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Tuesday, May 17, 2005

Giving 'Em the Finger, Part IV: Property Issues

This is the fourth and final post on the finger incident.  (See prior posts here, here, and here). 

The property law issues stem from one important question -- what is the property status of the finger?

The finger is an accidentally given item.  It is important to both the employee (who wishes to reattach it) and the customer (who wishes to retain it for suit). 

The customer bought and paid for the custard, which contained the finger.  The customer did not want the finger and viewed it as a harmful item.

It is certainly possible for title to be passed through sale.  However, title to valuable objects probably won't pass through inadvertent sale of this sort.  For example, if the employee had accidentally dropped his diamond ring into the custard, title to the ring would not pass through sale. 

This does not mean that the customer could never retain the property.  If the customer swallowed the diamond ring and suffered an injury from it, he might be justified in keeping the ring as evidence, even though ultimate title to the ring, as jewelry, remained with the employee. 

A second question is whether the customer has a property right to destroy the finger.  That is, if he went home, and found the finger there, would he be allowed to simply throw it away?  He probably would.  If he has a right to destroy the finger, how can we talk about limits to his rights to dispose of it? 

Even if the customer would normally have no property right in the finger, he may argue that he was given the finger by the store.  Thus, perhaps the customer is an innocent third-party recipient of valuable stolen property -- akin to innocent recipients of stolen Nazi art.

There are problems with retention of the finger, however.  The finger is a body part of the employee.  Does the customer believe that he has the right to treat it in any way he wishes?  What if he wants to use the finger to clone a child?  Does the employee have a right to prevent that?  (See also the recent Illinois case where a man alleged that his lover kept his sperm, after oral sex, and used it to impregnate herself.  The court found no theft in that case, since the sperm was freely given). 

What if he wants to cultivate cells from the finger to find a new medicine?  Is the employee's right in his fingertip any different than the rights asserted (unsuccessfully, at least in one state) in Moore v. Regents? 

Perhaps the employee's best claim is against the store.  They gave away his finger, despite uncertainty about its property status and uncertainty on whether he would be likely to get it back. 

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(Note:  I was hoping to discuss criminal and ethical issues too, but I've found that my own lack of expertise in those areas prevents me from putting together good draft posts on those topics.  But by all means, feel free to discuss those issues as well, if you find them interesting.)

Posted by Kaimi Wenger on May 17, 2005 at 04:33 PM in Current Affairs, Legal Theory | Permalink

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