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In the latest instalment of a mini-series that provides a historical perspective to the legal quandaries of the present, future magic circle trainee Will Holmes argues that the prehistoric partible self offers an insight into the modern legal questions surrounding what is property and what is a part of us.

Since prehistoric times, humans have grappled with their understanding of themselves and how they interact and regulate things around them. This can be seen in the shifting sands of property law. Sperm and cyborgs are the latest protagonists to blur the lines between what constitutes property and what is a part of ourselves.

Over the past couple of decades, sperm has on several occasions become a legal exception to the default position that our bodies and body parts cannot be property. As Morag Goodwin shows, scientific advancements have enabled bodily material such as sperm to be treated in novel ways that have led judges to consider it property in a variety of different circumstances (from negligence claims to marital property in divorce disputes). Property rights are used to facilitate the transfer of sperm and to ascribe it a monetary value for legal remedy. The question is whether one should be able to alienate personhood from sperm for these purposes. Does sperm’s life-generating potential mean that it can ever truly be considered alien to its progenitor?

Conversely, cyborgs have pushed courts in the opposite direction, arguing that an object should legally be considered part of our bodies. Rather than the likes of Dr Steve Mann’s Eyetap and Meow-Ludo Disco Gamma Meow-Meow’s (yes, that is his legal name) convenient insertion of his Opal travel card chip in his hand, the majority of cyborgs today are people who have lost an organ, limb or function. Anyone with a pacemaker or a bionic prosthetic is a cyborg.

Unsurprisingly, the argument for considering a machine to be part of ourselves is strongest when a machine is used to restore a bodily function rather than enhance it. This issue was raised when the quadriplegic American war veteran Mr Collins had his mobility device damaged by an airline, leaving him with no alternative but to remain bed ridden for 11 months whilst a replacement device was being built. The airline initially provided him with minimal compensation of $1,500, arguing that they had not damaged their customer, but a machine.

The core of the legal dilemmas surrounding the status of sperm and cyborg’s machines is the fundamental question of legal personhood. What counts as ‘us’ and what should be alienated from ourselves? Can ‘we’ be divided?

Such questions benefit from some prehistoric perspective. Ian Hodder describes how evidence suggests that in the Neolithic era (5,000-3,000 BC) the self was partible, which meant that a sense of personhood could be developed in objects. Examining the remains of the 9,000-year-old town of Çatalhöyük, Hodder searches for evidence of property rights using indications of bodily boundaries and the self as an autonomous agent as his guiding criteria.

He finds that houses were constructed with skulls placed in ritually important locations such as in the foundations and on the walls. Furthermore, there is fluidity between humans and animals whose remains and artistic representations often overlap. These findings indicate collective agency (a symbolic sense of family history — literally building on one’s forebears) and a lack of bodily boundaries. In short, there was a very limited notion of property.

This helps us to imply that artefacts such as the seashell ear, possibly the oldest example of a prosthetic in history, could well have been viewed as part of the self rather than an object. It also reinforces the likelihood, as Alessia Zielo writes, that skulls were considered to be linked to the fluid social concepts of life, death and fertility. ‘We’ existed to a certain extent through objects that could not be conceived of as property.

Archaeologists and sociologists broadly agree that the domestication of animals and the development of agriculture led hunter-gather societies to specialised roles and therefore new forms of social identity. The greater the sense of self, the stronger the sense of exclusive property becomes. Indeed, there is evidence of uniquely decorated and individualised skulls in Çatalhöyük, an example of these early developments.

Eventually, skulls are swapped for sculptures in the form of stelae in which humans are first known to depict themselves. This marks the completed emergence of “self-consciousness” (in the Hegelian sense) defined against objects. Ultimately, the cases of sperm and cyborgs test our ability to conceive of a partible self again, but in the radically different context of societies built on individualism and a strong sense of property.

Will Holmes is a future magic circle trainee.

Previous instalments:

What ancient Greek oracles warn us about predictive justice

How the Satanic lawyer created the billionaire legal sector

How to use Roman law to fight the eco war

What lawyers’ response to the printing press tells us about the future of legal tech

What Emperor Claudius would have thought about the City law pay war

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In the movies, Tarzan travels the jungle by swinging through the air on lianas (spoiler alert: in reality, rather than the movies, lianas are rooted in the soil at ground level and so would not be much use for swinging from tree to tree.) As property lawyers we are more likely to come across liens than lianas, sadly. And liens usually relate to something solid rather than thin air. But not always.

In Eason v Wong, Arnold J had to grapple with the question whether equitable liens could have arisen in favour of the buyers under contracts to purchase suites in a block of student housing that was never built. While that was doubtless less challenging, and certainly less dramatic, than grappling with a crocodile Tarzan-style, it is hoped that an account of Arnold J’s intellectual grapple may be of more use to the likely readers of this article than any Tarzan-based tale might be. So, at the risk of disappointing some, it is Eason v Wong, not Tarzan that is the subject of this piece.

Eason v Wong — the facts

In 2012 a company by the name of Alpha Student (Nottingham) Ltd (“Alpha”) acquired a site on which it obtained planning permission to build an eight-storey block to comprise 131 suites of student accommodation with retail space on the ground floor. Alpha entered into contracts with a number of investors to sell them leases of student suites within the block, off-plan. Draft leases appended to the contracts referred to floor plans identifying the suite to which the contract related. The investors paid 50% deposits.

After receiving deposits of £3.2m odd, Alpha went into liquidation. All that Alpha managed to do towards building the student accommodation prior to being placed into liquidation in August 2015 was demolish the existing building on the site.

Alpha’s liquidators sold the site for £1.1m odd in June 2016. The question for the court in Eason was whether the investors ranked as secured creditors of Alpha in the liquidation on the basis that they had enforceable equitable liens over the site. At a previous hearing, the court had directed the vacation of unilateral notices over the site to allow the liquidators to sell it on terms that if the purchasers did have equitable liens they be transferred to the proceeds of sale.

Purchasers’ liens generally

The unpaid vendor’s lien is a well-known, although not always well-understood, creature. It arises in favour of a vendor whenever the vendor transfers the property being sold without having received the whole purchase money.

The equitable lien that arises in favour of purchasers for any deposit or part-payment made under an uncompleted contract attracts less attention but is also a long-established feature of conveyancing under English law. (See, for example, Wythes v Lee and Rose v Watson.) The purchaser’s lien is an aspect of, or related to, the equitable interest which a purchaser acquires on exchanging contracts to buy land; it secures the deposit (or other part-payment) monies until the land has been transferred to the purchaser. The lien does not depend on the availability of specific performance; see Levy v Stogdon. It is imposed by the law rather than in the contract so will survive the (lawful) rescission of the contract by the purchaser; see Whitbread & Co. v Watt. However, the lien can be modified or excluded by express or implied agreement of the parties.

The problem in Eason

In Chattey v Farndale Holdings, the Court of Appeal upheld Blackburne J’s conclusion that purchasers’ liens arose over flats in an unfinished block of flats. Construction work was far enough advanced when the vendor ran out of money that the flats to which the contracts of sale related could be identified without difficulty. Liens arose over the freehold interest in the parts of the building comprising those flats even though the contracts were for the sale of leasehold interests under leases which had not been granted. As Morritt LJ observed, however, the question of how to give effect to a purchaser’s lien in cases in which the relevant building does not exist did not arise. It arose in Eason.

In Eason, the defendants were Alpha’s liquidators. They accepted that purchasers’ liens in favour of the claimants would have arisen on exchange of contracts but contended they were unenforceable because (a) the leases had never come into existence and (b) the building was never built.

Arnold J rejected both arguments. As to the non-existence of the leaseholds, because purchaser’s liens do not depend on a right to specific performance, it is not necessary for the legal estate contracted for (leasehold in this case) to exist:

It is sufficient that the vendor has contracted to create the legal estate in question our of another legal estate which does exist and that the legal estate which is to be created is identifiable.

As to the non-existence of the building, a purchaser’s lien attaches to the land which is the subject of the contract, not the land as a whole when the contract only relates to part. So, the claimants had liens over the airspace that would have been occupied by the suites they had agreed to purchase when constructed. It was, thus, no objection that the suites themselves were not constructed. And since each of the purchasers had a lien over a separate parcel of airspace, their liens did not conflict and they could share proportionately in the proceeds of sale.

The court went on to do a rough and ready calculation to ascertain the value of the suites which had been contracted to be sold and the value of the vendors’ interest in the rest of the site in order to calculate the ratio in which the proceeds of sale should be distributed between the vendor’s unsecured creditors and the purchasers with the benefit of equitable liens.

The result appears to the author of this article to be a just one which demonstrates the capacity of the courts to apply nineteenth century equitable principles to the modern world in a way that avoids undue technicality.

Daniel Gatty is a property law specialist at Hardwicke. He is a politics and economics graduate from the University of Manchester who converted into law at City, University of London. He is now recommended as a leading junior for property litigation in The Legal 500.

This article originally appeared as an ‘Insight’ on Hardwicke’s website.

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Students at the London School of Economics (LSE) were left seething over the weekend, after being informed that their property law exam was being brought forward by a whole month.

On Friday afternoon, just hours before they were due to break up for Easter, LLB students received an email that said their “Property II” exam — which was originally scheduled for 2 June — would now take place on 2 May. The message, in full below, apologised to those affected for the “disruption”, but failed to offer any explanation as to why the decision had been taken in the first place.

As you can probably imagine the exam date switch did not go down well with LSE’s law student cohort. One, wishing to remain anonymous, told Legal Cheek that the law school’s decision was “outrageous”. Another — who revealed that students had received their finalised exam timetable over a month ago — branded it “unacceptable”.

And these weren’t just isolated pockets of discontent. A petition calling for “the exam to be placed on its original date” has amassed over 400 signatures. Continuing, the online appeal — which was posted on Change.org — states that the date switch is “taking away valuable revision time for students.”

Now, it would appear LSE bigwigs have bowed to student pressure.

Those affected by the decision received an email (in full below) this morning which confirmed that the property exam would now take place on its original date, 2 June. Apologising “for any distress or worry caused,” the email cites a number of factors that prompted the date change, including the close proximity of other exams and issues finding a large enough venue in London.

Confirming that the exam would now go ahead on its original date, LSE’s head of law, Jeremy Horder, told Legal Cheek:

The department of law made a recent change to the date set for an examination, after consideration of a variety of concerns about the original date. However, in the light of student objections to the disruption that this change would cause, the department has reinstated the original date for the examination. The department apologises for any worry or confusion that may have been caused.

It would appear the only thing more stressful than taking a law exam is trying to schedule one.

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