Common Law Markets and Fairs
There continue to exist ancient common law rights to hold a market. The right is a franchise which permits the holding of a market of buyers and sellers of the goods to which the market relates. Many such rights are now held by local authorities and other quasi-public bodies.
A fair is a franchise giving the right to hold a market to a group of buyers and sellers. There is very little difference in principle between markets and fairs. Every fair is a market but every market is not a fair.
A fair is generally a greater sort of market usually held once or twice a year. A market may be held more regularly being a lesser gathering.
Origin of Right
The right to hold a market is in the nature of a property right. A franchise market or fair can be transferred by deed. Public bodies who hold such rights may not have power by their constituent statute to transfer it. Many market rights are vested in local authorities.
The Crown had a prerogative right to grant the right to hold a market or fair. Generally, the Crown undertook an inquiry before making a grant. A jury might be convened for certain fact-finding purposes. The right to grant a market has devolved to the State.
A market can arise by long use by way of prescription. It may be presumed to have been granted by the Crown, even if it was not, if it has continued since time immemorial. There is a legal fiction of a lost grant.
The principle is similar to that in respect of easements at common law. Prolonged modern use may raise a presumption of a market since time immemorial (deemed the end of the reign of Henry II; 1189). However, the claim might be rebutted, by proof that this could not be the case.
Origin of Right II
The right to hold a market may be conferred or confirmed by Act of Parliament or the Oireachtas. The right to hold a market may have been granted by a local Act of parliament or the Oireachtas. The Markets and Fairs Clauses Act 1847, provided terms and conditions for incorporation in local acts in respect of markets and fairs.
Franchises for fairs and markets may be regulated by the particular local act. The persons authorised to hold the market or fair might have been given powers of compulsory acquisition and construction.
Many market rights are held or have been acquired over time by local authorities. A local authority may carry on, manage and regulate markets and fairs owned or regulated by them.
Rights and Duties of Holder
The franchise may give the holder a monopoly in respect of the market. The holder of such a right can veto another market or fair which is inconsistent with his right. In this case, he has a legal action against third-persons who interfere with the holding of the market or the collection of profits.
The holder of a market right has the right to hold a concourse of buyers and sellers for the purchase and sale of the goods concerned. He has the right to regulate the market, including in most case, the commodities sold. He has the general direction of the market.
The holder has the duty to provide a place for the holding of the market of a size sufficient for the convenient accommodation of those who buy and sell at it. These rights may be limited to places defined by the metes and bounds of the market, in which event, his duty applies within the areas concerned.
Tolls and other Rights
Tolls are in the nature of a franchise. They are payable on goods brought into the market for sale, whether or not sold. The right may be acquired in the same way as the marker franchise right itself. The toll must be reasonable. An unpaid toll is a debt. There are certain exemptions from common law tolls. They included the Sovereign (now the State).
Payments for the use and occupation of the site for the purpose of exposing goods in a market may be stallage, piccage, pennage, or rent. The amount is fixed by custom or statute. It may be payable in money or in some cases, in kind. A permanent stallholder may be liable for local authority rates.
Pennage refers to the right to erect pens. Stallage refers to a rent for the erection of a stall or place for cattle or goods. The right to stallage arises by virtue of the market right itself and does not require a toll or additional right.
In the case of fairs and markets held under statutory authority, the local Act and 1847 Act regulates the right to charge tolls. The stallage rents and tolls may be changed from time to time within the limits of the special local act.
The legislation provides for the levy of distress on things belonging to the stallage holder. The rent/toll may be recoverable as a civil debt. Elements of the legislation may be unconstitutional in modern times.
Interference with Market Right
The owner of a market may take legal action against a person who obstructs or interferes with his rights. A common law right to a franchise for a market or fair carries the right to take action for disturbance if a rival fair is held within a distance of seven law miles.
Where a market fair is held within this distance on the market day, there is deemed a disturbance and it is not necessary to prove actual damage. Outside of this distance, actual damage is required to be proved.
A person who operates outside the market or fair with the intention of taking advantage of it without paying the rents may be liable for disturbance. It is not disturbance for a person to sell in the ordinary course of a business in a shop at or near the market /fair.
In some cases, by the custom of market ,the owner of the market may have the right to prevent sales of market commodities on market days in shops in the market town. It is a defence at common law that sufficient commodities were not provided in the market.
Under the statutory provisions, the market owner usually has a similar exclusivity, enforceable by a claim for disturbance. It is an offence punishable on summary conviction under the statute for a person other than a licensed pedlar or hawker to sell and expose goods for sale within the market bounds other than in a shop.
Market and Fair Days
Markets and fairs must be held on the days permitted. The Attorney General may take action to suppress the holding of a market or fair on an unlawful day. The holding of a market or fair on an unpermitted day is likely to be a nuisance and subject to enforcement by the local authority and Gardai on numerous grounds (e.g. road traffic, planning control, obstruction of highway etc.)
The Minister may change the market/ fair days, bound and place by order. Notices must be published in Iris Oifigiuil and in three successive weeks in a newspaper of the county, city, or county of a town in which such market is held, or if there be no newspaper published therein, then in the newspaper of some county adjoining or near thereto, before such representation is so considered.
In the case of markets fairs under the local legislation, the Markets and Fair Clauses Act and the relevant local act may allow flexibility in relation to the fair and market days.
The holder of the market / fair rights need not necessarily and will not usually own the relevant land. It may be held on part of a highway depending on the terms of the market and the case of a statutory market, the place established by the local act.
The limits of the market or fair are defined by the grant. They are its metes and bounds. The owner of the market may have the right to move the fair to a different place provided this is within the defined limits.
The rights in respect of a statutory market depend on the particular local legislation.
Persons and bodies authorised to regulate fairs under the Markets and Fair Clauses Acts may make bye-laws
- regulating the use of stalls and stands;
- to prevent nuisances and obstructions;
- fixing the relevant dates and hours of the market and fair;
- inspection of slaughterhouses and maintenance of hygiene;
- regulating carriers;
- regulating weighing machines.
The bye-laws require the confirmation of the Minister. Bylaws must be published in a prescribed manner. Breach of the bye-laws is punishable by a small fine.
The Markets and Fair Clauses Act makes it an offence to obstruct or interfere with persons appointed to superintend and keep order at the fair.
A franchise of a market or fair can be lost by neglect non-use, continued failure to provide the relevant accommodation, an unauthorised change in the market day, holding a market on additional days beyond that authorised or the taking of excessive tolls. An active marker or fair may be abolished or suppressed by Act of Parliament.
A local authority may extinguish market rights owned by it. It may not extinguish other market rights unless it provides alternative facilities in the same vicinity as the market or fair, including facilities reasonably corresponding to those for the market or fair concerned.
Where a local authority proposes to extinguish a right, it must give notice to the persons concerned and must publish notices. The persons concerned may object within 21 days and appeal to the District Court. The Court may if it is of the opinion that notwithstanding that an alternative facility is being provided, determine that it constitutes an undue interference with the facilities enjoyed by the public and may prohibit the extinguishment or imposed condition.
A local authority may acquire any market right for a market or fair compulsorily or by agreement. The compulsory purchase legislation applies to the acquisition of the right. Where a market right has not been exercised for 10 years, it is regarded as extinguished.
Special Market Rules
Under the Sale of Goods Act, where goods are sold in an open market according to the usage of the market, the buyer who buys in good faith without notice of defects or want of title, takes good title. His rights may be defeated if the goods are stolen. An action for conversion by the true owner lies against the seller.
A general order for exemption may be granted under liquor licensing law allowing the sale of intoxicating liquor at a market or fair.
There are provisions in the 19th Century markets and fair legislation which has been eclipsed by modern food safety standards for the sale of food. An application may be made to the District Court to enforce the stanrardsa
Weights and Measures
There is a duty on the owner or manager of the fair to provides weights and measures and pounds for weighing goods. Undertakers are to provide weighing houses or places for weighing commodities sold at the fair and keep proper weight scales and measures, et cetera. This is subject to modern legal metrology legislation.
The Markets and Fairs (Weighing of Cattle) Act, 1887 et cetera place an obligation on the holder/ authority to provide sufficient provisions for weighing cattle at the fair. Persons buying cattle may require them to be weighed. Tolls and fees may be charged for weighing of cattle.
Under the Sale of Horses Act 1705, the proprietor of fair and market “ouvert” is to appoint a certain open place where horses are sold and appoint a toll-keeper there from ten till sunset, to enter sales, gifts or exchange of horses.
The parties to the sale must before sunset on the day of the sale come together and bring the horse to the toll keeper, so that the requisite particulars can be entered. The horse is to be produced, and in presence of that toll-keeper, there is to be entered in a book their name, the colour and special mark of the horse. The requisite particulars include details of names, addresses, and particulars of the horse.
There are special provisions in ancient statutes for the recovery of horses sold in the open market which have been stolen.
References and Sources
Halsbury’s Laws of England 4th Ed Vol 29