Finders Keepers, Losers Weepers—But Who are the Losers?
| Date | 01 January 1995 |
| Published date | 01 January 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb01998.x |
| Author | Catharine MacMillan |
January
19951
Waverley
BC
v Fletcher
enforced, the
Beswick
principle permits the specific performance of a contract to
pay to a third party by virtue of the fact that the contracting party, having suffered
no loss, would be entitled only to nominal damages. This is the position of the
personal representative of T1 to whom will pass the rights of T1 under the mutual
wills agreement, but who will suffer no loss if T2 breaks the agreement.40
Nevertheless, it is difficult to
see
how specific performance could be available
against T2 whilst he is alive in view of the fact that a will ‘is by its very nature and
in its
very
essence a revocable in~trument,’~’ or how it could be possible against
T2
once he has died. It is because the remedy of specific performance is not
available to the personal representative of T1 that the remedy of the implied or
constructive trust
is
made available to the disappointed beneficiaries under the
mutual will of T2, which achieves the same result. It is respectfully submitted,
therefore, that Morritt
J
was quite right to regard it as ‘inconceivable that the court
would order T2 to execute a will in accordance with the agreement at the suit of the
personal representatives
of
T1 or to grant an injunction restraining T2 from
revoking it.
’42
Finders Keepers, Losers Weepers
-
But
Who are the
Losers?
Catharine
MacMillan
*
There is a certain allure to finding things. For most people the finds are accidental,
but for some the finds follow a deliberate search with a metal detector. The pursuit
of
this hobby increasingly brings to light many interesting things: not the least of
which
is
the law on finding. This law is itself full of twists and knots, set with the
occasional gem. It is of interest because it is by no means clear who has the greatest
right to that which
is
found. Many finds are of objects possessed of a particular
cultural or historical significance; there is an increasing number of these finds as a
result of metal detecting.’ There is concern that these objects will be lost to the
public if the right to them is determined at common law. At present, the only clear
‘public’ right is when the find is treasure trove.* In
an
attempt to alleviate
perceived public losses, a Bill was introduced in the House of Lords this year and
has progressed to a first reading
in
the House of
common^.^
The Treasure Bill
seeks
to broaden considerably those finds in which title will vest in the Crown.
The necessity for such a law, to control objects of cultural, historic and artistic
significance, can
be
seen in the recent case of
WuverZey
Borough
Council
v
~~~
40
The personal representative of T1 may, of course, suffer
loss
in
a
different capacity if he is a
beneficiary under the
mutual
will
of
T2,
in which case the remedy of the trust will
be
available.
41
In
re
Estate
of
Heys
119141
P
192,
197
(per
Sir Samuel Evans
P).
See
also
Vynior’s Case
(1610)
8
Rep
82a and
Synge
v
Synge
[1894]
1
QB
466.
42 [1993]
4
All ER
129,
133.
*Lecturer in Law, Queen Mary and Westfield College, University of London.
I
am
indebted
to
my colleague, W.J. Swadling, for his assistance. Any errors are my own.
1
l%e
Ifmes,
2 March
1994.
2 Treasure troves are, of course, Crown property.
3
Introduced in the House of
Lords
by the
Earl
of Perth and introduced in the House of Commons by Mr
P.
Cormack. First reading in the House
of
Commons was held on 29 April
1994.
0
The
Modem
Law
Review Limited
1995
101
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