Personal Property Notes 2018 PDF

Preview

Summary

Personal Property Notes 2018:The concept and nature of property: property has two distinguishing qualities, it is a assignable or transferable right where property is regarded as assets which views them as a contractual right, it is enforceable. Property must have a corpus and occupy space.  Rights...

Description

Personal Property Notes 2018:

      



 

  







The concept and nature of property: property has two distinguishing qualities, it is a assignable or transferable right where property is regarded as assets which views them as a contractual right, it is enforceable. Property must have a corpus and occupy space. Rights in personam are in principle demandable only from the person against whom they originally arose or someone representing them. Law relating to this is better known as law of obligation Rights in rem are in principle demandable wherever the thing is found hence against anyone who has it or is interfering with it. To put it at its simplest, property law is about the legally recognised relationships we have with each other in respect of things. Property rights must relate to things extrinsic to us. On that basis our bodies and our body parts, our reputation, etc, though valuable cannot be the subject of property rights. Occupation/possession: possession is 9/10th of the law. Labour: when person exerts his energy in appropriating within god’s created universe becomes his individually acquired possession. John Locke- hard work has its reward. However more is required for the acquisition of prop than just labour: ingenuity, luck. Economic: efficient use of resources. It posits that private property was an essential stimulus to production. individual enterprises are as a rule more successful than communal ventures. The difficulty with this theory is that it does not take into account government intervention in regulating commerce, and the equitable redistribution of resources. Social relationship and disposition: The relationship factor implies the correlation of rights and responsibilities and the recognition on the part of members of society not to interfere with a person’s enjoyment of a right. Disposition also goes to the issue of the power of transfer and alienation of property and exclusion of other people from the property. Prop rights and contractual rights: prop rights are over things, which attach to things and bind other people besides the parties involved. Contractual rights are between people and enforceable between particular individuals. Licences and contracts: a licence is situation where landowner(licensor) gives permission to another (licensee) to carry out certain activity on the land which but for permission would be trespass. Bare (permission to camp on land)- contractual (purchase of ticket to view a movie) and - licence coupled with an interest. The last type, licence coupled with an interest, profits a prendre for example creates an in rem right which cannot be revoked. Personality: property enables individuals to prove their worth through self-exertion as an expression of self. A person stamps his or her personality on what he or she acquires and is identified and defined by the acquisition. Property in human body and parts: New species of property continue to emerge, a testimony to the difficulty in providing a definition that will be good for all times: Moore v Regents of the University of California; Doodeward v Spence. In respect of personalty the Personal Property Securities Act 1999 states in s4 that personal property “includes chattels paper, documents of title, goods, intangibles, investment documents, money and negotiable instruments.” Section 119 of the Contract and Commercial Law Act 2017 defines goods to include “(i) all kinds of movable personal property, including animals; and (ii) emblements, growing crops, and things attached to, or forming part of, the land that are agreed to be severed before sale or under the contract of sale; and (iii) computer software; but (b) does not include money or things in action.” For the purposes of the Crimes Act 1961, under s2 “property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest”. Moore v Regents of the University of California the issue was whether Moore has any cause of action against the doctor. It was decided that he had, but the majority held that he had only a personal action for breach of the doctor’s disclosure obligations. The issue that divided the majority from the minority was therefore whether Moore could be said to have property rights in the cells which had been removed from his body. A person cannot be said to have “property” or “ownership” in his own body cells once they have been excised from his body. Oxford v Moss - University of Liverpool, Student dishonestly took exam paper. Alleged the student stole the information on the paper, not the paper. Property in confidential information in an exam paper(?). Not theft because he intended to return it. This is because the definition of “intangible property” under the Theft Act (UK) did not include confidential information. Doodeward v Spence (1908): Ratio: (High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle. Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful











possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.’ Higgins J (dissenting) said that no one could have property in another human being, live or dead. Cowell v Rosehill Racecourse (1937): the Plaintiff had bought a ticket to enter the racecourse and watch the races. It was alleged that he had misbehaved and so he was asked to leave, which he refused to, as a result, he was removed. The Plaintiff sued the racecourse operator on the ground that as a licensee he had a right or permission to be on the premises, that the contract element of the license was a promise by the racecourse operator not to revoke that permission, and that in breaching that promise the licensor had assaulted the licensee. The licensee therefore sought damages for assault. The Court held that the licence was a mere permission to enter. The contract gave the Plaintiff a right to remain as long as he behaved. When he misbehaved and refused to leave, his licence was revoked and he became a trespasser. The racecourse operator had the right to evict him. In the circumstances, as no more force than necessary was used, no action for damages would succeed. Hohfeld Fundemental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays: he argued that right and duty are often correlative concepts. personal rights are enforceable against “a single person or one of minuscule aggregations of identical rights that are enforceable against “a few definite persons” whereas property rights comprise “a large class of fundamentally similar yet separate rights which correspond to the obligations of “a very large and indefinite class of persons.” International News Services v Associated Press: both were competitors in gathering and distributing news in USA. AP claimed an injunction, inter alia, to restrain the D from copying news reports from bulletin boards and from early editions of its members news papers. DC did not grant injunction, taken all the way to supreme court where Mr Justice Pitney held that in considering the general question of prop in news matter, it is necessary to recognize its dual character, distinguishing between the substance of info and form of words in which writer has communicated it. The news element is not creation of the writer. Held valuable property interest in news cannot be maintained. News of current events is common property. Generally when two parties are in business they are expected to conduct their business so it does not unfairly injure the other parties. Cohen in “Dialogue on Private Property”: He questions whether private property exists or whether it is a construct of the mind, he differs slightly from Blackstone who argued private property a mans control over a thing Cohen says its not only that but it can be intangible-copyright, patents, he says its to do with social relations. Social relations he said it’s the relationship between two parties that makes the content youre discussing property, it is the right to include and exclude someone from prop. Property and wealth, economic value is not necessary for it to be defined as property. He also talks about rights to sell is not distinct form of property, sometimes you own something but cant sell it- prop in a trust, leases. He concludes that label of property can be attached if you can keep off X unless you give permission with can be granted or withheld signed private citizen and endorsed by the state. Exclusions which individuals can withhold and impose that the state endorses. Gray, “Property in Thin Air” [1991]: Kevin Grey states in Property in thin air on page two of his journal that ;" whatever the maxim cuius est solum .... to the common lawyer of earlier centuries it has since become obvious that its legal meaning is now heavily qualified by the advent of more recent technologies “ he acknowledges like Sprankling the lack of knowledge in Blackstones era in regards of geology also that science and technology has progressed to a level so advanced , Grey recognises that which , although it is hard to determine land in the modern world we need to take a logical and clear approach. Grey notes that for legal purposes there must be a clear distinction between the upper and lower stratums of airspace although it is agreed that the maxim cuius est solum ... has no relevance at all to the Higher of the strata and if the “usque as coelum" was to be taken seriously it has now been restricted to landowners rights over airspace are clearly restricted to the"lower sratum" which is basically the immediate superadjacent airspace which the landowner can reasonably enjoy and have a purpose for the use of his land at ground level. As Justice Douglas once said in the United States Supreme Court , the landowner must have “ exclusive control of the immediate reaches of the enveloping atmosphere" since otherwise “ buildings could not be erected , trees could not be planted , and even fences could not be run" . Grey further acknowledges that that upper stratum does not belong to anyone but the world he says it falls into the category of res omnium communis (space as the common heritage of mankind) .Although with regards to the boundary between the upper and lower stratum and where it begins



and ends this has never been fixed. Although there is a range of cases and laws along with a bit of logical thinking from scholars which make it a bit clear to us. In most cases the lower stratum is unlikely to reach beyond an altitude of 200metres above the roof of a house, flat building etc . if it were to do otherwise this would result in in an action for trespass by every plane which passes over a suburban garden and i suppose in regard to the “floodgates arguements" for claims it is more beneficial to have a plain recognition in common law and in modern legislation such as the Civil Aviation act where it states that in Britain, no aircraft may ever fly “ closer than 1500 feet to any person, vessel, vehicle or structure" although an exception is made for aircraft “while landing or taking off and even for gliders “ while hill soaring" . We have learnt that from the case of Bernstein of Leigh (Baron) v Skyviews and General Ltd (1978) Q.B. 479 that the higher stratum of airspace is not part of owners property although in certain circumstances like the case of Woolerton and Wilson ltd v Richard Costain ltd (1970) 1 W.L.R. 411, 413D you may base an action in tort for trespass if control of the lower stratum was necessary for owner to have reasonable use and enjoyment of land. Kevin Gray proposes that the criterion for defining property is 'excludability'. Using this criterion to measure 'propertiness' of a subject, a plaintiff may succeed in his claim that his property rights had been expropriated by another so far that the other person had affected his control of access of the property. In contrast, if the defendant's action had merely prejudiced the plaintiff 's access to the resource but the plaintiff had not control over the access of the resource, then there is no "property" to which the plaintiff can assert has been infringed upon. I asked myself the question after reading this passage featuring this proposition of 'excludability' - Should the criterion of excludability be used to demarcate the extent of a person's property right in a subject? I suppose there is a certain 'normative' aspect into the inquiry 'What is property' since the High Court of Australia in Victoria Racing and Recreation Grounds Co Ltd v Taylor have foud themselves diverging in their decisions due to the different opinion upon the concept of property. The minority judges found a misappropriation of "property" in the sheer fact that the defendatns had diminished the plaintiff 's access to the benefits of certain resources. By contrast, the majority found that there had been no taking of "property", precisely because the defendants' conduct could never in any event have deprived the plaintiff of control over access to thsoe resources. I think that Kevin Gray is most likely correct in his proposition of the criterion of excludability to defining property. Let me take an analogy to demonstrate why I believe this is so. I may have access to use an unoccupied classroom around law school at NUS to study. If another person had occupied the classrom before me, my 'access to enjoy the classroom' has been prejudiced. However, this does not mean that the other person has prejudiced me of any property rights since I had no control over the access over the classroom such that I could exclude this other person from using the room. Garrett Hardin’s in “Tragedy of the Commons” this talks about the overuse of scarce resources. Social relationship & disposition: relationship involves the correlation of rights and responsibilities. Disposition also relates to the power to transfer and alienation of property and exclusion of people from the property. Hardin argued that if individuals relied on themselves alone, and not on the relationship of society and man, then the number of children had by each family would not be of public concern. Parents breeding excessively would leave fewer descendants because they would be unable to provide for each child adequately. Such negative feedback is found in the animal kingdom.Hardin said that if the children of improvident parents starved to death, if overbreeding was its own punishment, then there would be no public interest in controlling the breeding of families.Hardin blamed the welfare state for allowing the tragedy of the commons; where the state provides for children and supports overbreeding as a fundamental human right, Malthusian catastrophe is inevitable. Hardin also pointed out the problem of individuals acting in rational self-interest by claiming that if all members in a group used common resources for their own gain and with no regard for others, all resources would still eventually be depleted. Overall, Hardin argued against relying on conscience as a means of policing commons, suggesting that this favors selfish individuals – often known as free riders – over those who are more altruistic. In the context of avoiding over-exploitation of common resources, Hardin concluded by restating Hegel's maxim (which was quoted by Engels), "freedom is the recognition of necessity". He suggested that "freedom" completes the tragedy of the commons. By recognizing resources as commons in the first place, and by recognizing that, as such, they require management, Hardin believed that humans "can preserve and nurture other and more precious freedoms". Milirrpuum v Nabalco Pty Ltd: Blackburn J stated that property generally implies the right to use or enjoy property, the right to exclude other people from the property. It must always involve the right to exclude others from doing something on the property or to the property. Property Rights and Contractual rights: contracts creates duties and obligations and don’t always confer rights over things, whereas property rights are rights over things. Licence as Contracts: licence is where a landowner gives permission to another to carry

out certain activity on the land, activity that without the permission would have been considered trespass, this licence creates a contract. Personality: idea that property enables an individual to prove their worth through self-exertion as an expression of self. “I think property in its many forms generally implies the right to use or enjoy, the right to exclude others and the right to alienate.” (at p 272) And again: “Private property may or may not involve a right to use something oneself. It may or may not involve a right to sell, but whatever else it involves, it must at least involve a right to exclude others from doing something.” (at p 268) 



 1. 2.   2.   

Mabo v Queensland (No2): The Mabo decision altered the foundation of land law in Australia by overturning the doctrine of terra nullius (land belonging to no-one) on which British claims to possession of Australia were based. This recognition inserted the legal doctrine of native title into Australian law. The judgments of the High Court in the Mabo case recognised the traditional rights of the Meriam people to their islands in the eastern Torres Strait. The Court also held that native title existed for all Indigenous people in Australia prior to the establishment of the British Colony of New South Wales in 1788. In recognising that Indigenous people in Australia had a prior title to land taken by the Crown since Cook's declaration of possession in 1770, the Court held that this title exists today in any portion of land where it has not legally been extinguished. The decision of the High Court was swiftly followed by the Native Title Act 1993 (Cth) which attempted to codify the implications of the decision and set out a legislative regime under which Australia’s Indigenous people could seek recognition of their native title rights. Milirrpum v Nabalco Pty Ltd:Federal Govt granted mining leases to the Defendant [Nabalco] without consulting the Plaintiffs [Milirrpum, the Yurrkala people]. The Plaintiffs claimed that their sacred sites were in danger (submitted petition). The Plaintiffs sued. They sought: A declaration that they were entitled to occupy the land without interference and that they had land rights based on a common law doctrine of Aboriginal title. That terra nullius be overturned. Issue: The impact of settlement on the indigenous inhabitants - land title: Do the aboriginal people have land rights based on the common law? Was Australia actually a terra nullius? Ruling: The aboriginals have a connection to the land, but not proprietary one: A proprietary relationship implied ‘the right to use or enjoy, the right to exclude others, and the right to alienate’. This was not demonstrated by the Plaintiffs, who only had a ‘religious relationship’ with the land. The court did recognise the existence of Aboriginal laws, which chall...