Ten Tenths of the Law
It's mine now - you can't have it back
Quimbo Schmokelberg's new analysis of propitious possession
reviewed by Ana Pologia
Ten Tenths of the Law
The latest analysis of “Propitious Possession”
It is known by most people that adverse possession is considered to be 9/10ths of the law. What is less widely known is that propitious possession is 10/10ths of the law, as pointed out, sometimes at excruciating length, by the legendary Quimbo Schmokelberg in his latest legal tome, “Ten Tenths of the Law”. It traces the development of the doctrines of “no takesies back” and “finders keepers” throughout history until its most recent manifestation in US law.
The book develops the idea that this well known universal legal principle has survived into all contemporary codes of law and was variously expressed through the ages in a number of ways. His account borrows freely, and to a somewhat humorous effect, from his experience teaching law students, as they encountered the historical facts for the first time.
To the Romans the law was known as “Dura fortuna si sententia tua mutatur” known to current day law students as the “potato law” after the comical mistranslation as “You can’t talk sense to a potato” but which roughly translated means “One is not entitled to recover that which is freely given” or to paraphrase; “No taksies back”. The famous interaction that gave rise to the formulation of the law was between Salvius Julianus and Publius Iuventius Celsus, leaders of the Sabinian and Proculian schools of law, respectively. Julianus had purchased a sack of encytum (cheese fritters) from a street vendor and shared them with Celsus as they walked to the forum. Salvius consumed his in short order and famously asked for the return of an encytum "volo id recipere" (I want it back). Celsus then famously replied (to the endless amusement of modern day law students) "non hoc tua" (this is not yours).
The English struggled to incorporate the simple Norman phrase "Semel datum, abest" into the Magna Carta choosing to go with the convoluted "party of the first part..." which resulted in the observation 800 years later that "the party of the first part is shit out of luck"
The great Navajo lawmaker “Laughing Lizard” expressed the law as “how-wee hoe so-war car, bar nee hoe nee nar” meaning “Brave who takes back gift is brave indeed” which gave rise to the expression “Don’t be an Indian giver”.
The Romans had a well developed concept of the "No Takesies Back" law. This relief depicts Julianus and Celsus pitching their ideas to Marcus Antistius Labeo (no relation)
Under Norman/French law it was expressed as “Semel datum, abest” meaning “Once given, it is gone”. This was too subtle for the English who translated it for the Magna Carta as “If the party of the first part willingly transfers property to the party of the second part, the party of the second part is entitled to all benefits accruing from ownership of said property while the party of the first part has no recourse under law to recover said property”. This was apparently known to law students as the S.O.L. law where the party of the first part is deemed to be “Shit Out of Luck”. The Magna Carta wording survived almost unchanged in the US Commercial Practices act while both the Hague and United Nations conventions that incorporate these principles have been ratified by the US.
Under this scenario the capricious gifter is the party of the first part and so is deemed to be “Shit Out of Luck".
"how-wee hoe so-war car" – "bar nee hoe nee nar"
the formalised Navajo-Cherokee greeting embodying the concept of propitious possession
The Navajo formed an alliance with the Cherokee nation through their great law giver “Limey Bastard” who adopted the same law. Members of these opposing tribes used a recitation of this law as a greeting and an affirmation of common values. Chief “Itchy Fungus” of the Navajo sealed the alliance by taking “Princess Coco”, the daughter of chief “Blue Hedgehog” of the Cherokee as his squaw.
The greeting recitation was highly formalised as the Navajo brave would take the lead by holding the first and second fingers of his right hand up, palm facing the Cherokee brave in the manner of today’s boy scouts and recite “how-wee hoe so-war car” which was pitched as a question by the gesture of the right hand, so translated as “What of the brave who takes back gift?”. The Cherokee brave then “answers” by touching his same two fingers to his chin and reciting “Bar nee hoe nee nar” which translates as “He is indeed a brave brave”. They would then chuckle at the humorous implication that it could ever be any other way and sometimes embrace, but not in a "Pricky" way.
Quimbo's often whimsical recounting of the origins of the "Ten Tenths of the Law" doctrine clearly shows the universality of the concept that once property is freely given by a legal entity, that entity is "shit out of luck" if they wish to recover that property. Moreover, it establishes that the concept has been universally enshrined into law in every known jurisdiction.
As usual, a tour de force, as we have come to expect from this widely considered "da Vinci of the modern era". I don't think Leonardo would quibble with this characterisation. Bravo Quimbo! "How do you do it?", indeed.
