LOTR in Siessin

So thegameiam posed this question, an excerpt of which follows. What happened next is copied below. Law students, be kind. Some of us have been out for a while.

Consider the following facts:

1. Sauron holds ownership in the Ring through accession, by working one thing (base metals) into a new thing (a ring of power)
2. He is dispossessed by Isildur, who now holds possession in the Ring.
3. 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.
4. Déagol finds the Ring.
5. He is dispossessed by Sméagol (a.k.a. Gollum).
6. Gollum loses the Ring and it is finally found by Bilbo.
7. Bilbo gifts the Ring to Frodo. Later, Aragorn (the heir of Isildur) tells Frodo to carry the ring to Mordor, making Frodo his bailee.
8. 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.
9. 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.

The Lord of the Rings story is that of a property hierarchy with one owner and a series of possessors.

My comment:

Ok, here we go with the first salvo:

This is all nice in theoretical property found in text books, but the reality is that a person is not generally required to return a lost object once found under English law (not Jewish law, where the rule is the opposite). Further, the following is mistaken:

7. Bilbo gifts the Ring to Frodo. Later, Aragorn (the heir of Isildur) tells Frodo to carry the ring to Mordor, making Frodo his bailee.

8. 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.

First, if you believe that Bilbo does not have title to the ring, then he cannot gift it.

Let's say that he gifts it anyway, Frodo, being unaware that the Ring was previously lost, should take title without being subject to a prior claim. This is a lot like the "holder in due course rules" applicable to things like checks, travelers cheques, and other "commercial paper" in the Uniform Commercial Code.

Most importantly, if you follow the logic of the piece, Aragorn doesn't have a clean title to the ring, so he cannot tell Frodo what to do with it AND, even if it was Aragorn's ring and he told Frodo to take it to Mordor, it is clear that Frodo would not be a bailee at all - he would be Aragorn's agent. A bailee is merely one who keeps an object either for a fee or for free, not one who takes the object and does with it as commanded -- that's an agent and the duties owed are different. To wit: a gratuitous bailee (e.g. one holding the object for free) owes the owner a duty not to be negligent with the object. It is contradictory to ask a bailee, a keeper, to destroy his charge. Destruction is usually a negligent act or consequence. Here, to the contrary, Frodo is discharging his duty in destroying the ring. In this case, a failure to destroy the ring would be negligent - the opposite result.

Say that three times fast.

JW's response:

The premise is flawed. First, it states that LOTR is about property law (in the underlying piece). I disagree; rather, the underlying piece is merely issue spotting. One can do a similar analysis regarding Vader's light saber, cut from Annakin by Obi Wan, gifted to Luke by Obi Wan, and destroyed or abandoned by Vader when he cut off Luke's hand. Second, it is applying English common law to Middle Earth. Under choice of law doctrine, the law of England would be inapplicable, and one would have to look at the law of the situs of Mordor, the Shire, and Rivendell, et al., where the transfers took place.

Finally, it misses a key underlying fact. The ring is not merely a res. Sauron put himself into the ring, as evidenced by his destruction when the ring was destroyed. He cannot have been considered to have abandoned himself, even when the non-ring part of him mutated to a shadow. (This is not to be confused with abandonment of one's dead body parts; the ring contained his viability and power.) If Sauron was in the ring the entire time, he was always in possession. Smeagol, Aragorn, Bilbo, Frodo et al., were, rather, in custody of his corpus and he was then a slave in fact. Mind you, in the common law slavery is legal, as evidenced by the Dred Scott decision. The real question, then, is whether slaves had possessory and titular property rights. It seems they could, else it would be impossible for a slave to have bought his freedom, which did occur at times. (If not, I'd say Smeagol was the rightful owner--Isildur's heirs failed to claim the property, abandoning it; Smeagol acquired it, though through murder, from his next of kin, the finder and lawful owner; Bilbo stole it and never had good title--his gift to Frodo does not make Frodo a bona fide purchaser for value, leaving Smeagol free to void the unlawful conveyances).

Here endeth the lesson.

My reply:

JW,

Your analysis is astute, save one point: a slave's ability to own property was severely limited, if permitted at all. Indeed, many were only able to "own" themselves by working to earn theior freedom. (an example, take DC: http://memory.loc.gov/ammem/sthtml/stpres02.html). Thus, if Sauron was a slave in fact to those holding the ring, he could not own it -- and if he did own it, common law slavery made that property the property of the master. As such, we have resurrected the problem.

To complicate matters further, your assertion that Sauron is the slave may be incorrect. The Ring itself has the power to bend men's wills.In that way it enslaves them. If Sauron and the Ring are one, then he arguably enslaves them and we have reversed your analysis.

From JW:

Upon reviewing your most recent correspondence, I must agree with your concluding analysis. The One Ring could enslave the bearer's will and it had a will of its own, exemplified by its departure from Isildur and Gollum, when it purposefully slipped away from them. The One Ring, as part of Sauron, was never the property but was independent or the owner of the bearer, depending on one's perspective. The One Ring was akin to the equestrian; the bearer was no more in title or possession than the horse of its rider.

Thank you for your consultation with this matter. Please feel free to contact me with any questions or concerns on this or any other matter.

Respectfully,
JW

Hope you enjoyed it.