We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
Should the Right to Abandon be Abandoned? An Exposé of the Illusory Nature of the Common Law Divesting Abandonment of Personal Property.
- Authors
MINGZE SUN
- Abstract
The common law doctrine of abandonment, while deceptively simple, is fraught with academic debate. Abandoned personal property either remains the property of the abandoner until someone acquires it, becomes res nullius (ownerless property) or it cannot be abandoned at all. Nevertheless, the general consensus is that the common law recognises divesting abandonment in both criminal law and law of the wreck. This article disputes this consensus and contends that divesting abandonment in the res nullius sense is illusory. Rather, the legal process underlying abandonment is transfer to unknown persons, where the abandoner wishes to divest ownership of the chattel and is indifferent as to who acquires it next. The history of abandonment reveals that the common law has never accepted divesting abandonment in the res nullius sense. Judicial opinions of abandonment are confined to resolving competing proprietary interests between a finder and the occupier of land where the chattel was found or the former owner; whether the abandoned chattel was rendered res nullius is never in issue. An approach built upon the common law doctrine of tenure in land law elucidates the underlying process of abandonment. The non-severable nature of land ownership establishes abandonment as a bilateral transfer. A putative abandoner is unable to relinquish physical possession of a chattel without the consent of the landowner on whose land the chattel is to be abandoned. The abandoner is therefore incapable of unilaterally severing their ties of ownership to the chattel. As ownership must reside in either the abandoner or the finder, res nullius is rendered impossible.
- Subjects
COMMON law; CRIMINAL law; LEGAL process theory; RES nullius; ABANDONMENT of property; PROPERTY
- Publication
Te Mata Koi: Auckland University Law Review, 2021, Vol 27, Issue 1, p336
- ISSN
0067-0510
- Publication type
Article