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Knowledge, belief and suspicion - doing deals behind the curtains.

FCRO Subsection: 
Editorial Staff

In 1992, some "old masters" were stolen from Lincoln's Inn in London, one of the Inns of Court where barristers are made and Judges are born. It naturally aroused outrage in legal circles which, like Olympic rings, overlap with government.

Even worse was that the pictures were sold in Bermondsey Market, one of London's Ancient Markets, having been granted a charter many hundreds of years earlier. The price, for each, was less than GBP150.

The purchaser was delighted with his bargain and made it known. Lincoln's Inn was not at all pleased and sued for the return of the stolen items. The Inn lost because Bermondsey Market was designated as "market overt."

Market Overt is an ancient concept: the name is Law French but it long predates that. Some say that it is Roman in origin and it has developed, apparently spontaneously, across countries that were subject to Roman Occupation. This has some bizarre logic to ie because while the concept is known to English law, it is not known to law in Wales, Scotland or either part of Ireland where the Romans did not go, at least not in any number.

Sales must take place in the open (a fixed market does not count and sales must not be "behind a curtain)) in a designated market (flea markets, antiques markets, car boot sales do not count) between sunrise and sunset.

The principle of market overt was brought from the Common Law into statute in the late 1800s and restated in the Sale of Goods Act 1979. That Act, at s21, confirmed the Common Law principle that no person may pass to any other title to property which is better than that which he, himself, holds. This dovetails with the law on stolen goods: a thief acquires no title therefore anyone buying from the thief has no title. S22 provided an exception for sales in market overt. "Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller."

In 1994, Lord Renton introduced in the House of Lords the Sale of Goods (Amendment) Bill. In doing so he said

The general rule of English law is that a buyer of goods acquires no better title to them than the seller had—nemo dat quod non habet. That is stated in the Section 21 of the Sale of Goods Act 1979. That re-enacted the equivalent section of the Sale of Goods Act 1893 which in its turn had codified the common law on sale of goods, including the market overt rule...The market overt rule applies to markets that have existed since before 1189 or were created by statute or by charter...Ancient street markets and country fairs existing continuously for those 800 years are markets overt but shops are not, even those which displayed their goods openly in front of and outside the shop...The rule applies these days mostly to the few ancient traditional street markets, of which perhaps the best known is Bermondsey market, which is held every Friday from dawn until mid-afternoon. It has become notorious as a place where stolen goods can be easily sold, especially silver and jewellery, as well as other antiques. Pictures are sometimes on Sale and sometimes there are valuable paintings by old masters. For example, the year before last two Gainsborough portraits and a Reynolds were stolen from Lincoln's Inn. One Gainsborough and one Reynolds were sold about six months ago in Bermondsey market. Each picture fetched less than £150. The buyer claimed that he had a good title to them because they were sold in market overt. He said that he did not know that they were stolen and thought that he gave reasonable value for them. They were each worth thousands of pounds.

Although I am a member of Lincoln's Inn and used to serve on its pictures committee, that is not why I am introducing the Bill. I should be doing so even if our pictures had not been stolen because, quite frankly, the market overt rule has become a thieves' charter. Something should be done about it and very soon...Meanwhile, I should point out that this is an urgent crime prevention matter. It cannot wait indefinitely for a long and full inquiry leading to legislation perhaps next year or the year after. It must be attended to immediately. "

And so it was: the Bill became and Act and was brought into effect within a period of only several weeks. It had only one effective clause. "Section 22 (1) (relating to the sale of goods in market overt) of the Sale of Goods Act 1979 is hereby repealed."

800 years of history wiped out in just 21 words, in a matter of weeks, the catalyst for which was that of a single Art theft from an institution close to government. No matter that, as the House of Lords debate made clear - the principle had been a thorn in the side of the police and, amongst others, the established fine art market, for many years.

Additional Reading
Sale of Goods Act 1979 (original text) http://www.legislation.gov.uk/...
Sale of Goods (Amendment) Act 1994 http://www.legislation.gov.uk/...
For an interesting discourse see https://www.jstor.org/stable/7...
For the provision abolishing the concept in England see http://www.legislation.gov.uk/...
For the fascinating Hansard speech relating to the abolition, see https://hansard.parliament.uk/...(Amendment)BillHl

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