Defending the Doctrines

policy considerations because the law can already be seen to perform the sorts of policy function that modern jurisdictions require for dealings with lost goods.

[1] As to which, see further below.

[2] Law Reform Committee, Eighteenth Report (Conversion and Detinue), Cmnd 4774 (1971) 48.

[3] W Guthrie (ed), Bell’s Principles of the Law of Scotland 10th edn (Edinburgh, Law Society of Scotland, 1989) para 1291, explaining that ‘The principle on which this rests is public expediency, to avoid fraud, contests, and litigation, together with some slight purpose of adding to the public revenue’.

[4] Ibid para 1287.

[5] Scotland’s possessory regime differs markedly from that operating in England: DL Carey-Miller, Corporeal Moveables in Scots Law (Edinburgh, W Green, 1991) 1.13. Various forms of possession are protected, but where possession creates legal rights, these are always regarded as distinct from, and inferior to, rights of property: Stair Inst.II.i.8. It is possible to acquire an original ownership interest by possession where the thing in question has never been the subject of private property rights (Stair Inst.II.i.33; Bell Prin § 1287) but this occupatio principle does not apply to previously owned things, which belong as we have said to the Crown: Carey-Miller, ibid 2.02, citing Bell Prin, § 1287.

[6] Crown rights to lost and abandoned goods are also preserved by s 78, though as we will see the statute provides further vesting arrangements which have the effect of extinguishing the Crown’s title: s 78(2), (3).

[7] Technically, in Scots law ‘finder who takes possession’ is a tautology: used as a term of art the former implies the latter. Section 67(1) defines ‘a finder’ as ‘any person taking possession of any property without the authority of the owner in circumstances which make it reasonable to infer that the property has been lost or abandoned’.

[8] Section 67(1).

[9] The other alternative candidates for delivery are some person having a right to possession of the find, or some person apparently having the authority to act on behalf of any of those named in the provision: s 67(3). Where the finder chooses to report the find to the owner of the premises, that owner comes under a similar obligation to report to the police, a right-holder or the agent of a right-holder: s 67(4)(a). If the finder reports to the agent of a right-holder, the agent is bound to report to the right-holder or the police: s 67(4)(b). Thus, there is a chain of required reporting, and it is a safe summary to say that the legislation seeks to ensure that finds are reported to one who holds a right in the find or to the police. Carey-Miller calls this ‘the basic obligation’ of finders: Carey-Miller, above n 5 at 2.08. See also KGC Reid, The Law of Property in Scotland (Edinburgh, Butterworths, 1996) para 548.

[10] Section 68(2).

[11] Section 68(3).

[12] See s 69(2). Of course, the chief constable must be satisfied that the claimant is the owner of the thing, or has a right to possession of it: s 69(2). The remainder of this subsection makes provision for delivery of the thing to the owner, including the ability of the chief constable to claim reasonable expenses incurred in the course of managing the find.

[13] Section 70(1)(a) provides that, in the event of any claim for return being made by the owner under s 69, ‘the chief constable may … order the claimant to pay to the chief constable such sum as he may determine as a reward to the finder’.

[14] Section 70(1)(b), which also contains a provision for payment of monetary reward in lieu of transfer. Note that according to s 68(4), the thing need not be offered to the finder if the chief constable considers such disposition inappropriate. No guidance is given in the statute as to the meaning of inappropriate, but Reid gives the example of a packet of drugs, and we might suppose the section would cover any contraband or harmful goods: see KGC Reid, The Law of Property in Scotland (Edinburgh, Butterworths, 1996) para 549. Where the chief constable does consider it inappropriate to transfer the thing to the finder, s 68(4) allows it to be sold. If it is impractical to sell, the chief constable is empowered to make such further disposal as he sees fit.

[15] Section 71(1) provides that such transfer ‘shall … vest the ownership of the property’ in the finder. The same is true of any third party transferee who takes by way of disposition from the chief constable authorised under s 68.

[16] For a discussion of the common law rules operating in US states, see Chapter 3.

[17] Code of Alabama § 35-12-1; California Civil Code§ 2080; United States v Crawford, 239 F3d 1086 (2001) (Court of Appeals for the Ninth Circuit); Montana Code Annotated § 70-5-102; North Dakota Century Code § 60-01-34.

[18] Iowa Code § 556F.16.

[19] California Civil Code § 2080; 765 Illinois Compiled Statutes 1020/30; Iowa Code § 556F.14;
New York Personal Property Law § 254.1.

[20] New Jersey Statutes § 46:30C-3; New York Personal Property Law § 252.

[21] Rhode Island General Laws § 33-21.2-1.

[22] Vermont 27 VSA § 1101.

[23] California Civil Code § 2080. Also 765 Illinois Compiled Statutes 1020/27; Iowa Code § 556F.6.

[24] California Civil Code § 2080.1; New Jersey Statutes § 46:30C-3.

[25] Such as the sheriff for finds outside city limits in California: California Civil Code § 2080.1.

[26] 765 Illinois Compiled Statutes 1020/27.

[27] In Michigan there is a very detailed system turning on factual classification of goods rather than a nominated value: Michigan Compiled Laws § 434.22.

[28] California Civil Code § 2080.1. And 765 Illinois Compiled Statutes 1020/27.

[29] 765 Illinois Compiled Statutes 1020/27.

[30] 765 Illinois Compiled Statutes 1020/28.

[31] 765 Illinois Compiled Statutes 1020/27; Iowa Code § 556F.8.

[32] Oregon Revised Statutes § 98.005(1).

[33] Florida Statute § 705.103.

[34] But not to mislaid goods: see Chapter 3 for consideration of US state common law.

[35] 765 Illinois Compiled Statutes 1020/28; Iowa Code § 556F.11; New York Personal Property Law § 257.1; North Dakota Century Code § 60-01-34; Oregon Revised Statutes § 98.005(2); Rhode Island General Laws § 33-21.2-2; Wisconsin Statute § 170.10.

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