If landowners waive right to be informed about finds by metal detectorists, is it an unreasonable contract?

Since I ‘totally lost‘ people on Twitter, I’ve had to retreat here to explain myself in more than 140 (or, after everyone’s usernames are included, 80) characters.

Bunkum background

Metal detectorist John Howland discussed the merits of Heritage Action’s Artefact Erosion Counter with the Director of the Council for British Archaeology (CBA), Mike Heyworth; he published the correspondence on a site for ‘treasure hunters (or in these politically correct times, Detectorists)’.

Howland emphasised his own argument, that

there is no legal requirement to report finds falling outside the parameters of the 1996 Treasure Act.[1] Indeed, reporting finds to the Portable Antiquities Scheme is purely voluntary…. Reporting non-treasure finds is simply a moot, academic point, with no legal standing.

Paul Barford and Heritage Action’s Nigel Swift both highlighted Heyworth’s answers to Howland’s questions:

the key question is whether it provides a reasonable basis from which to consider the scale of the loss of knowledge caused by metal detecting when finds are not reported to the Portable Antiquities Scheme (in England and Wales). I think it serves its purpose in this regard….

I regret that it appears to be a minority of metal detectorists who follow the Code of Practice.

As Swift summarised, the CBA ‘considers the Counter “a reasonable basis” and it believes most metal detectorists don’t follow the Code of Practice’.

Cultural losses through licit metal detecting

It’s not my area (geographically or thematically), so I’d hoped to limit it to a tweet, in which I summarised that the CBA’s Heyworth had judged that Heritage Action’s ‘estimate of illicit metal detecting in England&Wales [was] reasonable’.

“Wyatt Vanman” corrected the Facebook feed, ‘[n]ot illicit (that’s minor). Licit!’ (And?) Paul Barford (@PortantIssues) tweeted, ‘not “illicit” metal detecting, but where the loot goes unreported…. “that’s legal innit?”‘

I acknowledged that Heyworth commented on ‘the loss of knowledge caused by metal detecting when finds are not reported to the Portable Antiquities Scheme’; but I tried to address another point.

Irresponsible metal detecting

The first point of the Portable Antiquities Scheme’s code of ethics, for behaviour before metal-detecting, is:

Not trespassing; before you start detecting obtain permission to search from the landowner/occupier…. Remember that all land has an owner. To avoid subsequent disputes it is always advisable to get permission and agreement in writing first regarding the ownership of any finds subsequently discovered.

The first point for behaviour after metal-detecting is:

Reporting any finds to the relevant landowner/occupier; and (with the agreement of the landowner/occupier) to the Portable Antiquities Scheme, so the information can pass into the local Historic Environment Record.

It’s the definition of being responsible.

Since it would be unethical not to report finds to the landowner (and PAS), any ethical contract would require reporting. More than that, I believe that any reasonable detecting contract would require reporting.

Metal detecting under unreasonable contracts

I am not a lawyer, or an expert in law. Nevertheless, the UK’s Unfair Contract Terms Act (1977) states that ‘the right to transfer ownership of the goods, or give possession… cannot… be excluded or restricted by reference to any such term except in so far as the term satisfies the requirement of reasonableness’. So, one person cannot take ownership of another person’s goods through the use of an unreasonable contract.

The law’s test of reasonableness is that ‘the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made’. So, a contract can only be reasonable if all of the parties to the contract made a free, informed choice to agree to the contract.

Reporting of non-treasure finds as well as treasure finds is necessarily in the landowner’s (if not cultural, then still financial) interest. I do not believe it is likely that a landowner would make a free, informed choice to waive their financial rights (completely) in order for a metal detectorist to profit (solely). Hence, I believe that a detecting contract that did not require reporting would (probably) not be reasonable.

Is it reasonable for a landowner to ill-informedly waive their (commercial) property rights? Is it unethical, but nonetheless legal, “good business” for a metal detectorist to operate under a contract not to report finds to the landowner (and PAS)? Or is it unreasonable for a metal detectorist to more or less actively trick a landowner into waiving their rights?

If a contract not-to-report were an unreasonable contract, then it would be an invalid contract. In that case, the unreported metal detecting would be not only unethical but illegal.

Update (25th March 2013)

Paul’s ‘not so sure about the final development of the argument’. Me neither. I fear landowners’ ignorance might be judged to be their own fault, like a car boot seller’s sale of a valuable antiquity for a rock-bottom price. But if it really is a case of ‘”seller” beware’ (waiver-of-rights beware), does no-one have any responsibility to make them aware of their own rights?

Update (28th March 2013)

Reassuringly, in a (longer) comment on Paul’s post, Nigel Swift’s agreed that:

it seems unlikely that a contract in which one party is not making an informed choice can be legal, especially if the other party is deliberately withholding crucial information.

It’s very clear that the NCMD [National Council for Metal Detecting] and other contracts don’t set it out clearly for the farmer that non-treasure items[1] can be very valuable. The 50% reward in the case of treasure bedazzles and diverts from the vastly more numerous and sometimes far more valuable treasure items yet some contracts provide for ALL non-treasure items to go to the finder.

Footnotes

1: A summary of the Portable Antiquities Scheme’s summary definition of treasure is:

  • any group of prehistoric metallic objects that are made of any metal;
  • any individual prehistoric metallic object that has any precious metal;
  • non-coin metallic objects that are at least 10% precious metal (gold or silver) and are at least three hundred years old;
  • groups of more than ten coins that have less than 10% precious metal and are at least three hundred years old;
  • any group of coins that have at least 10% precious metal and are at least three hundred years old;
  • any objects ‘that are less than 300 years old, that are made substantially of gold or silver, that have been deliberately hidden with the intention of recovery and whose owners or heirs are unknown’; and
  • any object of any material that is or was with another treasure find.
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