Market Rights
Not all markets and fairs are actually markets and fairs in the eyes of the law. A market created under the Casual Trading Act 1995 or a private market held on private land are not a markets in the eyes of the law. Only markets and fairs created by Market Charter (letters patent) or by Act of Parliament are recognized in Common Law as lawful markets and fairs.
Definitions
A
‘market’ at common law is defined as the franchise right of having a concourse of buyers and sellers to dispose of commodities, in respect of which the franchise is given.
A ‘market right’ is defined as a right conferred by franchise or statute to hold a market or fair that is to say a concourse of buyers and sellers to dispose of commodities.
A ‘concourse’ means a ‘gathering’.
A market right is conferred on the public as both ‘buyers’ and ‘sellers’. The right to hold a fair or market to buy and sell commodities is conferred equally on the public as ‘traders’ and ‘customers’.
Right to determine the market location
The owner of a market franchise has the right to determine where the market will be held if not specified in the original charter. However there is an obligation on the market owner to provide reasonable and convenient accommodation to the public. A market owner has a duty to provide a convenient accomodation for all members of the public wishing to buy and sell at a market of fair. A market or fair is granted for the benefit of the public and the owner of the franchise.
The Right of the Market Owner to Charge a Fee
The right to take a toll or fee from persons wishing to sell commodities at a market is separate to the Franchise that creates the market in the first place. There are markets and fairs to which the right to take toll is not made with the original grant of franchise. Such markets are toll free, and the public are free to enter the market place and sell their goods without charge. The right to take toll (i.e. The Franchise of Toll) is not incident to a market or fair which is granted to the benefit of the public. The franchise of toll is described as a subordinate franchise appurtenant to a market or fair.
A Brief History of Market Rights
In Ireland lawful markets and fairs were typically created by market charter (letters patent). Some of the earliest markets and fairs are to be found in the South and East of Ireland in what is now County Cork, Waterford and Wexford. These markets and fairs date back to the late 12th and 13th Centuries and were created during the colonisation of the area in the Anglo-Norman period. The Anglo-Normans invaded Ireland in 1169 but the introduction of Common Law first occurred in 1171 when Henry II landed at Waterford and declared that the Common law system was “by all freely accepted and confirmed.” The system of “Common law”, (law common to England and Wales) did not apply across the whole of Ireland until the early part of the 17th Century.
By the beginning of the 13th Century new agricultural practices began to improve the lives of peasants who had been shackled and impoverished by the feudal system. They were now able to improve their lot by buying and selling surpluses through the new network of local markets and fairs. The 13th Century actually represents the heyday of Anglo-Norman economic expansion with medieval Ireland seeing a peak in the grant of new market and fairs in 1226 and 1252. The creation of urban markets and fairs led to a movement of population from the countryside to the new towns, driven by the market led economy.
By the end of the 15th Century the Anglo-Norman feudal system was coming to an end with a corresponding decline in the granting of new markets and fairs. Many isolated rural markets fell into disuse and never recovered while others that were more favorably located survived.
The start of the 17th century marks a well known turning point in Irish history. Following the 1601 Battle of Kinsale and the subsequent “Flight of the Earls” many new markets and fairs were created in the so called ‘Peace’ that prevailed from 1603 on-wards. From the end of the 17th century new grants tailed off with the last charters being made in 1852-3. Despite there ancient lineage markets and fairs established by charter and their associated rights and obligations continue to be recognised in legislation and common law today.
The Royal Prerogative
In times gone by a person or a body had to petition the crown in order to be granted the right to hold a market or fair. The grant took the form of a market charter, letters patent or letters close. From 1516 on-wards all grants were made in the form of letters patent. The difference between the two being that letters patent are less formal in nature than market charters although both carry the same weight in law. In Ireland the vast majority of grants were made to Lords followed by Bishops, Town Corporations and Burgesses.
The power and authority of the Crown to grant franchise rights to a subject (a person or body) is known as the ‘Royal Prerogative’. A market franchise created by Royal Charter or letters patent is defined as a royal privilege or branch of the Crown’s prerogative subsisting in the hands of a subject, either by virtue of a grant or by prescription. Historically the Royal Prerogative was the arbitrary and unlimited power of the crown to make law, sometimes referred to as “The word of the King is the ultimate law”.
Following the formation of the Irish Republic in 1937, the Constitution sought to eliminate all reference to the royal prerogative. To all intents and purposes the Royal prerogative did not survive the 1937 constitution as it was seen to be incompatible with a the ethos of a democratic republican state. However the story does not end there. While the Royal prerogative in principle has not survived, there have been many cases before the Irish Superior Courts where judges have had no difficulty in recognising the validity of franchise markets and fairs. It would appear that those aspects of the royal prerogative that are founded in the public interest or are to the benefit of the public and are therefore not incompatible with the general character and ethos of the Constitution have survived and continue to be regonised by the courts. In the past Royal charters were responsible for creating corporations as well as franchise markets and fairs. Today the charters granting the right to hold a market or fair and their associated common law rights and obligations continue to be recognised by the courts and in legislation. Market rights also enjoy the protection of the 1937 Constitution, as a property right, as a market charter provides the legal right to hold a market or fair on land or property. (Article 40.3.2 The state shall protect and vindicate the personal property rights of every citizen).
The Nature of a Market Right
A market right or the lawful right to hold a market or fair has a long history in Common law. In the scheme and practice of law, a market right is described and known as an incorporeal hereditament of a type that is a franchise.
An incorporeal hereditament is a non-possessory right to use or enter the property of another without owning it. Essentially an incorporeal hereditament relates to property rights as opposed to property ownership.
(incorporeal – without form or body, cannot be touched)
(hereditament – something that can be inherited.)
Other common forms of incorporeal hereditaments are Easements. An Easement is the lawful right to make use of the land of another for a limited purpose, such as a right of passage or right of way, or a right of access to water.
A market right, as an incorporeal hereditament, is a right of access to property to hold a market or fair. A market right is therefore referred to as a property right.
The Franchise Market
A market right is also an incorporeal hereditament that is, of it’s nature, a franchise. A lawful market or fair is created as a franchise granted by the Crown or Parliament to an individual or body. The Crown or the State (the franchiser) grant to an individual or a body (the franchisee) the right to hold a market of fair to dispose of commodities.
The franchise provides the owner (the grantee) with the legal authorisation (the market right) to hold a market or fair subject to the terms of the franchise. The terms may include the day, times and location of the market or fair, the commodities that may be sold and the subordinate right to take a toll, stallage or fee from the public trading under the franchise. The franchise also provides the owner with the right to prevent others from interfering with their entitlement to the peaceful enjoyment of their franchise. The owner of a market right may take legal action against any rival market located within a common law distance of 6 2/3 miles from where their market is being held.
The Tort of Disturbance.
During the medieval period the courts decided that the distance a person could safely travel during daylight hours was 20 miles. The day was then split into three parts, the journey to the market, the time trading at the market and the journey home. As a result the maximum distance a person could travel to a market was 1/3 of 20 miles or 6 2/3 miles. While the rationale for this rule has elapsed over time the common law distance of 6 2/3 miles remains. This decision was said to be made for the benefit of the public as it prevented one market from diluting or disturbing the trade and operation of another. If a rival market were held within the the common law distance of 6 2/3 miles, the owner of a franchise market could act to suppress the rival market via a court action known as a “Tort of Disturbance”.
The owner of a market franchise can take a court action for relief or damages against a rival market owner. Such an action is known in law as a ‘Tort of Disturbance’. (A disturbance of the franchise market owner’s entitlement to the peaceful enjoyment of their franchise.) Tort law deals with private or civil wrongs, where an act or omission of one party causes loss or damage to another. A court action taken by an aggrieved franchise market owner results in a court order and legal liability for the person who committed the tortious act. (Such a person may be called a Tortfeasor.)
The Rights of the Public
The owner of a market franchise has the right to hold a market or fair, however the grant is made for the benefit of the public. When a market or fair is held under the terms of a franchise the public has of common right, the liberty of entering the market place and frequenting it for the purposes of buying and selling commodities. The public also has the right and liberty of bringing there and exposing for sale their goods or the goods of others. However the public do not have the right to set up a stall in the market place for the purposes of buying and selling without the permission of the owner of the franchise. Predominantly the owner will have the right to charge a toll or stallage for the use of the soil of the market place. The right to take a toll, or charge a fee is actually separate to the grant of the franchise to hold a market or fair. The ‘Franchise of Toll’ is a separate franchise that is said to be appurtenant to the franchise to hold a market or fair that is granted for the benefit of the public.
If the owner of a market right fails to hold a market or fair that is granted for the benefit of the public, the public continue to have the right to enter the market place to buy and sell commodities under the terms of the franchise. The fact that the owner of the market franchise has chosen not to use their franchise and provide facilities for the purposes of buying and selling does not mean that the public are disabled from their right to form a market. The owner through their non-user of the franchise can not complain that the public are trading without payment of a toll or stallage when no effort was made to collect a fee while the market was being held. If the owner fails to make use of a franchise (non-user) that was granted for the benefit of the public they may also forfeit the ownership of the market or fair to the crown or state. However forfeiture of a market right to the crown or state does not mean that the market right is extinguished, rather it continues for the benefit of the public. While forfeiture of a market right in these circumstances is rare, in the past such circumstance often resulted in the grant of a new similar franchise.
Today most market rights are owned by local authorities. Local authorities have the right under section 7(1) to acquire any market right by agreement or compulsorily. In such cases the local authority is referred to as the market authority. Where a local authority owns a market right it also has to act in the public interest and for the public benefit.
Market Rights by Prescription or Usage
The validity of any claim of market rights can only be supported by a grant of a franchise from the Crown or by Act of Parliament. However the requirement to produce a charter or letters patent by a claimant or their heirs in title is not always necessary. The courts will presume that “Prescription and antiquity of time fortifies all titles, and supposeth the best beginnings the law can give them.”
Rights Immemorial – Immemorial User
It is sometimes the case that a market right is judged by the courts to have been held since time Immemorial. An immemorial right is one that has been used or exercised for such a long period of time, that it’s actual beginning is beyond the reach of memory. In law this means extending back beyond the beginning of legal memory. The first statute of Westminster in 1275 set the beginning of Legal memory at 1189. This date marks the start of the reign of Richard I (Richard Coeur de Lion, or Richard the Lion Heart). In 1832 this date was further clarified as “Whereof the memory of man runneth not to the contrary.”
It is often the case that an original charter or grant may be lost, owing to the ravages of time and the uncertainties of history. If a claimant can show that a market or fair has been held openly and continuously and as of right from time immemorial, the court will presume that the market has a lawful origin in a grant that is now lost. The court will then prescribe the franchise right and title upon the owner. The owner of the right is then said to have a title by prescription. A title by prescription may also be described as prescribed rights or rights immemorial.
Rights Immemorial – Long User
It is however, seldom possible to provide a court with evidence that a market or fair has been held continuously since the beginning of legal memory. Therefore where evidence is given that a market or fair has been held openly and continuously and as of right for 20 years, the courts will assume that evidence of modern user is evidence of immemorial usage. However if evidence is provided that shows that the market or fair was not held at a particular time in the past, or if it is shown that the grant was made since the beginning of legal memory, a claim for immemorial usage or title by prescription will fail.
Lost Modern Grant
The concept and rules of the Lost Modern Grant arose as a result of the number of claims to prescribed rights that were quashed by evidence showing that the right did not exist since the beginning of legal memory. To secure a claim to a market right as a Lost Modern Grant it is necessary to prove that the right has been used openly, continuously and as of right for a considerable length of time, at least 20 years up until the date on which the claim is before the court. The court may then presume a legal origin for the grant subsequent to the beginning of legal memory that is now lost.
Summary
‘Commodities’ or ‘goods’ for sale are not defined under the Casual Trading Act 1995. In 2007 an amendment to the Casual Trading Act introduced mandatory Ministerial Guidelines. Those guidelines state that the lack of a definition means that the term ‘goods’ is to be given the widest possible definition.
Casual Trading Act 1995
Ministerial Guidelines
2. Definition of Goods
Exemptions
Lottery or raffle tickets and Licensed goods such as tobacco and alcohol are excluded from the definition of goods.
Pets are also not allowed to be sold in a public place. Section 23 of the 1965 amendment to the 1911 Protection of Animals Act states the following.
Protection of Animals (Amendment) Act, 1965
Pets not to be sold in any public place.
The granting of a fair or market franchise and the creation of new urban centers, town corporations and boroughs was all part of the rapid economic expansion and regional growth that gave birth to the towns and cities of modern day Ireland. Despite their ancient linage market rights still exist in many towns and cities today and the common law rules established over their 900 year history continue to be recognised by the courts. The granting of market rights played an important role in the economic and cultural history of Ireland and these rights continue to exist despite the removal of all aspects of the royal prerogative from the 1937 constitution. Market rights continue to be recognised by the courts solely because they are in the public interest and were granted to the benefit of the public. The recent High Court case between Toby Simmons and Ennis Town Council 2012 recently clarified the position with regard to the regulation of lawful markets and fairs under the Casual Trading Act 1995. Recent byelaws made under the 1995 Act have also encompassed other aspects of Irish, European law and Common Law jurisprudence. Market rights need no longer be extinguished with the loss of cultural hertiage, rather they can be successfully regulated and preserved to the benefit of all.