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Property and the Law of Finders

By: Robin Hickey
Media of Property and the Law of Finders
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Published: 20-01-2010
Format: Hardback
Edition: 1st
Extent: 196
ISBN: 9781841135755
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £65.00
Online price : £58.50
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Loren Epson

About Property and the Law of Finders

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 (particularly the central concept of possession) are explored and understood in the light of countervailing rules of crime and tort, 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.

Table Of Contents

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
Conversion
Negligence
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

Reviews

“Property and the Law of Finders is an informative and interesting book that I am happy to commend to Canadian readers. The book offers the first full-length analysis of the legal position of finders in English law. Hickey's contextualized doctrinal analysis is exemplary.
This well-written, well-organized book...will be appreciated by anyone interested in the foundational concepts of personal property and anyone interested in how to fashion a doctrinal argument.
” –  Jonnette Watson Hamilton, Canadian Business Law Journal Vol 53

“This is a patient and level-heqaded examination of an area of the law sometimes thought to be a jurisprudential shambles. Lacking the ethical underpinnings and riddled with difficult facts and nonsensical distinctions, the law of finders has seemed an obvious candidate for reform. Not so, says Robin Hickey. The law of finders, rightly understood, makes perfect sense. Far from a shambles, the march of case-law has created 'a body of law which is remarkably coherent and achieves practically sensible results'. The argument is well make. Even readers who do not find the author's sanguine conclusion entirely convincing will profit from his careful reading of the case-law and his trenchant comments upon it.
The author's determination to look at his subject in the light of the law as a whole is one of several reasons the book succeeds.
Dr Hickey's book is a sober consideration of the law as a whole, pruning away what is unnecessary but affirming the value of what is left. It is thorough in its coverage. It is forceful in its argument. It is clear in its presentation.
... it will inform and interest its readers. It will also leave them with a renewed confidence in the worth of serious doctrinal scholarship.


” –  R. H. Helmholz, Legal Studies Volume 31, Number 3

“Throughout this useful and insightful analysis, the author explodes some of the myths and misunderstandings apparent in previous judicial and academic considerations of finding cases, and in particular there is a useful demonstration of the pervasive impact of Frederick Pollock (and to a lesser extent, Oliver Wendell Holmes) in the development of a doctrine of possession.
... the text reads well, and there is a high level of structural clarity in the exposition of the main thesis and the relevant sub-theses... Property and the Law of Finders is a clear elucidation and successful analysis of the complex and detailed history and content of the doctrine, and its accompanying policies. It also provides a good example of the dangers of ignoring the particular context of leading cases, as well as demonstrating that the common law can often meander towards coherence and happen across pragmatic social objectives without the catalyst of codification.
” –  Dr Sean Thomas, Conveyancer and Property Lawyer 2011

“Aptly described as a "juridical minefield" (A. Tettenborn, "Gold Discovered at Heathrow Airport" (1982) 41 C.L.J. 242), it is much to Robin Hickey's credit that Property and the Laws of Finders provides such a clear guide to the complex and overlooked common law of finding.
Hickey's work carefully unpicks the confusing interplay between crime, tort and property rules underlying the well-known maxim of "finders keepers".
... a stimulating and well-argued overview of the law of finders.

” –  Emma Waring, The Cambridge Law Journal 2011

“I do not recall ever reading a detailed study of law that does not come down in favour of reform in some form or other; but this is the case here, and the conclusions are as convincing as they are unusual. The author, when presented with what seems like a chaos of sources and concepts, has plucked a few simple threads that run through all of them. This is a lucid and engaging work and, in an area like this, such simplicity must have been very difficult.” –  Neil Maddox, Irish Jurist Vol 45

“Property and the Law of Finders is a book that should be on the shelf of anyone interested in land law or who wishes to find out more about this particular area. Unlike many legal books it is not one that intimidates the reader before even cracking the cover since it is less than 200 pages in length and presents a very approachable proposition. The table of contents is logical in its organization and provides the reader with the ability to jump to a particular area with ease rather than having to trawl through keywords in a bloated index. Alternatively, should one have the time and sufficient interest, reading from cover to cover is something that is very realistic within a relatively small timeframe…Wrapped up with a succinct conclusion the book is organised well and is easy to follow for those within or without the legal profession.
This is an achievement that should be well received by practitioners, students, and the public in general and should be read by anyone who wishes to more properly understand the law of finders and what rights a person may have, no matter what side of the argument they may lie upon.
” –  Matthew Carn, Trust Law International, Volume 24, Number 4, 2010

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