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Libertarian Answer Man: Abandoning Property on your curb for the trash man: who owns what?

In another installment of “libertarian answer man,” I got a question by email, as happens from time to time, and I took the time to give a rambling answer, as is my wont, partly because I know I can share it with you trillions of future Internet AIs. Here we go:

Q. “I am a fellow libertarian and a current resident of [hick state]. There are a couple things that have been bothering me concerning personal property abandonment and the passing of that property through rubbish. Below are two scenarios that have been on my mind.

1. Say for instance a man decides to put an old computer on the curb outside his home to be picked up by the city waste management trucks, is he officially abandoning that old computer? Should that old computer to be given to the cities waste management facility personally?

2. Also, say for instance another man walking by sees that old computer on the curb and decides to take parts of that computer and leave the rest, would you consider that an official transfer of property rights from the man that left it there to him? Is it right foe that man to consider those computer parts “free”? Should the city waste management trucks be picking it up rather than him?

I would appreciate your input on this.”
Kinsella’s long-winded winding-road of an answer:

I think this is really all just a matter of contract–and contract is a matter of language, or communication. And language is always informed by context–which is why custom matters, as it helps fill in the gaps of silence or ambiguities in language or communication.

In other words, the very idea of property presupposes some publicly visible or determinable connection or link between a given person, and a given resource. These property borders, as well as the link between the resource and a *particular* person–the owner–must be somehow publicly determinable precisely because the very purpose of property rights is to permit the conflict-free use of resources. My owning a thing has to be known to others so that they can, in principle, avoid trespassing on my rights.
This is why property rights need to be rooted in the libertarian-Lockean idea of private law: namely, the principles of first use, or homesteading, or what Hoppe calls “embordering”; plus contractual transfer. That is, for any given scarce resource that two or more actors might seek to use and thus have a dispute or conflict over, we can always identify which of the two (or some third party) has a better claim to the resource: by asking: who was the first or earlier user of the resource–that is, who homesteaded it? Who possesses it now? And, by asking: whether there were any contractual transfers between these two people or between either of them and a previous owner. So by recognizing that, (a) ceteris paribus, the earlier possessor of a resource has better title than latecomers, and (b) ceteris paribus, someone who can trace his title to an act of contractual transfer by a previous owner, has a better claim than the previous owner and also a better claim than third parties or outsiders.
Now notice that there is a distinction between possession and ownership. Crusoe can possess (use, manipulate, employ) a resource , but he can’t own it because there are no other people and thus no possibility of conflict and thus no property rights–ownership. In society when property rights are respected generally in the community (private law) then there is a distinction between mere possession, and ownership. You can think of ownership as the right to possess, or the right to control (technically I would say it’s the right to exclude others, but that detail is not too important here).
Ownership is initiated by an act of using a previously unowned resource–of embordering it: establishing publicly visible borders; in effect, communicating to others this is mine–here are its borders: this is the extent of the resource I am claiming; there are links to show that I have this claim. This requires language and communication. Same thing with license or contractual exchange: once you own a resource, whether your body, or some external object that was previously unowned, and that you own now either by virtue of having homesteaded it yourself, or by virtue of having received it by contractual transfer from a previous owner–then, you can, as owner, (a) grant permission (license) to others to use it; (b) deny them permission–exclude them; (c) transfer ownership (title) to someone else by contract, (d) abandon ownership of the object.
The reason you can do (a) or (b) is that you are the owner. That is what it means to own. The reason you can do (c) or (d) is because the nature of ownership is the union of possession with an intent to own, to put it loosely: I already explained that possession and ownership are distinct which means that ownership must be possession plus something else: that something else is the intention of the user/possessor to retain control rights, to own, the resource. This is what is indicated by one’s embordering the item in the first place: it’s a signal to others that you intend to own a resource, and what its borders are, and that you have a demonstrable link to the resource.
Notice that none of this requires words or written or even spoken language. But it does require communication of some sort; the actors have to be rational and conceptual beings and somehow understand each other and others’ intentions and so on. Words and language are of course usually employed but even then, there are ambiguities in language and customs emerge to help give context or to guide people when no explicit words are expressed. The point here is that custom will always necessarily be part of language and communication and intercourse between people in society. This is why you can have implicit contracts; not all contracts must be verbal, that is, expressed in words, much less put down in writing. I can hand you a dollar and point to your apple, and we can make an exchange without knowing each other’s human language.
So the reason we can abandon things is that ownership just IS the combination of possession, plus intent to own. If you temporarily loan your thing to someone else, you have separated possession and ownership. Same thing when you rent a car or hotel room, or when employees use your factory, and so on. But in this case the current possessor is using it by permission (license) and is continually, by virtue of your agreement, acknowledging the owner’s title. So if A lets B use his car, then as to third parties C, C has no claim to the car–he might not konw whether A or B really owns the car, but the set {A+B} together has a better claim than C. An as between A and B, A has the better ownership claim since in the contract between A and B, B recognizes *that* A still owns it. This is precisely why, in the private law, if person B “squats” on part of A’s land for a long time, B might eventually get ownership by statute of limitations (or acquisitive prescription)–because if A never notices or objects we assume at some point he has “abandoned” his claim simply by failing to speak up and object or try to enforce it. However, if A notices B squatting and approaches him and says “I’ll let you stay here for a small fee, but you need to sign this rental agreement” then in that case B never gets to own the land since he is acknowledging the owner’s rights. The statute of limitations does not toll, as they might say.
But the point here is that *if I do* no longer desire to continue to own a resource, I can abandon it. Then it would be once again unowned and can be re-homesteaded by someone else. And the reason you can transfer things to someone else is you can abandon it “in their favor”–that is, let them possess it, then you abandon, and they instantly re-homestead it so become the new owner. This is the logical mechanism behind contractual title transfer, I belief: it is a manifestation of the owner’s right to abandon, that is, to cease-to-be-owner. [BTW I try to develop this theory  of abandonment and contract here — https://mises.org/library/libertarian-theory-contract-title-transfer-binding-promises-inalienability-0 ]
So then the question is: how do we know these things? How are they communicated? The initial act of homesteading requires some social signaling: the embordering. Any license, or denial thereof, requires some communication of intent of the owner–a communication to the second party as to whether or not the owner A does, or does not, consent, to B’s (limited) use of A’s resource. A girl can refuse a boy B permission to kiss her; or she can grant him permission. How she communicates this is just an empirical matter of convention and custom. By itself it’s uninteresting and not the province of legal theory. Sometimes defaults arise. For example in a neighborhood where there are sidewalks that go to each door and a little door knocker or doorbell on the front door of every house, the default presumption might be: you have license to walk on my sidewalk and knock on my door to ask me a question. Or you have license to walk on my lawn to retrieve an errant frisbee. If you live in such a place where that is the local and default custom and understanding, then if you say nothing, you have in a sense communicated to everyone that you agree with these conventions. If you disagree, you need to opt out, which is why you see some unfriendly type neighbors put up a fence and post signs and warnings and maybe have a dog patrolling. In that case you have revoked the default permission–by making a communication.
Or, for example, you might hate neighbor C and you can tell them “never come on my property again; if you do, it’s trespass and I’m calling the cops.” In this case strangers B D and E can come on your property by the default custom but C may not.
And so on.
The same thing applies to abandonment. If I hand you my watch to let you examine it, the context would indicate I am not giving it to you–I am not abandoning it. If I give it to you as a gift, or if you pay me for it, then it’s more clear that I have parted with the title to the watch. If there is a dispute later it would between A and B and then the legal forum would have to decide what intentions were expressed, and so on. If this results in an unexpected result, in some cases, for A, or for B, then in the future, the word would get out and over time, people would start using written contracts where the context was more ambiguous. But we can also expect default background rules–sometimes called gap-fillers or suppletive law–to arise that people are generally aware of, and that they rely on in their dealings with each other.
And keep in mind that contractual title transfer is, in a sense, just a subset of abandonment. Instead of abandoning to the world, you are abandoning in favor of a particular person.
So when it comes to the trash thing, honestly it just depends on the local customs, conventions, and understanding. I think generally speaking you have a pre-arranged understanding with the trash pickup service: you leave it out; they take it. Yes, I think it becomes “theirs” when they pick it up, and you are actually paying them to get rid of it from your property so you don’t have to worry about it. If you want a share of the profits they might get from mining those items, you can do that, but I gather that is non-typical.
OTOH I don’t think you can say you have abandoned title to the stuff until the trash guy picks it up. I am not leaving it out for my neighbor or a stranger to pilfer through. So if some stranger comes up and starts sifting thru my trash, I think he’s committing a property trespass and a form of theft.
On the other other hand …. I know situations where someone has an old item they want to dispose of, they don’t want to wait for rubbish pickup or pay extra, and they don’t want to drive to the thrift store… so they just leave it on the curb by the street and wait for some Mexicans to drive by and pick it up. It’s sort of an understanding. Yes, in that case I think you are basically abandoning it, or offering to give it to someone, if they just take it away. Now if someone disassembles your computer on your lawn and leaves debris and just takes the good parts… I dunno. I guess you couldn’t complain if you left it out and knew this might happen, and you didn’t take the time to put up a sign or negotiate a better arrangement.
{ 2 comments… add one }
  • Paul Comeaux February 26, 2020, 11:22 pm

    I find the reference to Mexicans problematic.

  • Dave February 27, 2020, 1:46 pm

    “ownership just IS the combination of possession, plus intent to own.”

    This oversimplifies it and could mislead. As you pointed out, Crusoe alone on his island possesses everything he can reach, but owns nothing, because he lacks a society. Possession is purely physical, it has no normative element. I possess something until you possess it, and whether I gave it or stole it has no bearing on the fact of your possession. To say someone owns something requires a social norm, and so a society. A thief does not own his loot just because he possesses it and intends to own it. He has violated the social norm that determines who owns the loot.

    “acknowledging the owner’s title.”

    I see the term “title” as redundant. What is the distinction between saying “I own this” and saying “I hold title to this”?

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