Summary Personal Property PDF

Preview

Summary

Summary Personal PropertyWeek 1 Introduction—what is personal property What is property to the lawyer?  there is a thing (also known as a chose (pronouns as shows ) or a res); and  there is a person;  the thing (also known as a chose or a res) is one to which the person has titleWhat is a thing (...

Description

Summary Personal Property Week 1 Introduction—what is personal property What is property to the lawyer?  there is a thing (also known as a chose (pronouns as shows ) or a res); and  there is a person;  the thing (also known as a chose or a res) is one to which the person has title What is a thing (chose)? Some examples of things (choses) are (again):  land and (parts of) buildings; and  things other than land and than (parts of) buildings, e.g. (Blackstone):  “animals”;  “household stuff”;  “money”;  “jewels”’;  “corn”;  “garments”衣服; and  “everything else that can properly be put in motion, and transferred from place to place” What is a person?  For the lawyer, there are two main types of person:  the “natural person”, i.e. a human being, like you or me; and  the “juristic person”, i.e. a person that exists “in law” and only “in law”, e.g. a company Note:  Every natural person and every juristic person are a “legal person”, i.e. a person that the law recognises as a person (able to have property, contract, and so on)  There are certain cases where a (juristic) person is also a thing (chose)  One example is the case of the company---the company can own property and the company itself also is a property owned by someone  Another example (specific to New Zealand) is the case of Te Urewera----a park viewed by law as a legal person, owns the land which makes it up.

1

What is title? The term “title” means: • ownership; • possession; or • both ownership and possession (at the same time) What is ownership?  One possible working definition is “the state or condition of generally being able (legally) to decide – in priority over any other person – what happens to a thing (chose)”  This definition is adapted from a definition proposed by Penner:  “The important feature of property is the individual’s determination of the disposition of a thing”  This working definition uses the word “generally” because there are exceptional cases where the owner will not be able to decide what happens to the thing (chose)  One example is the case where there is a warrant to seize property under s 167(1) of the District Court Act 2016, s 167(1) What is possession? Generally, when a lawyer uses the term “possession”, (s)he means one of the following:  possession in fact (also known as de facto possession, factual possession, or physical possession)  One possible working definition of possession in fact is “the state or condition of (factually) having control, custody, or occupancy of a thing (chose)”  possession in law (also known as de jure possession or legal possession)  One possible working definition of possession in law is: “the state or condition of generally being able (legally) to decide – in priority over any other person except the owner – what happens to a thing (chose)” 2



 

Arguably, possession in law:  is similar to ownership; or  may even be a special type of ownership (just as ownership may be a special type of possession in law)

constructive possession (a special type of possession in law) Constructive possession is simply possession in law without possession in fact----a special type of possession in law; and

 Imagine that:  I buy a dog;  I hand the dog over to Nick, so that Nick can walk it; and  while Nick is walking it, Mike takes it, without permission

Why is possession important?  Arguably, possession and ownership are different in theory  However, they may be difficult to differentiate in practice  The main reason is “the presumption of law […] that the person who has possession has the property” (Jeffries v Great Western Railway Co (1856) 5 El & Bl 802, 119 Eng Rep 680)  This rule is a type of rebuttable presumption  The rebuttable presumption is that:  if a person has possession of a thing (chose);  then (s)he has ownership of the thing (chose)  In practice, the rebuttable presumption has two main consequences 3



The first consequence is that the judge will treat the possessor of the thing (chose) as the owner of the thing (chose), unless the opposing party proves that the possessor is not the owner  For example, the judge will treat Mike as the owner of my dog (yes, as the owner of my dog), unless Nick or I prove that:  I bought the dog; and  Nick was walking it when Mike took it  Note: The fact that the possessor is not the owner is something that the opposing party must prove on the “balance of probabilities”, i.e. on a “more likely than not” basis  If the opposing party fails to do so, then the judge will simply treat the possessor as owner  There is no case where the law requires anyone to prove anything with absolute certainty For example  if Nick (possession in law) sued Mike, Nick would try to prove that (it was more likely than not that) Mike had taken the dog. Nick could use evidence such as:  testimony by any witnesses; or  closed-circuit TV [CCTV] footage;  if I(owner) sued Mike, I would have to prove that (it was more likely than not) that:  Mike had taken the dog; and  I was owner of the dog. I could use evidence such as:  a receipt; or  photos of the dog and me together



The second consequence is that generally, the judge will use the terms possession and ownership interchangeably

What makes personal property “personal”?  What makes personal property “personal” is the type of thing (chose).

4

 Generally, the distinction between personal property and real property will be relatively clear  Personal property is property other than real property, i.e. other than land and than (parts of) buildings  However, the distinction is less clear in the case of:  the fixture (A fixture is personal property that is attached in some way to real property); and  For example, generally carpet (once installed) will be a fixture (see e.g. La Salle Recreations Ltd V Canadian Camdex Investments Ltd [1969] BCJ No 421, 4 DLR (3d) 549); whereas a rug will not be a fixture  the chattel real (A chattel real is a type of “right or interest (enforceable by law)” in real property), such as a lease  Most personal property will be a chattel personal

5

 Documentary intangibles are things in action where the documents with which they are associated are so identified with the underlying obligation that transfer of the document effects a transfer of the obligation

6

Note(1) The distinction between pure intangibles and documentary intangibles is particularly important in the case of bailment  It is possible to describe bailment as something of a lease, only of (tangible) personal property rather than of land or of (part of) a building  The term “bail” comes from French “bail” (“lease”, of any tangible moveable or of any tangible immovable)  The (civil law) term “moveable” is roughly equivalent to the (common-law) term “personal property”  The (civil law) term “immoveable” is roughly equivalent to the (common-law) term “real property”  It is possible to bail a documentary intangible, but not a pure intangible  The documentary intangible is an intangible that the law “treats as” a tangible  It is possible to be in possession of the “document of title” Note (2):  There are certain “things” that the law does not generally regard as things (choses). These “things” include:  human beings, whether living or dead; and  human body parts Week 2 How property rights are created-By Hunting Generally, how are property rights created? ---By Hunting  A person comes to have title to a thing (chose), especially a wild animal, by (Pierson v Post):  intending to take possession of it; and  actually taking possession of it  Taking possession of the thing (chose) does not involve:  “merely pursuing” it, but actually “intercepting 拦截”, “killing”, “occupying”, or “taking” it (Pierson v Post);  “all but reducing” it into his/her “actual power” or “custody”, but actually “reducing” it into his/her “actual power” or “custody” (Young v Hichens)

7

 Pierson v Post: what were the facts?  Pierson was the appellant (and the defendant), and Post was the respondent (and the plaintiff)  Post was:  “in possession of certain dogs and hounds under his command”; and  “upon a certain wild and uninhabited, unpossessed and waste land, called the beach”; and  “did […] find and start[le] one of those noxious beasts called a fox”  Pierson:  was also “there hunting, chasing and pursuing the same with his dogs and hounds”;  “well kn[ew] the fox was so hunted and pursued”;  wished “to prevent [Post] catching the same”; and  “did […] kill and carry it off”

 Pierson v Post: what was the decision?  The majority decided in favour of Pierson  Pierson v Post: what was the question?  “whether Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox as will sustain an action against Pierson for killing and taking him away”;  “what acts amount to occupancy, applied to acquiring right to wild animals”  Pierson v Post: what was the decision? Majority (Tompkins J):  “If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian’s Institutes, and Fleta, adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Breton”  “Puffendorf defines occupancy of beasts feroe naturoe, to be the actual corporeal possession of them, and Bynkershock is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him”  “actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since thereby”:  “the pursuer manifests an unequivocal intention of appropriating the animal to his[/her] individual use” and; 8



“has deprived [it] of [its] natural liberty, and brought him within his[/her] certain control”  “So, also, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them”  “However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet this act was productive of no injury or damage for which a legal remedy can be applied” Minority (Livingstone J):  (policy consideration)“[A] fox is a ‘wild and noxious beast.’ [… Its] depredations on farmers and on barnyards, have not been forgotten; and to put him to death wherever found, is allowed to be meritorious, and of public benefit. Hence it follows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in [its] career”  “[P]roperty in animals feroe naturoe may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking what he has thus discovered an intention of converting to his own use”

 Young v Hichens: what were the facts?  Young was the respondent (and the plaintiff), and Hichens was the appellant (and the defendant)  Young had:  “drawn his net partially round [some] fish […], leaving a space of about [13 m] open, which he was about to close with a stop net”; and  “two boats[ …] stationed at the opening, and splashing the water about, for the purpose of terrifying the fish from passing through the opening”  “[A]t this time, [Hichens] rowed his boat up to the opening, and [a] disturbance, and taking of the fish [by Hichens], took place”

 Young v Hichens: what were the question? whether the fish were at that time in [Young’s] possession  Young v Hichens: what was the decision? The Court decided in favour of Hichens  Young v Hichens: what was the reasoning? Denman CJ:  “It does appear almost certain that [Young] would have had possession of the fish but for the act of [Hichens]: but it is quite certain that he had not possession. 9

Whatever interpretation may be put upon such terms as ‘custody’ and ‘possession,’ the question will be whether any custody or possession has been obtained here. I think it is impossible to say that it had, until the party had actual power over the fish”  “It may be that [Hichens] acted unjustifiably in preventing the plaintiff from obtaining such power: but that would only shew a wrongful act, for which he might be liable in a proper form of action”

10

Week 2 cases -- How property rights are created-By Hunting  Pierson v Post (1805) 3 Cai R 175, 1805 NY LEXIS 311 Pierson v. Post is an early American legal case from the State of New York that later became a fundamental case in the field of property law. Pierson v. Post is generally considered the most famous property law case in American legal history. Although it only involved a dispute over which of two men deserved ownership of a fox, adjudicating the dispute required determining at what point a wild animal (traditionally known as an animal ferae naturae) becomes "property". The judges chose not to follow common law precedent on wild animal capture, and so were forced to synthesize reasoning from a variety of wellknown historical legal treatises—ranging from the Institutes of Justinian in the 5th century to the writings of Henry de Bracton in the 13th century and Samuel von Pufendorf in the 17th century—into a coherent principle on how property can be first possessed by a human being. Determining the rightful ownership of the fox involved the essence of the human notion of "property" itself and how it is created, and for this reason Pierson v. Post is included in nearly all Anglo-American property casebooks. Fact Decided in 1805, the case involved an incident that took place in 1802 at an uninhabited beach near Southampton, New York. Lodowick Post, a local resident, was out with a hunting party when his hunting dogs caught the scent of a fox and began pursuing it. As they drew near the fox, Jesse Pierson, another local resident, saw the fox—and know the fox was so hunted and pursued—and promptly killed it and carried it off for himself. Post filed a lawsuit against Pierson claiming that because he had already begun pursuing the fox, the property of the fox's pelt 皮毛 and carcass were rightfully his, not Pierson's (Post argued that he had ownership of the fox as giving chase to an animal in the course of hunting it was sufficient to establish possession). The local justice ruled in favor of Post. Pierson appealed the ruling to the New York Supreme Court of Judicature, who reversed the justice's decision and ruled in favor of Pierson. Issue On appeal after the trial, the issue put to the Supreme Court of Judicature of New York was whether one could obtain property rights to a wild animal (Ferae naturae), in this case the fox, by pursuit. And “what acts amount to occupancy, applied to acquiring right to wild animals”

Judgment  Justice Tompkins wrote the majority opinion. The Court cited ancient precedent in deciding the case:  If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, and Fleta, adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by 11

Bracton. The court looks to the opinions of ancient legal philosophers, Fleta, and Bracton of the Justinian’s Institutes. These philosophers agree that pursuit alone is not enough to create property rights, even when the pursuer has mortally wounded the animal because actual possession is necessary. Philosophers Puffendorf and Bynkershoek agree but would create an exception for cases in which the animal has been mortally wounded and the hunter remains in hot pursuit.  The court reasoned that given the common law requirement to have control over one's possessions, merely giving chase was not sufficient. Something more was needed, otherwise law would create a slippery slope.  If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared the animal, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile course of quarrels and litigation. 

 The majority opinion found that though it may have been rude for Pierson to have killed the fox, there was no reason to object as only the person to mortally wound or seize the animal can acquire possession of it. Observation  The mere fact that a person is pursuing a wild animal does not give that person the right to the animal.  Mortally wounding or killing the wild animal would be sufficient to show possession since this limits the natural rights of the animal. This exception is justified because continued pursuit of a mortally wounded animal shows an unequivocal intention to own the animal together with having taken some control of it.  If the first who sees or pursues a wild animal without wounding or trapping the animal had possession of the animal, this would give rise to much litigation.

 Young v Hichens (1844) 115 Eng Rep 228, 6 QB 606 Fact The plaintiff(Young) was fishing in the sea for pilchards 沙丁鱼 and had drawn his net around a large number of fish, but at a moment when his net remained open by some seven fathoms 英寸 and he was about to close it, the defendant(Hichens) rowed up to the opening of the net and disturbed the fish so that they escaped. ISSUE: Is ‘almost’ control good enough for possession? Held The defendant was not liable for the plaintiff’s loss of the fish, because at the critical moment the plaintiff had not yet taken possession of the fish, which he could only do by 12

closing the net. Judgment  “It does appear almost certain that [Young] would have had possession of the fish but for the act of [Hichens]: but it is quite certain that he had not possession. Whatever interpretation may be put upon such terms as ‘custody’ and ‘possession,’ the question will be whether any custody or possession has been obtained here. I think it is impossible to say that it had, until the party had actual power over the fish”  “It may be that [Hichens] acted unjustifiably in preventing the plaintiff from obtaining such power: but that would only shew a wrongful act, for which he might be liable in a proper form of action”

13

Week 3 how are property rights created? By gathering (or finding)? Slides Class 3a Generally, how are property rights created? By gathering (or finding)?  The general rule is that if a thing (chose) is found some place, then title to the thing (chose) (Parker v British Airways Board):  is vested in the true owner (whether title was created in him/her [see class 2 and this class] or transferred to him/her [see classes 4 and 5]);  if not vested in the true owner, becomes vested in the person (the “occupier”) who occupies the place where the thing (chose) is found; or  if not vested in the occupier, becomes vested in the person (the “finder”) who found the thing (chose)  For the purposes of the general rule (Parker v British Airways Board): the “pla...