• Video

Obsolete Property Practices

In Property class, students will learn about cases and customs that are seemingly irrelevant in the modern legal system. Professor Eric Claeys discusses the example of whaling from the 19th century. Although people no longer hunt and capture whales, the customs that arose around this practice still have parallels in complex property claims. https://youtube.com/watch?v=d7iBXmH0J90


In hard cases where you might worry that the person who's the first to possess might not put the resource to its best use, then property doctrine often gives people opportunities to argue, "Well, even though I didn't possess in the most literal sense, even though I didn't acquire in the most literal sense, I should still be regarded as the person who ended up being the proprietor." There was a custom in the 19th century, especially in New England among whalers. When a whaling company fitted a boat and the boat hit a whale, more often than not, the whaling company could not be able to pull the whale right in there and then and bring the whale back. Whaling companies and all of the people who resided in the beach towns up and down New England settled on a custom. The whaling companies would have these specialized marks on their lances, and every company had its own special markings. The whale would wash up onto shore, and then everybody in New England knew you then sent the lance to Provincetown on Cape Cod. In Provincetown, then there'd be a bazaar or a forum, and a whaling company representative would be there. If the lance came back, they'd send representatives to go get the whale, and they'd pay the person who found the whale a 10 or 15% finders fee for the find, and then the company would get back the whale. Then the company would get back the whale. That custom was not consistent with rules of capture. The beach resident who finds the whale ends up as the person who's in control of it. It's on that person's land. Like normally, if capture requires total physical control, the whaling company did not establish total physical control. They didn't lash the whale to the side of the boat. The courts that saw this custom said, "This custom is a perfectly sensible way to carry capture norms and property norms into effect when you're dealing with a special case like a whale." The whaling company is laboring in a moral sense when it fits out a boat, borrows lots of money to buy the boat and the equipment, borrows money to pay the workers, the seamen, and sends the boat out to then spend like six weeks finding a whale and getting it. All that activity is morally productive. All that activity finds the whale and brings the whale into human commerce. The whaling company does something that's kind of sort of some form of capture when it puts a bomb lance that has markings on it. The markings claim possession as much as can be done consistent with the labor. In that sense, labor justifies having these possession rules, but then when real bright-line possession rules don't facilitate labor so well, then courts are willing to relax bright-line possession rules and go to more flexible possession rules to reward the labor. It's important to understand and study these rules when you're dealing with whales just to see how these rules work out in the common law. There are examples like this still in the common law today, and the best example in contemporary litigation would be about boats that sink. If a boat that sinks and a boat comes along trying to salvage the old boat, does the boat need to pull up the sunken boat? Is it enough for the boat to leave a buoy over the sunken boat? Is it enough to have a video camera that does what's called telepossessions and gets a picture of the boat on the surface of the ocean? The same ideas from the whale cases apply forward. Then even when you're dealing in a really sophisticated economy with very formalized property rights with deeds or record systems, these same basic ideas about facilitating search via labor and having clear rights of possession, you can then evaluate recordation systems and deed systems by whether they carry into effect the same policies that the common law is thinking about when it's talking about possession and labor.

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