A "market" or "mart" and a "fair" are each at common law a franchise right of having a concourse of buyers and sellers, to dispose of commodities in respect of which the franchise was given. The terms are, strictly, applicable to the right itself and not to the concourse or to the place where it assembles. The only distinction between a market and a fair is that the latter is a held once or twice a year, whilst the former is smaller and held once or twice a week.
In the reign of Edward III. " statute fairs " or " hiring fairs " arose they were held in the spring and autumn to proclaim the rates of wages fixed under the Statute of Labourers, they had nothing in common with the francise of a concourse of buyers and sellers. A mart seems to be the same as a fair : Coke called it ' a great fair holden every year ' the term is now used in connection with livestock markets . A wake is a concourse held usually on feast days, but is not a franchise in the sense of a market and does not enjoy the same protection .
Every member of the public has of common right the liberty to enter and frequent the market place to buy and sell such commodities as are saleable there, but this does not entitle anyone to erect a stall or otherwise exclusively occupy any part of the market area.
Markets and fairs are of ancient origin, both Anglo Saxon and Norman Laws, confined buying and selling to the towns and cities and required the presence of witnesses. As under Roman Law order and prevention of bad behaviour ( ' ubi est multitudo, ibi debet esse rector' ) were important, by the thirteenth century the holding of a court became incident to every market and fair .
Markets and fairs are controlled by custom the common law and in part by statute, there are four ways markets may have began the law depends on the type of acquisition .
(1) By grant from the Crown
The royal prerogative has always had power to grant to subjects the right of holding a market or fair; such a market or fair is a franchise;
(2) Acquisition by prescription, usage or lost grant
Documents suggesting a grant from the Crown : When the market has been held since the reign of Richard I. 1189 uninterrupted use raises a presumption in favour of prescription of a lost grant , if uncontradicted 20 years usage is sufficient evidence .
(3) Acquisition by local Act of Parliament
Many Parliamentary Acts have been passed for the express purpose of establishing and regulating a market or fair; such Acts usually, incorporate the whole or some part of the Markets and Fairs Clauses Act 1847 ; If abuses arise in connection with statutory markets and the statutes regulating them recourse may be had by the Attorney-General or Parliament .
(4) Public Acts
The Food Act 1984, Pt III (ss 50-61), gives power to local authorities to provide market-places and make byelaws for the purpose and to take stallages, tolls and other charges in respect of the use of the market; A market cannot however, be established under this Act which would interfere with any existing market rights enjoyed by any person in that area.
The Animal Health Act 1981, s54, Vol 2, title Animals, A wharf or other place are "markets" within the meaning of the term, and are, in England, under the supervision of the Ministry of Agriculture, Fisheries and Food, and in Scotland and Wales, under the supervision of the Secretary of State.
Tolls and Stallages.
Toll is the right to payment on the sale of goods, the right to toll is a subordinate franchise appurtenant to a franchise of market or fair. It may be acquired by express grant from the Crown, by statute, or by prescription. It may also be acquired by long usage giving rise to the presumption of a lost grant; in such a case the court or jury may find either that the amount of the toll was specified or that it was to be of "reasonable amount [(Lawrence V Hitch (1868) LR3 QB 521,9 B & S467). Reasonableness is a question of law, and a grant of toll is void if it is an unreasonable amount. See generally 29 Halsbury's Laws (4th edn) paras 629 et seq.]
Payments for the exclusive occupation of space in markets are known as "stallage", "piccage",
"pennage" and "rent". These payments are collected ratione tenurae and
not by virtue of any franchise. The amount due may be fixed by charter or by reasonable agreement between the parties
concerned . For descriptive details as to these various forms of occupation and incidents relating thereto, [ 29
Halsbury's Laws (4th edn) paras 637 et seq : The Food Act 1984, ss 53-55.]
A franchise market or fair or the right to take tolls may be transferred or leased, but as these are incorporeal hereditaments such transfer or lease must be by deed (Law of Property Act 1925, ss 52, 205(1)(ix), Vol 37, title Real Property (Pt 1)). Unless authorised by statute, no public body may alienate market rights vested in them for the benefit of the public, and local authorities cannot alienate the statutory market rights under the Food Act 1984, Pt III.l (ss 50-61); see .Spurling v Bantoft [1891]2 QB 384,60 LJQB 745.
Disturbance of markets
and fairs.
The common law distance measured from a market is six & two third miles which is applicable to both charter and statutory markets creating a monopoly . (Northampton Borough Council v Midland Development Group of Companies Ltd 1978 ; 76 L.G.R.750 ) A market is entitled to peaceable enjoyment disturbance may consist of obstruction or interference with the right to hold the market or fair and collect tolls. The setting up of a rival market, the sale of marketable goods other than in the lawful market, may amount to legal "disturbance". In regard to statutory markets, provision is generally made in the special Act itself or by incorporating the terms of the Markets and Fairs Clauses Act 1847, by which all statutory markets are protected against disturbance. [29 Halsbury's Laws (4th edn) paras 649 et seq.]
Forfeiture, and extinction
of the market.
The main grounds giving rise to forfeiture are:
(i) Extinction by an act of Parliament when an Act of Parliament by implication creates similar rights or larger
rights of the same character in favour of the grantee. The same applies to franchise tolls.: (ii) Abuse of the
franchise, such as neglect, failure to provide adequate accommodation, the holding of a fair on additional days
; the holding a fair outside the lawful area .
Forfeiture to the Crown does not extinguish the right of holding a market or fair; it remains in the Crown and
may be re-granted.
The Home Secretary is empowered, by consent of the owner of a fair or of the tolls payable in respect thereof,
to make such an order for abolition ( The Fairs Act 1871, s3). [ 29 Halsbury's Laws (4th edn) paras 661-668. ]
The Holding of Markets and Fairs
Fairs granted from the Crown may only be held upon the days specified markets are usually granted to be held upon a particular day in the week, the proper hours for holding markets and fairs being ( dies solaris ) sunrise to sunset. Any change of date must be lawfully effected, otherwise the market or fair is liable to be forfeited to the Crown. No toll can be lawfully claimed in a market or fair held on the wrong day; and if held beyond the due time the fair is liable to be seized by the Crown until payment of a fine.
In the thirteenth century it was decided that Sunday trading was wrong, and consequently it often occurred that changes were made in favour of weekdays . The Sunday Fairs Act 1448, which forbade the holding of fairs and markets on Sundays and High Feast Days, was repealed by the Statute Law (Repeals) Act 1969,s 1, Schedule, Pt IV, Volume 41, title Statutes, but the repeal is not to have the effect of requiring any market or fair to be held on, e.g., a Sunday, and certain other Holy Days; and a market or fair may continue to be held on any day on which it might lawfully have been held if the Sunday Fairs Act 1448 had not been repealed; see s4(l) of the 1969 Act.
Changes of date may be lawfully authorised by licence or charter, the Secretary of State, may make an order accordingly (Fairs Act 1873, s 6). Arrangements as to the proper dates for holding markets and fairs are generally incorporated in the special Act incorporating the provisions of the Markets and Fairs Clauses Act 1847.
Right of removal.
Whenever a market or fair is granted to be held within an area the owner has a general right where the old market-place has become inadequate to (It may become the duty of the owner to do so) remove his market or fair to a new place so long as it is within the limits and he provides convenient accommodation for all who wish to buy and sell; (Mosley v Walker (1827) 7 B & C 40,9 Dow & Ry KB 863). Removal is unlawful if the new market place is not as unrestricted and free as the old, where the public are deprived of any right or privilege.
The owner of a market may enlarge his market-place, within the prescribed limits, they may even be held upon a dedicated highway, as long as they are not a nuisance (William's v Wednesbury (Churchwardens and Overseers) . The Crown cannot derogate from its earlier grant a new market can only be legally granted to provide for surplus accommodation, beyond what the old market can afford, a market can not be extended so unreasonably as to lose the benefit of the concourse of buyers and sellers . [West Bromwich Union Assessment Committee (1890) Ryde Rat App (1 886-90) 327). See further 29 Halsbury's Laws (4th edn) paras 681-685.]
Byelaws and statutory
regulations.
Originally the courts of pie powder administered the regulating of the market, but these powers have now been surrendered. District and borough councils who maintain markets, whether or not they are market authorities as defined in the Food Act 1984,s61, may make byelaws under s 60 of that Act.
Markets, authorised by special Parliamentary Acts which incorporate the Markets and Fairs Clauses Act 1847 will use s 42 . to construct or regulate the market or fair may from time to time alter or repeal byelaws
Livestock auction markets are contained in the Agriculture Act 1967,sl, Sch 1,para 9, Vol 1,title Agriculture (Pt 1).
In 1847 there was passed the Markets and Fairs Clauses Act 1847, by which the remainder of the law on this subject was consolidated for incorporation in special Acts passed to regulate the holding of markets and fairs. The latest measures for controlling the proceedings at markets and fairs are the Markets and Fairs (Weighing of Cattle) Act 1926, and the Food Act 1984, Pt III (ss 50-61).
Weighing and measuring.
The undertakers of public markets are required to provide proper weights and measures and scales and also proper machines for weighing carts in which goods are brought to the market; see the Markets and Fairs Clauses Act 1847,ss 21, 24, Provisions designed to safeguard the public in respect of weights and measures are also contained in the Food Act 1984, ss 57-59, and the Weights and Measures Act 1985,ss 18-20, Vol. 50, title Weights and Measures.
Special duties are imposed in regard to the weighing of cattle; see the Markets and Fairs (Weighing of Cattle)
Acts 1887 to 1926. For the Acts which may be so cited, see the Introductory Note to the Markets and Fairs (Weighing
of Cattle) Act 1887. Although proper accommodation for weighing cattle must be provided under the Markets and Fairs
(Weighing of Cattle) Act 1887, s4, which is now of limited application, there is, at common law, no obligation on the owner of a market to provide stables or pens for cattle [ Brackenborough
v Spalding UDC [1942] AC 310, [1942] 1 All ER 34. HL ]
Returns.
Annual returns in respect of dues must be made to
the Secretary of State by local authorities in respect of markets held by them (Local Government Act 1972,s 168,
Vol 25, title Local Government). Under the Animal Health Act 1981, s 54(6), Vol. 2, title Animals, local authorities
must make periodical returns of receipts and expenditure to the Ministry of Agriculture, Fisheries and Food, in
relation to England, and to the Secretary of State, in relation to Scotland and Wales.
Annual returns of receipt and expenditure are also prescribed by the Markets and Fairs Clauses Act 1847,s 50.
Livestock markets.
Markets in which livestock are sold are now controlled by the Meat and Livestock Commission, established under the Agriculture Act 1967,sl, Sc. 1, Pt 1, Vol. 1, title Agriculture (Pt 1).
London.
Modern legislation in regard to markets and fairs may be said to have began with the Metropolitan Police Act 1839, which deals with markets and fairs within the Metropolitan police district . According to this statute the business and amusements of all fairs held ( as to which, see the note to s 38 of that Act), must not begin before 6 am and must cease not later than 11 p.m.
Pedlars and hawkers.
A pedlar is someone who sells on the move and not from a stall the code regulating sales is the Pedlars Act 1871 and the Pedlars Act 1881, provision is made for the granting of certificates, the duties of pedlars are prescribed in the Pedlars Act 1871,ss 17-19. [ 29 Halsburys Laws (4th edn) paras 711-716 ]. The Markets and Fairs Clauses Act 1847 sec 13 Every person other than a licensed hawker is prohibited to sell any article in which tolls are authorised.
