THE LAW OF ABANDONMENT AND THE PASSING OF PROPERTY IN TRASH
|(2011) 23 SAcLJ 145
|SAW Cheng Lim LLB (Hons) (National University of Singapore), LLM (Cambridge); Advocate & Solicitor (Singapore); Associate Professor, School of Law, Singapore Management University.
|01 December 2011
|01 December 2011
This article examines the law of abandonment - primarily in the context of rubbish disposal - from a comparative perspective. It will, in particular, consider whether the owner of moveable property can, in theory, divest himself of ownership rights therein by simply abandoning the chattel in question, and whether the common law recognises such a concept of (unilateral) divesting abandonment. Additionally, the article will examine how, if at all, the notion of abandonment - as it is understood and applied in relation to physical property - may also operate in the realm of intangible property.
1 It is trite that outdoor trash bins (or dumpsters) can often be an unintended and valuable source of information. People dispose of waste for a host of reasons, ranging from the mundane to the highly sensitive and covert. This probably explains the impetus behind the commonlyencountered practice known as “dumpster diving” - to rummage through other people‘s trash in the hope of finding skeletons in the closet or other forms of private and confidential information. The motives of the dumpster diver are not always oblique. Apart from those who surreptitiously obtain sensitive information (such as passwords, credit card numbers, bank account details and trade secrets) for purposes of committing identity theft or industrial espionage, there are others who dumpster dive (or who engage the services of private investigators to do so on their behalf) as a result of the need for discreet and undetected retrieval of documents/evidence for civil and criminal trials. Such was the case with the defendant in a fairly recent dispute before the Singapore High Court.
2 In Vestwin Trading Pte Ltd v Obegi Melissa,1 the defendant had obtained a judgment in New York against a third party, whilst the plaintiff was in possession of certain documents which revealed that the third party (a company allegedly related to the plaintiff) had assets in Singapore. Obviously, these highly relevant documents would come in useful if the defendant tried to enforce the New York judgment in Singapore against the third party. As fate would have it, the plaintiff later disposed of these allegedly confidential documents as waste, which was routinely picked up by contract cleaners and subsequently left at a common rubbish dump for collection and disposal. The defendant then managed, with the help of private investigators, to retrieve these discarded documents (prior to the arrival of the trash collector) and later tendered them as evidence in separate court proceedings against the third party.
3 Unsurprisingly, the plaintiff commenced proceedings against the defendant in the form of an application for summary judgment and argued that the defendant‘s unauthorised retention and use of the plaintiff ‘s documents amounted to a conversion of the plaintiff ‘s property as well as an equitable breach of confidence.2 In relation to the plaintiff ‘s argument on conversion,3 the defendant claimed to be entitled to ownership and possession of those discarded documents on the basis that the plaintiff, in putting them out as rubbish for collection, had abandoned all rights of ownership in them. This line of reasoning was, however, rejected by Andrew Ang J, who granted the plaintiff ‘s application accordingly. On appeal, V K Rajah JA, on behalf of the Singapore Court of Appeal, overturned Ang J‘s decision,4 principally because this particular case involved novel issues of law (eg, the doctrine of abandonment) and required a full examination of all the relevant facts.5 As such, his Honour decided, “without adjudicating conclusively on the merits of each side‘s case, that the matter should proceed to trial instead of being summarily determined”.6
4 The aim of this article, therefore, is to examine the issue of abandonment in the specific context of rubbish disposal - a rather
“mundane matter” which is nevertheless a “necessary and common occurrence in daily life”.7 Can it be argued, for example, that a homeowner who puts rubbish out for collection by the curbside has, by this act alone, clearly evinced an intention to completely relinquish his ownership rights therein? Can the homeowner, after discovering that he had disposed of certain documents in error or inadvertently (and before the arrival of the trash collector), subsequently change his mind and recover those documents from the trash bin? In exploring these questions from a multi-jurisdictional perspective, this article will also consider whether it is possible, in theory, for the owner of moveable property to divest himself of his ownership rights by merely abandoning the chattel in question, and whether the common law recognises such a concept of (unilateral) “divesting abandonment”. Additionally, the article will examine how, if at all, the notion of abandonment - as it is understood and applied in relation to physical property (such as trash) - may also operate in the realm of intangible property. For example, how do the laws of copyright and trade marks determine the circumstances under which the intellectual property owner is deemed to have unconditionally abandoned the ownership of his intellectual property?
II. “Abandonment” defined
5 The word “abandonment” may, in law, assume a number of different meanings, depending on the context in which it is used. It is important, at the outset, to distinguish between an abandonment of ownership of property (or title to property) and an abandonment of possession of (or control over) property.8 It has been said that the mere relinquishment of “possession” of a thing is not an abandonment in a legal sense, since such an act is not wholly inconsistent with the idea of continuing “ownership”. The act of abandonment must be an overt act (or some failure to act) which carries the implication that the legal owner neither claims nor retains any interest in the subject matter of the abandonment.9 This is sometimes known as “divesting abandonment” - an abandonment of both possession and ownership,10 whereupon the property in question is deemed to be returned to the common pool of unowned resources.
6 From a brief survey of US and Canadian case law, it is apparent that two requirements must be satisfied in order to effect a proper abandonment of property. According to the Ontario Court of Appeal in Simpson v Gowers,11“[a]bandonment occurs when there is ‘a giving up, a total desertion, and absolute relinquishment‘ of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property …”. There must therefore be, in addition to the overt act of abandonment itself, a specific intention/motive on the part of the original owner to completely relinquish all rights of ownership - voluntarily and, more importantly, without regard as to who may subsequently take possession of the property. It bears repeating that such relinquishment must be to the extent where the former owner is completely indifferent as to the fate of the discarded object (ie, as to what/who may await the abandoned property).12 In other words, if anyone else takes and uses the abandoned property in whatever manner, that is a matter of no consequence to him.13
7 Proof of “intention” is, of course, a question of fact. Clearly, an intention to abandon property will not ordinarily be presumed.14 There must, generally, be some direct or affirmative evidence of subjective intent.15 Alternatively, intention may be established objectively, through the process of inference, from the overt acts and conduct of the proprietor - eg, from the circumstances surrounding the proprietor‘s treatment of the property, the manner and location of abandonment, as well as the nature and value of the property. There must, in other words, be some explicit conduct which can be taken to indicate, clearly and objectively, that the owner no longer wants his or her property.
8 To what extent, then, does the act of rubbish disposal (whether in trash bags left by the curbside or in the common rubbish dump of a building awaiting collection) indicate a clear and specific intention on the part of the owner to abandon not just possession of the property, but also ownership thereof? Does “divesting abandonment” ever arise when rubbish is disposed of in this manner? We shall now examine how these questions have been addressed by the courts in different jurisdictions.
III. A general survey of case law developments
9 It may be usefully noted, at the outset, that the law of abandonment is as yet untested in Singapore. As V K Rajah JA has observed,16“[t]here is no legislation, case law or authoritative academic view on title to or possession of items which have been disposed of as rubbish”. Case law developments elsewhere have also been far from uniform. V K Rajah JA has, in this regard, noted thus:17
The positions vary across different jurisdictions, with the courts in Australia, Canada and the US generally recognising, but applying differently, the concept of ‘divesting abandonment‘ - ie, the abandonment of both ownership as well as possession.
10 Be that as it may, it is hoped that the following review of case law and subsequent analysis of the relevant principles will at least offer some guidance to the courts in Singapore on the applicability of the law of abandonment in the specific context of rubbish disposal.
A. The US and Canada
11 The doctrine of abandonment has been employed in the US in two different contexts. In the property law context (involving a civil claim for conversion of personal property and with which this article is primarily concerned), “abandonment” refers to an owner‘s voluntary and intentional relinquishment of a proprietary interest in property to the extent that another person may take possession of that property and assert a superior interest to it.18 On the other hand, “abandonment” in...
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