied the English law of possession in determining this case, which was consistent with the previous ruling of the Parker v British Airways Board case. The court held that the possession was to be rightfully conferred to the finder, since the owner of the land has a right to all items attached to the land or naturally found there, but not over abandoned chattels (Chambliss, 2011 p40). The ruling further emphasized on the significance of both physical and mental control, by asserting that Waverley Borough Council was not in full physical control of the park, since it did not physically occupy the land, but rather left it open for public use (Meisel & Cook, 2000 p). Additionally, the concept of mental control was revisited, with the court arguing that Waverley Borough Council had not demonstrated the intention to control the property and everything that was in it (Clarke & Greer, 2012 p80). However, when Waverley Borough Council appealed to the court of appeal regarding the ruling of the high court, the court of appeal held a different opinion that has become another basis of law in relation to items lost and found English land today. The court of appeal held two basis of disqualifying the ruling of the high court. First, items found in land or those attached to the land are an integral part of the land. Therefore, the owner of the land has a superior claim of possession over the finder (Monaghan, 2012 p74). On the contrary, the court held that the finder has a superior possession claim on items found abandoned on the surface of the land (Heaton, R., & De Than, 2010 p18). Secondly, the court of appeal defined trespass afresh, by clarifying that exceeding the terms of lawful allowance to visit land or property amounted to trespass (Lanham, 2006 p70). Therefore, in this case, Fletcher was found to have been in trespass, by exceeding the terms allowed in the visitation of the park; recreation and entertainment, to engage in digging and detecting treasures, which was not the primary objective of the park visit (Daintith, 2010 p12). Consequently, this ruling suppressed the “Finders Keepers” maxim, by granting the owner of the land a superior claim of possession on chattels in or attached to the land, regardless of whether the owner exercised control or not (Lanham, 2006 p73). Therefore, for the first time, the recommendations made in the law Reform Committee 1971 took effect, which required a clear clarification on who, between the finder and the occupier had a better claim to lost and abandoned property (Card & Murdoch, 2011 p33). In clarifying this issue, the court of appeal indicated that the finder has a better claim on chattels found lost or abandoned on the surface of the land, while the occupier has a better claim of chattels found in or attached to the land (Chambliss, 2011 p45). This has since become the basis of the law in relation to items lost and found on or in English land today, overriding the provisions of the “Finders Keepers” maxim. The last case analysis is that of Hibbert v. McKiernan, the appellant had trespassed into a golf club and collected golf balls that he found lost within the premises of the club (Spalding, 2008 p44). The ruling in this case applied the principles of control and trespass. The Golf club had taken necessary measures of physically controlling its premises by fencing it off. Additionally, the club had exercised mental control, through showing an intention to control the premises by hiring security officers to guard the premises as well as constructing a security fence (Bakken, 2012 p174). Therefore, the appellant had trespassed into the property and exceeded the terms of his visit by collecting lost golf balls. Conclusion The old adage of “Finders Keepers” is still reflected in relation to the law of items lost and found on or in English land today. However, the accuracy of the adage has been reduced by various changes and modifications applied on this concept. Through various court rulings, the accuracy of the adage has been weakened. Therefore, the adage only applies after qualifying several provisions, making the finder’s claim on a chattel found on or in land no longer superior to that of the true owner or occupier. Thus, under law in relation to items lost and found on or in English land today, the finder’s claim of possession is only superior where the true owner or the occupier does not exercise both mental and physical control over the lost chattel. However, the accuracy of the adage has not been fully eliminated, since the finder has a better claim on chattels found on land, with an exception to a claim made by the true owner on the same, which reigns supreme. References Bakken, G. (2012). Finders Keepers? How the Law of Capture Shaped the World Oil Industry. American Historical Review, 117.1, p174-175. Card, R. & Murdoch, J. (2011). Real estate management law. Oxford, Oxford University Press. Chambliss, W. J. (2011). Courts, law, and justice. Los Angeles, Sage Reference. Clarke, S., & Greer, S. (2012). Land law directions. Oxford, Oxford University Press. Collier, C. (2006). Finders & keepers. London, Orion Books. Daintith, T. (2010). Finders keepers?: how the law of capture shaped the world oil industry. Washington, DC, RFF Press. Heaton, R., & De Than, C. (2010). Criminal law. Oxford, Oxford University Press. Lanham, D. (2006). Criminal laws in Australia. Annandale, N.S.W., The Federation Press. Mcfarlane, B., Hopkins, N. S., & Nield, S. (2012). Land law: text, cases, and materials. Oxford, U.K., Oxford University Press. Meisel, F., & Cook, P. (2000). Property and Protection Essays in Honour of Brian W. Harvey. Oxford, Hart Pub. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=285419. Monaghan, N. (2012). Criminal law. Oxford, Oxford University Press. Smith, R. J. (2008). Property law. Harlow, Longman Spalding, A. (2008). Finders keepers. Toronto, Dundurn Press. Wright, B. (2008). Keepers, Weepers, or No Finders at All: The Effect of International Trends on the Exercise of U.S. Jurisdiction and Substantive Law in the Salvage of Historic Wrecks. Tulane Maritime Law Journal, 33.1, p285-312. Salem, Y. (2005). “Finders keepers? The repatriation of Art. Journal of Technology Law & Policy, 10.1, p173-193. 21p Read More