Journal of Property, Planning and Environmental Law, 2020
Waste, marginal property practices, and the Circular Economy Purpose An examination of the effect... more Waste, marginal property practices, and the Circular Economy Purpose An examination of the effect of circular economy's ending of waste on marginal property practices. Design/methodology/approach Theoretical legal analysis. Findings The current legalistic conception of waste depends on control and value. The indeterminate status of waste as goods at the margins of consumption attracts attention from legal regimes. This process is evidenced by a commercialised treatment of goods at the margins of consumption, limiting the scope of radical marginal property practices such as freeganism (taking goods abandoned by others, in order to use such goods) Social implications The circular economy aims to end waste. Restriction, and ultimately elimination, of marginal property practices is necessary for circular economy. Freegans will be limited to acting in a "challenge" role, identifying breaches of commercial commodification processes. Control over the use (including disposal) of goods reduces the spaces available for marginal property practices, which in turn raises problematic normative implications for "normal" consumption practices involving waste. Originality/value This is the first examination of the impact of circular economy on freeganism. It is also the first sustained application of marginal property theory (van der Walt, 2009) in a legal analysis of circular economy and waste.
Routledge Handbook on Waste, Resources and the Circular Economy
The legal aspects of circular economy have until recently been subject to only minimal analysis. ... more The legal aspects of circular economy have until recently been subject to only minimal analysis. This is partly due to the absence of specific legal frameworks; what does exist has been exhortatory and ultimately unenforceable. Moves towards imposing legal obligations are growing, and thus the need for deep and broad legal analysis becomes imperative. This chapter outlines some of the legal issues that will need to be considered in any moves towards circular economy. There is a focus on the importance of property and ownership, as well as a critical examination of the limited extent of academic work in this area. The need to reduce and remove potential contradictions between different legal regimes is highlighted.
This paper examines how circular economics addresses and uses smart
technology, and demonstrates ... more This paper examines how circular economics addresses and uses smart technology, and demonstrates the lack of consideration given to ownership issues in such contexts. The extent to which circular economic ideals require controlling goods down-stream will be exposed. Following this is an analysis of the ramifications of smart technology, illustrated with recent examples of control through smart technology. This leads to a critique of the US Supreme Court’s recent decision on patent exhaustion Impression Products v Lexmark alongside the CJEU’s decision in UsedSoft on copyright, addressing implications for contracting practices. The article concludes by urging close comparison of claimed benefits arising from circular economic approaches to smart technology with the potential costs of control (or lack thereof) of novel technologies.
A circular economy reuses waste products to minimise the loss of materials. This article analyses... more A circular economy reuses waste products to minimise the loss of materials. This article analyses circular economy, and outlines potential research avenues. A distinction between sharing economies and circular economies is suggested, and English law’s capacity to deal with waste in accordance with circular economic ideas is considered.
This article notes that English courts deal with voidable title conflicts by attempting to find a... more This article notes that English courts deal with voidable title conflicts by attempting to find a contract between the original owner of goods and the rogue whose actions made the contract void or voidable. This position has become entrenched following the decision of the House of Lords in Shogun Finance v. Hudson. A comparative analysis with the law of the United States of America indicates a superior alternative: there is no need for a contract between the original owner and the rogue.
The Factors Act 1823 was the first major statutory exception to the rule nemo dat quod non habet ... more The Factors Act 1823 was the first major statutory exception to the rule nemo dat quod non habet in English law. The limited existing analysis of this Act suggests that it came about through the lobbying actions of merchants. This article demonstrates that the Factors Act 1823 was actually a compromise, and was considered a mere stepping-stone for further reform. The additional role of government policy in the development of the Factors Act 1825 is also demonstrated.
If a seller fails to deliver the correct quantity, the buyer may reject the goods in accordance w... more If a seller fails to deliver the correct quantity, the buyer may reject the goods in accordance with the Sale of Goods Act 1979, section 30(1). The nature of this right to reject is unclear, and whether breach by short delivery will suffice to terminate the contract is also unclear. The purpose of this paper is to clarify this area of law. The paper suggests that breach by short delivery does terminate the contract. It suggests that the right to cure cannot provide an entirely satisfactory response for victims of short delivery. The paper also proposes a reform of the Sale of Goods Act 1979 to take this into account.
This article considers the extent to which American law, represented by Article 7 of the Uniform ... more This article considers the extent to which American law, represented by Article 7 of the Uniform Commercial Code, protects innocent transferees of documents of title. Under English law, title conflicts involving documents of title are governed by the same provisions as those concerning goods. The American law distinguishes title conflicts involving documents of title from those involving goods, which provides a clearer and more coherent system of law. It is submitted the American law provides a suitable alternative system for commercial transactions involving documents of title, compared to English law.
Sale of goods and intellectual property are necessarily connected. Intellectual property rights (... more Sale of goods and intellectual property are necessarily connected. Intellectual property rights (IPRs), such as copyright, patents, trade marks and design rights, can be discussed and analysed as a coherent whole. However, the impact of the connection between sales of goods and IPRs has been somewhat ignored from both sides (sales, and intellectual property). In the digital era, questions concerning the interrelationship of sale of goods law and intellectual property law have become particularly problematic. There are difficulties in determining the rights of purchasers of goods, due to the structure of the law on sale and doctrinal complexity in intellectual property law. In this article, the effect of potential growth in embedded and nano-technologies, as well as the impact of IPR pirates (those who take without authority), trolls (those who acquire IPRs purely for their financial re-disposition value), and tyrants (those who misuse the considerable strength of IPRs to prevent usage) will be analysed. It will be suggested that a reliance on the usual, pragmatic methods of solving the identified problems will be insufficient to deal with the growth of integrated goods.
The Sale of Goods Act 1979, section 12 imposes obligations on sellers. Sellers must have the righ... more The Sale of Goods Act 1979, section 12 imposes obligations on sellers. Sellers must have the right to sell the goods, and they impliedly warranty that the buyer will enjoy quiet possession. Actions by intellectual property rights holders can lead to liability for sellers for breach of the section 12 obligations. Recent technological change has brought about the development of goods that operate in conjunction with software. The extent of the relationship between goods and software varies, but the level of integration may be sufficient to consider the software ‘embedded’ within goods. To what extent can the holders of intellectual property rights in software extend their interest into goods with embedded software? Can a third-party sub-purchaser escape the reach of the intellectual property rights? A reform proposal is made that would enable sub-purchasers to avoid the problems of pre-existing intellectual property rights in goods with embedded software.
This article examines the development of the law on security over personal property and its inter... more This article examines the development of the law on security over personal property and its interaction with the law on mortgages over real property. It demonstrates that the usual understand of the rules on fixtures and fittings must be re-examined in light of the history.
The history of the development of the implied terms on short delivery is a complex story of judic... more The history of the development of the implied terms on short delivery is a complex story of judicial and academic ignorance of law and facts. Sir Mackenzie Chalmers' statutory formulation of the right to correct delivery was the same as that provided in Judah Benjamin's 1868 work on sales. However, Benjamin's formulation was flawed, which led to a highly unsatisfactory rule of law. This article considers the history of the case law on short delivery, leading up to the 1893 codification. The operation of the statutory rule further illustrates the depth of confusion which remained following codification. A comparison with the history of short delivery in the United States demonstrates that the confusion within the English system could easily have been avoided.
This article considers the lack of protection granted to purchasers of goods encumbered with rete... more This article considers the lack of protection granted to purchasers of goods encumbered with retention of title clauses. In chains of transactions, disponees are only able to acquire such title that their immediate disponor had. The difficulties involved in determining the extent to which the title is encumbered is magnified as chains of transactions extend. English law fails to fully acknowledge the vital role of authorisation in cases involving pre-existing but unknowable encumbrances. The failures of English law can be usefully contrasted with the situation in the United States of America. Under Article 9 of the Uniform Commercial Code, a security interest can pass with the goods upon disposition, yet if the disposition is authorised, the security interest will merely attach to the proceeds of the disposition. The final purchaser will be able to retain the goods. Although prima facie similar to English law, the American case-law demonstrates that authorisation plays a substantially more influential role, and reduces the risk to purchasers in comparison with English law.
This article considers some of the difficulties arising from how English law conceptualises certa... more This article considers some of the difficulties arising from how English law conceptualises certain types of security interests over Intellectual Property Rights (IPRs), and the problems arising from dual registration systems. This analysis is informed by a critical comparison of the current English doctrine, alongside the US system and the proposals from UNCITRAL. It is shown that no single system is ideal for regulating a world of integrated goods (whereby goods and software are inextricably interconnected), but aspects of different systems can be useful for dealing with the complex but necessary relationship between tangibles and IPRs. It will be further argued that reform of security interest law resulting in a single register for security interests which treats goods and IPRs as analogous for security purposes, is necessary. Recommendations to deal with problems concerning purchase money security interests, and third party purchasers in potential conflicts with IPRs holders, are also put forward.
This article notes that English courts deal with voidable title conflicts by attempting to find w... more This article notes that English courts deal with voidable title conflicts by attempting to find whether there is a contract between the original owner of goods and the rogue whose actions made such contract void or voidable. This position has become entrenched following the decision of the House of Lords in Shogun Finance v. Hudson. A comparative analysis with the law of the United States indicates a superior alternative: there is no need for a contract between the original owner and the rogue.
Journal of Property, Planning and Environmental Law, 2020
Waste, marginal property practices, and the Circular Economy Purpose An examination of the effect... more Waste, marginal property practices, and the Circular Economy Purpose An examination of the effect of circular economy's ending of waste on marginal property practices. Design/methodology/approach Theoretical legal analysis. Findings The current legalistic conception of waste depends on control and value. The indeterminate status of waste as goods at the margins of consumption attracts attention from legal regimes. This process is evidenced by a commercialised treatment of goods at the margins of consumption, limiting the scope of radical marginal property practices such as freeganism (taking goods abandoned by others, in order to use such goods) Social implications The circular economy aims to end waste. Restriction, and ultimately elimination, of marginal property practices is necessary for circular economy. Freegans will be limited to acting in a "challenge" role, identifying breaches of commercial commodification processes. Control over the use (including disposal) of goods reduces the spaces available for marginal property practices, which in turn raises problematic normative implications for "normal" consumption practices involving waste. Originality/value This is the first examination of the impact of circular economy on freeganism. It is also the first sustained application of marginal property theory (van der Walt, 2009) in a legal analysis of circular economy and waste.
Routledge Handbook on Waste, Resources and the Circular Economy
The legal aspects of circular economy have until recently been subject to only minimal analysis. ... more The legal aspects of circular economy have until recently been subject to only minimal analysis. This is partly due to the absence of specific legal frameworks; what does exist has been exhortatory and ultimately unenforceable. Moves towards imposing legal obligations are growing, and thus the need for deep and broad legal analysis becomes imperative. This chapter outlines some of the legal issues that will need to be considered in any moves towards circular economy. There is a focus on the importance of property and ownership, as well as a critical examination of the limited extent of academic work in this area. The need to reduce and remove potential contradictions between different legal regimes is highlighted.
This paper examines how circular economics addresses and uses smart
technology, and demonstrates ... more This paper examines how circular economics addresses and uses smart technology, and demonstrates the lack of consideration given to ownership issues in such contexts. The extent to which circular economic ideals require controlling goods down-stream will be exposed. Following this is an analysis of the ramifications of smart technology, illustrated with recent examples of control through smart technology. This leads to a critique of the US Supreme Court’s recent decision on patent exhaustion Impression Products v Lexmark alongside the CJEU’s decision in UsedSoft on copyright, addressing implications for contracting practices. The article concludes by urging close comparison of claimed benefits arising from circular economic approaches to smart technology with the potential costs of control (or lack thereof) of novel technologies.
A circular economy reuses waste products to minimise the loss of materials. This article analyses... more A circular economy reuses waste products to minimise the loss of materials. This article analyses circular economy, and outlines potential research avenues. A distinction between sharing economies and circular economies is suggested, and English law’s capacity to deal with waste in accordance with circular economic ideas is considered.
This article notes that English courts deal with voidable title conflicts by attempting to find a... more This article notes that English courts deal with voidable title conflicts by attempting to find a contract between the original owner of goods and the rogue whose actions made the contract void or voidable. This position has become entrenched following the decision of the House of Lords in Shogun Finance v. Hudson. A comparative analysis with the law of the United States of America indicates a superior alternative: there is no need for a contract between the original owner and the rogue.
The Factors Act 1823 was the first major statutory exception to the rule nemo dat quod non habet ... more The Factors Act 1823 was the first major statutory exception to the rule nemo dat quod non habet in English law. The limited existing analysis of this Act suggests that it came about through the lobbying actions of merchants. This article demonstrates that the Factors Act 1823 was actually a compromise, and was considered a mere stepping-stone for further reform. The additional role of government policy in the development of the Factors Act 1825 is also demonstrated.
If a seller fails to deliver the correct quantity, the buyer may reject the goods in accordance w... more If a seller fails to deliver the correct quantity, the buyer may reject the goods in accordance with the Sale of Goods Act 1979, section 30(1). The nature of this right to reject is unclear, and whether breach by short delivery will suffice to terminate the contract is also unclear. The purpose of this paper is to clarify this area of law. The paper suggests that breach by short delivery does terminate the contract. It suggests that the right to cure cannot provide an entirely satisfactory response for victims of short delivery. The paper also proposes a reform of the Sale of Goods Act 1979 to take this into account.
This article considers the extent to which American law, represented by Article 7 of the Uniform ... more This article considers the extent to which American law, represented by Article 7 of the Uniform Commercial Code, protects innocent transferees of documents of title. Under English law, title conflicts involving documents of title are governed by the same provisions as those concerning goods. The American law distinguishes title conflicts involving documents of title from those involving goods, which provides a clearer and more coherent system of law. It is submitted the American law provides a suitable alternative system for commercial transactions involving documents of title, compared to English law.
Sale of goods and intellectual property are necessarily connected. Intellectual property rights (... more Sale of goods and intellectual property are necessarily connected. Intellectual property rights (IPRs), such as copyright, patents, trade marks and design rights, can be discussed and analysed as a coherent whole. However, the impact of the connection between sales of goods and IPRs has been somewhat ignored from both sides (sales, and intellectual property). In the digital era, questions concerning the interrelationship of sale of goods law and intellectual property law have become particularly problematic. There are difficulties in determining the rights of purchasers of goods, due to the structure of the law on sale and doctrinal complexity in intellectual property law. In this article, the effect of potential growth in embedded and nano-technologies, as well as the impact of IPR pirates (those who take without authority), trolls (those who acquire IPRs purely for their financial re-disposition value), and tyrants (those who misuse the considerable strength of IPRs to prevent usage) will be analysed. It will be suggested that a reliance on the usual, pragmatic methods of solving the identified problems will be insufficient to deal with the growth of integrated goods.
The Sale of Goods Act 1979, section 12 imposes obligations on sellers. Sellers must have the righ... more The Sale of Goods Act 1979, section 12 imposes obligations on sellers. Sellers must have the right to sell the goods, and they impliedly warranty that the buyer will enjoy quiet possession. Actions by intellectual property rights holders can lead to liability for sellers for breach of the section 12 obligations. Recent technological change has brought about the development of goods that operate in conjunction with software. The extent of the relationship between goods and software varies, but the level of integration may be sufficient to consider the software ‘embedded’ within goods. To what extent can the holders of intellectual property rights in software extend their interest into goods with embedded software? Can a third-party sub-purchaser escape the reach of the intellectual property rights? A reform proposal is made that would enable sub-purchasers to avoid the problems of pre-existing intellectual property rights in goods with embedded software.
This article examines the development of the law on security over personal property and its inter... more This article examines the development of the law on security over personal property and its interaction with the law on mortgages over real property. It demonstrates that the usual understand of the rules on fixtures and fittings must be re-examined in light of the history.
The history of the development of the implied terms on short delivery is a complex story of judic... more The history of the development of the implied terms on short delivery is a complex story of judicial and academic ignorance of law and facts. Sir Mackenzie Chalmers' statutory formulation of the right to correct delivery was the same as that provided in Judah Benjamin's 1868 work on sales. However, Benjamin's formulation was flawed, which led to a highly unsatisfactory rule of law. This article considers the history of the case law on short delivery, leading up to the 1893 codification. The operation of the statutory rule further illustrates the depth of confusion which remained following codification. A comparison with the history of short delivery in the United States demonstrates that the confusion within the English system could easily have been avoided.
This article considers the lack of protection granted to purchasers of goods encumbered with rete... more This article considers the lack of protection granted to purchasers of goods encumbered with retention of title clauses. In chains of transactions, disponees are only able to acquire such title that their immediate disponor had. The difficulties involved in determining the extent to which the title is encumbered is magnified as chains of transactions extend. English law fails to fully acknowledge the vital role of authorisation in cases involving pre-existing but unknowable encumbrances. The failures of English law can be usefully contrasted with the situation in the United States of America. Under Article 9 of the Uniform Commercial Code, a security interest can pass with the goods upon disposition, yet if the disposition is authorised, the security interest will merely attach to the proceeds of the disposition. The final purchaser will be able to retain the goods. Although prima facie similar to English law, the American case-law demonstrates that authorisation plays a substantially more influential role, and reduces the risk to purchasers in comparison with English law.
This article considers some of the difficulties arising from how English law conceptualises certa... more This article considers some of the difficulties arising from how English law conceptualises certain types of security interests over Intellectual Property Rights (IPRs), and the problems arising from dual registration systems. This analysis is informed by a critical comparison of the current English doctrine, alongside the US system and the proposals from UNCITRAL. It is shown that no single system is ideal for regulating a world of integrated goods (whereby goods and software are inextricably interconnected), but aspects of different systems can be useful for dealing with the complex but necessary relationship between tangibles and IPRs. It will be further argued that reform of security interest law resulting in a single register for security interests which treats goods and IPRs as analogous for security purposes, is necessary. Recommendations to deal with problems concerning purchase money security interests, and third party purchasers in potential conflicts with IPRs holders, are also put forward.
This article notes that English courts deal with voidable title conflicts by attempting to find w... more This article notes that English courts deal with voidable title conflicts by attempting to find whether there is a contract between the original owner of goods and the rogue whose actions made such contract void or voidable. This position has become entrenched following the decision of the House of Lords in Shogun Finance v. Hudson. A comparative analysis with the law of the United States indicates a superior alternative: there is no need for a contract between the original owner and the rogue.
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Papers by Sean Thomas
technology, and demonstrates the lack of consideration given to ownership issues in such contexts. The extent to which circular economic ideals require controlling goods down-stream will be exposed. Following this is an analysis of the ramifications of smart technology, illustrated with recent examples of control through smart technology. This leads to a critique of the US Supreme Court’s recent decision on patent exhaustion Impression Products v Lexmark alongside the CJEU’s decision in UsedSoft on copyright, addressing implications for contracting practices. The article concludes by urging close comparison of claimed benefits arising from circular economic approaches to smart technology with the potential costs of control (or lack thereof) of novel technologies.
for sellers for breach of the section 12 obligations. Recent technological change has brought about the development of goods that operate in conjunction with software. The extent of the relationship between goods and software varies, but the level of integration may be sufficient to consider the software ‘embedded’ within goods. To what extent can the holders of intellectual property rights in software extend their
interest into goods with embedded software? Can a third-party sub-purchaser escape the reach of the intellectual property rights? A reform proposal is made that would enable sub-purchasers to avoid the problems of pre-existing intellectual property rights in goods with embedded software.
technology, and demonstrates the lack of consideration given to ownership issues in such contexts. The extent to which circular economic ideals require controlling goods down-stream will be exposed. Following this is an analysis of the ramifications of smart technology, illustrated with recent examples of control through smart technology. This leads to a critique of the US Supreme Court’s recent decision on patent exhaustion Impression Products v Lexmark alongside the CJEU’s decision in UsedSoft on copyright, addressing implications for contracting practices. The article concludes by urging close comparison of claimed benefits arising from circular economic approaches to smart technology with the potential costs of control (or lack thereof) of novel technologies.
for sellers for breach of the section 12 obligations. Recent technological change has brought about the development of goods that operate in conjunction with software. The extent of the relationship between goods and software varies, but the level of integration may be sufficient to consider the software ‘embedded’ within goods. To what extent can the holders of intellectual property rights in software extend their
interest into goods with embedded software? Can a third-party sub-purchaser escape the reach of the intellectual property rights? A reform proposal is made that would enable sub-purchasers to avoid the problems of pre-existing intellectual property rights in goods with embedded software.