Up for grabs: a workable system for the unilateral acquisition of chattels.

• Author: Corriel, Matt
• Position: Introduction through I. Insufficient Guidance from the Laws of Unilateral Sequential Acquisition, p. 807-828

This paper is about the everyday occurrence of coming across an object in the world and evaluating whether or not it is up for grabs. My project explores the shared space at the precipice of the laws of finders, abandonment, destruction, and conversion: a space we often inhabit, but wherein our rights in relation to an object are indiscernible ex ante under current law. I propose a system by which actors and courts may evaluate the reasonableness of a person's actions from the moment he or she chooses to acquire a chattel unilaterally. My system derives from the signals chattels convey to us--signals that have everything to do with context and little or nothing to do with value.

INTRODUCTION I. INSUFFICIENT GUIDANCE FROM THE LAWS OF UNILATERAL SEQUENTIAL ACQUISITION A. The Law of Abandonment (Cell 1) B. The Law of Destruction (Cell 2) C. The Law of Finders (Cell 3) D. The Law of Converters (Cell 4) II. SPECTRUMS, NESTING, AND NOTICE: A WORKABLE SOLUTION A. The Nesting Theory Explained 1. Signals Along Two Spectrums: Identification and Uniqueness 2. Nesting 3. Notice 4. Revisiting the Matrix in Nesting Terms a. The "Cell 1 or Cell 3" Confusion Clarified b. The Content of Cell 2 B. The Nesting Theory at Work 1. Fungible Chattels a. Cash, Part 1: Environmental Context (And Then I Found Five Dollars) b. Cash, Part 2: Value (The Million-Dollar Question) c. Mass-Produced Chattels: Scarves and Bottles d. Collections: Handbags and Laptops e. Sentimental Fungibles: A Favorite Sweater f. Fungibles that Identify Owners: Labels; Vehicles and Other Registered Chattels; One Million Dollars in the Shtetl 2. Unique Chattels a. Uniques that Identify Owners: Sensitive Documents (Credit Cards, IDs, and Letters); Applications b. Uniques that Do Not Identify Owners: Art, Crafts, and Jewels; Photographs C. Case Law Revisited CONCLUSION INTRODUCTION

A moment's reflection reveals the perhaps unintuitive fact that our world is populated with more objects than people. (1) With so many objects in the world, it is a marvel that one rarely, if ever, confronts a chattel for which the question "Do I own this?" proves difficult. (2) A more complicated question arises when one encounters a chattel one does not own and asks, "May I own this?" That question addresses the laws and norms of acquisition.

I narrow the scope of this project with two bifurcations, ultimately arriving at an analysis of unilateral sequential acquisition. The first bifurcation distinguishes bilateral and unilateral acquisition. We acquire most chattels bilaterally, in transfers governed by the laws of contract, sale, gift, bailment, and the like. Consent does much, but not all, of the work in bilateral acquisition? In some circumstances, the law permits chattels to be acquired unilaterally, with consent playing less of a role. (4) The difference between bilateral and unilateral acquisition is, in verbs, one of receiving versus taking. This project is confined to unilateral acquisition.

The second bifurcation recognizes that unilaterally acquired chattels are of two kinds: chattels that have been owned before and chattels that have not been owned before. If a chattel has never been owned before, such as a thing newly created or newly captured, then the laws of unilateral first acquisition apply. If a chattel has been owned at some point in its history, then the new owner has acquired it in sequence, and the laws of unilateral sequential acquisition apply. I limit the scope of this project to the latter category: unilateral sequential acquisition.

The substance of this paper involves two further distinctions. First, while a chattel acquired by unilateral sequential acquisition is by definition one that has been owned in the past, it may nonetheless be owned or unowned at the time it is acquired. Second, one can effect unilateral sequential acquisition in one of two ways: legally or wrongfully. These distinctions yield the following matrix, to which I refer throughout the paper:

Figure 1: Unilateral Sequential Acquisition of Chattels Legal Acquisition Wrongful Acquisition Unowned Property 1. Abandonee 2. Wrongful Acquired Repossessor Owned Property Acquired 3. Finder 4. Converter Cells 1 through 4 describe the four possible statuses of an individual effecting 2 unilateral sequential acquisition, (5) numbered in order from the Cells 1 through 4 describe the four possible statuses of an individual effecting a unilateral sequential acquisition, (5) numbered in order from the most secure title (abandonee) to the least secure title (converter). In reverse order: a wrongful acquisition of owned property (Cell 4) is a conversion. (6) Under nemo dat quod non habet, (7) a converter (along with his criminal cousins, the larcenist, the thief, and the robber) has the least secure of all unilaterally and sequentially acquired titles because the converter's title is void or, at best, voidable. (8)

More secure title vests with the legal acquisition of owned property (Cell 3). This is the finding of lost or mislaid property, (9) as governed by the law of finders. A finder has good title against all but the true owner. (10) Therefore, the finder has a greater degree of ownership than the converter, but the true owner's carve-out renders the finder's rights against the world still incomplete.

How can one wrongfully acquire unowned property (Cell 2)? I will argue that the acquisition of destroyed property and of certain kinds of abandoned property is wrongful because such chattels give notice to the acquirer that they ought not to be repossessed. Here I recognize something that scholars have so far neglected (11): although the chattel itself may, as an empirical fact, be abandoned or destroyed, not all abandoned property is rightfully recoverable. No predetermined carve-out attaches to a wrongful repossessor's title the way, for example, a carve-out for true owners attaches to a finder's title. However, case law demonstrates that the wrongful repossessor's interest is not completely secure, because a court may upset his interest. (12)

Finally, the legal unilateral sequential acquisition of unowned property (Cell 1) is the act of claiming abandoned property, and is governed by the law of abandonment. I call one who claims abandoned property an "abandonee."...