by Omar Ha-Redeye and Jacob Kaufman
(from the March Issue of Nexus, Western Law’s Student Newspaper)
The novel The Lord of the Rings was a phenomenon. The movie trilogy based upon it has grossed over a billion dollars and won a slew of Oscars.
But what’s really interesting about the work is that it is about property law.
Seems Like a Property Exam
Consider the following facts which seem ripped from a first year property law exam:
- Sauron holds ownership in the Ring through accession, by working one thing (base metals) into a new thing (a ring of power)
- He is dispossessed by Isildur, who now holds possession in the Ring.
- Isildur loses the Ring (he has a manifest intent to exclude others but no physical control) when it slips off his finger as he was swimming in the Anduin river to escape from Orcs.
- Déagol finds the Ring.
- He is dispossessed by Sméagol (a.k.a. Gollum).
- Gollum loses the Ring and it is finally found by Bilbo.
- Bilbo gifts the Ring to Frodo. Later, Aragorn (the heir of Isildur) tells Frodo to carry the ring to Mordor, making Frodo his bailee.
- Sam, assuming that Frodo is dead, takes the Ring according to instructions to help Frodo with the Ring in grave circumstances. Sam is acting here as a (fictional) bailee and he returns possession to Frodo after finding him still alive.
- At the end of the book, Gollum restores his possession of the ring. Seconds later, he and the Ring are both destroyed. At this point all property held in the Ring disappears.
Hierarchy of Ownership and Possession
The Lord of the Rings story is that of a property hierarchy with one owner and a series of possessors.
[The Ring] is mine isn’t it? I found it.
He seems to be laying a claim of ownership through finding. But finding only lets a finder hold possession in a thing. It does not extinguish the rights of those higher up on the hierarchy.
In Anderson v. Gouldberg it was found that “possession is good title against all the world except those having better title.” It does not matter that several of the possessors of the Ring like Isildur and Sméagol obtained possession by violently dispossessing others. That circumstance does not change the dispossessor’s rights vis-à-vis a third party.
The fact that all parties subsequent to Sauron hold only possession in the ring is acknowledged in the text. When Gandalf forces Bilbo to give up the Ring, he tells him to,
[s]top possessing [the Ring].
After discovering that Aragorn is the heir of Isildur Frodo exclaims that the Ring really belongs to Aragorn. Aragon corrects him:
It does not belong to either of us, but it has been ordained that you should hold it for a while.
Frodo later elaborates that the Ring,
does not belong to any mortal – though if any could claim it, it would be Aragorn.
Here he demonstrates his understanding of the property hierarchy – with Sauron at the apex as owner and Aragorn as next highest as a descendent of the first possessor after Sauron.
What claims can Aragorn make that he is the rightful owner?
Isildur claimed the Ring as weregild for the death of his relatives at Sauron’s hand.
As Professor Gwen Seabourne notes this is,
compensation for the kin of the slain in respect of a (wrongful) killing.
If a claim in weregild is upheld then Aragorn would hold ownership of the Ring. The Ring, however, is shown to have Animus Revertendi as it seeks to return itself to Sauron.
Would this cut against a transfer in weregild? Canadian Courts have, so far, not ruled on how the intrinsic characteristics of magical items demonstrate who holds what property in them.
Another claim that Aragorn could make is that Sauron’s ownership of the ring elapsed due to abandonment.
Simpson v. Gowers defines abandonment as a “giving up, a total desertion, and absolute relinquishment.” Sauron did believe that the Ring was gone forever, which would support the idea that an abandonment occurred.
Asessing a Claim of Abanonment
Stewart v. Gustafson sets out four factors to further help determine if property has been abandoned:
- Passage of Time: As the years go by, the likelihood of abandonment increases. In this case 3000 years passed, which is a not insignificant lapse of time.
- Nature of Transaction: Certain transactions lend themselves more to assuming abandonment, having objects cut off your hand does not appear to be one of them.
- Property Holder’s Conduct: Abandonment can be inferred if a property holder does not try to require possession a reasonable time after receiving notice. After finding that the Ring was still attainable, not only is Sauron trying to retake possession but he is described as “seeking it, seeking it, and all his thoughts [are] bent on it.”
- Nature of the Thing: As the value of a chattel increases, the likelihood of inferring abandonment decreases. The extreme value of the Ring (it could be used to conquer all Middle Earth) cuts against an abandonment. The specific nature of the Ring also cuts against abandonment. Gandalf specifically states that “[the Ring’s] keeper never abandons it”.
It appears to be that the evidence points to no abandonment having occurred.
However, it seems likely that 3,000 years well exceeded the limitations period.
Therefore, Sauron has lost his right to legal recourse.
As far as Canadian law goes however he would still have a self-help remedy, which he apparently exercised by sending the Nazgûl to seize the ring.
- Ilya Somin, Assistant Professor who teaches property at George Mason University School of Law, adds some notes to this story at the Volokh Consipracy,
In addition to the primary property dispute over the ownership of the Ring, there are several other conflicts over property in the Lord of the Rings, such as the claim of Rohan’s neighbors that the Riders wrongfully disposessed them of their land, the conflicting claims to ownership of Moria as between the Dwarves and the Balrog, and Aragorn’s claims to inherit the lands and other property of his ancestor Isildur. The chapter on “The Scouring of the Shire” with its scathing portrayal of Saruman’s “Gatherers and Sharers” and Saruman’s nationalization of industry is a thinly veiled attack on socialism. None of this is to say that Tolkien was some kind of libertarian. He hated modern industry and capitalism. But he did have a conservative traditionalist’s attachment to private property, and it comes through in the book at many points.
- Be sure to check out the comments on his page as well, including IP claims laid by the Elves.
- Although David Colborne says this post is “geeky as hell,” Avierra of The Floating World retorts, “hot nerds are so very hot” (you should see us in wool suits in the summer). She then point out that Heidi Bond, a Michigan law student, has reviewed offer and acceptance in the LOTR context.
- John C. Wright raises issues of intestate and inheritors.
- K-wat raises international jurisdictional issues (we use Canada because that’s where we live, though common law principles are similar)
This is a reformatted article from a previous post. Acknowledgement is provided to Prof. Adam Parachin, who teaches first-year Property at the University of Western Ontario for the initial inspiration of these posts.