The Lunar Consideration

1Instructions & background

We are instructed jointly by Finance and by the Board in the matter of the retainer recorded at SW8-X-002, under which the agency provides ongoing search and performance services to the counterparty there described (“the Client”), and under which the agreed consideration is expressed, in the executed terms, as “one (1) moon, Client’s choice of moon”. The Client has tendered the consideration. Finance, unable to enter a natural satellite into the nominal ledger, has provisionally recorded it as goodwill and placed it “in escrow.” It has phases.

We are asked three questions. First, whether the agency may lawfully take, hold, and in due course realise title to a moon by way of fee. Second, whether the retainer is, in consequence, enforceable. Third, what must be written down, and where, and what must not. This memorandum answers all three, and appends the instrument by which the matter is, in the event, resolved.

2The difficulty at terrestrial law

At English law the consideration is, on the orthodox analysis, incapable of vesting. The governing principle is not domestic but treaty: Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (1967) provides that outer space, including the Moon and other celestial bodies, “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) goes further, declaring such bodies the common heritage of mankind and the placing of property thereon ineffective to create title. The domestic licensing regime (the Outer Space Act 1986; the Space Industry Act 2018) licenses activities; it confers no proprietary interest, and was not drafted in contemplation of a celestial body arriving as accounts receivable.

Consideration must be “something of value in the eye of the law” (Currie v Misa). A moon is, self-evidently, a thing of value; the defect is not in its worth but in its conveyability. It is neither “goods” within the Sale of Goods Act 1979 (it is not, on any reading, an item ordinarily in trade and capable of delivery) nor “land” within any estate the law of England can grant. There exists no terrestrial mechanism by which a private company may acquire title to a celestial body; the purported consideration is, at home, a nullity. On the strict view the retainer is therefore exposed to challenge for want of consideration — a difficulty mitigated, but not cured, by the part-performance already rendered and accepted. Finance’s treatment of the asset as “goodwill in escrow” is a fiction of convenience and must not be mistaken for title.

3On-world counsel

We have taken the opinion of terrestrial commercial counsel, Greer, Vane & Thorold LLP, who advise (we summarise) as follows. The agency must assert no proprietary interest in any UK filing, return, or published account, the State’s treaty obligations notwithstanding the company’s inability to perfect title in any event. The asset should be carried, if at all, as a contingent and unquantified right exercisable off-world only. Any attempt to bring the moon within the charge to tax should be resisted as premature, there being, in counsel’s phrase, “no disposal, no acquisition cost, and no satisfactory way to describe the asset to an inspector without the meeting ending early.” Counsel’s closing note records that the matter is “the most interesting thing to cross this desk and the least reportable.”

4Off-world counsel

Through the good offices of the Client we have also taken the opinion of the Office of the Reconciler of the Sirius Circuit, a juridical body of the galactic common law (the Lex Caelestis, or, in the vernacular, the Common Law of the Spur). The Reconciler advises that the difficulty is entirely local. The moon is a “well-found movable body”; its conveyance from one party to another is among the most routine transactions the Lex contemplates, satellites having been pledged, gifted, dowried, and paid in settlement across the Orion Spur since long before terrestrial law began. The conveyance here is good and the title clean; the only defect is that one party’s home jurisdiction does not yet recognise the class of property — a parochial limitation the Lex treats, the note records, “with sympathy, and a measure of amusement.”

5Governing law & reconciliation (conflict of laws)

The two systems being capable of producing opposite results upon the same facts, the parties have agreed, and we advise, the following order of precedence, which the executed instrument adopts:

• Primary submission. The agreement is submitted to the law of England and Wales in every matter that law is capable of governing.
• Fallback. In any matter where English law is silent, is incapable of taking effect, or stands in conflict with the Lex Caelestis, the Lex Caelestis shall govern and shall prevail, to the extent of the conflict and no further.
• Preservation. The English-law characterisation of the consideration (as goodwill, held in escrow, non-described) is preserved for terrestrial reporting purposes only, and is without prejudice to the title that subsists, and is good, off-world.
• Severance & perpetuity. Should any term fail at terrestrial law, it is severed there and survives under the Lex, which knows no rule against perpetuities and is content for the title to run for as long as the moon does.

The effect is that the retainer is enforceable and the title to the moon is good — under galactic law — and is merely unreportable under our own. The agency owns a moon. It owns it correctly. It simply cannot say so on a form.

6The instrument

The conveyance is effected and sealed by the following instrument, executed in the Common Speech of the Orion Spur and reproduced here in transliteration with an English gloss. We are advised that the instrument is self-executing upon competent reading: the moon passed at the moment the seal-line was first read aloud before a witness of the Spur, which has occurred, and which cannot now be unread.

su’un vael — kor threnu na witnes-Spur.
oru-kor:  SÎL·VAEL   (threnan: “the lone wanderer”) — moru’a-kor, the payer.
oru-tan:  ESS·VEYT    (threnan: “the eighth-ward makers”) — moru’a-tan, the payee.
vael-threnu:  an luna — an-tu luna, kor-threnan oru moru’a-kor —
              vael-kor na lex-cael, threnu-threnu, na perpetu.
kor-seal:  na hand-of-Reconciler, Sîrius-circuit;  entu na Roll-of-Movable-Bodies.

7The subject matter

For the avoidance of doubt as to which moon has passed, the Client has nominated, and the instrument has fixed, the body described below. It is a small satellite of an inhabited primary in the Sirius system, lying in the gravitational neighbourhood of the white-dwarf companion, Sirius B. The Client describes it as “a good moon, and quiet,” and notes that it “travels well.”

8Access & taking possession

Title and possession are, here, sharply divided. The title is good; the possession is theoretical. The body lies some 8.6 light-years distant, about another star, within the jurisdiction of an inhabited primary whose leave to approach has not been sought; no terrestrial means reaches it; and the gate programme’s dialling regime cannot presently resolve so distant a node, attempts to reach further always collapsing back onto destinations already attained. In delivery terms, access is a hard dependency that the agency does not, today, own.

This is, we are instructed to record, “a delivery dependency we are scoping with partners.” The agency’s off-world relationships — the Client itself, and others met through the museum’s wider dealings — may, severally or together, be able to resolve transit and the question of leave to land. Counsel offers no view on which partner; only that the matter should be pursued as access, not as title, the latter being settled. Separately, and to the same end, the agency has lately come into a vessel of its own, which is set out in the annexed dossier and which may bear materially on the question of access: see The Saucer (SW8-L-002).

9Advice

We advise that the agency (i) assert no title to the moon in any terrestrial filing, and maintain the goodwill-in-escrow characterisation for home purposes; (ii) rely upon the instrument at clause 6, which is good and which has sealed; (iii) treat the retainer as enforceable, the consideration having passed under the governing fallback; and (iv) pursue access, separately, as a delivery matter, through partners. The agency holds good title to a moon it has never seen and cannot presently visit. This is, on the whole, an improvement in the agency’s position, and is filed here, where a thing may be true without being reported.