Structural analysis of Property

and Related Problems

Structural Analysis of
Property
• Bentham : Existence of Order is the basis of
the institution of Property
• Recognition of Ownership implies the
existence of a social order

• Legal Order represents an aspect of Social

Order
• The subject matter of legal order is the
relationship between human beings
• The object of Legal Order is to ensure social
Order

• In the Order of Social relations, different

institutions can be found, Property being one
of them
• The institution of Property, in addition to
regulating the relation between individuals,
ascertains their relations to objects as well.
• Normative Order is an essential element for
the existence for the existence of any
institution

• Norm are rules of conduct which prescribe behaviour patterns of individuals towards one another

Right of Property is Personal Right?

• Ownership is established principally by norms
of prohibition which regulate the human
conduct towards things.
• The meaning of a legal right of ownership is
that all other persons are forbidden to
interfere with the owner in the exercise of his
right in respect of the things owned
Variation in legal consequences of
Ownership
• These variations are the result of differences
of social systems
• Eg. In one legal system alienation is allowed,
whereas in others it is restricted
• In contemporary Russia, land and other
means of production are withdrawn from
personal ownership, while in india and UK
there is no such general restriction
 2 Elements of Ownership
• Primary element: whereby the legal analysis
defines ownership

• Secondary element: Functional role ascribed

to ownership
Legal Concept of Property: Whether
a Single Right or Bundle of Rights
•
“Anyone having an interest less than
ownership should not be construed as an
owner of property but as having proprietary
rights- rights which the owner grants to
•
others without losing his general right of
ownership”
“Ownership as an institution can be destroyed
not by destroying or varying different rights ,
•
but by one and only one method and that is
of abrogating the right of exclusion”
•
• Ownership hinges on the right of exclusion
English law looks at ownership by breaking it
up into fragments
• Fragments create different degrees of
ownership and these degrees of ownership
•
considered together give the notion of a
bundle of rights(BoR)
2 Possibilities with Property as BoR
• Either the rights constituting the bundle are
independent of each other
Or
• They are dependent
 st
Dilemma with the 1 Possibility
• Suppose a man has 6 rights and he alienates 5
of the rights from the bundle. Now 6 people
will be holding equal rights independently of
each other.
• Nobody has a claim to be called owner since
each has a single right and not a bundle
• Thus this proposition is futile
 nd
Dilemma with the 2 Possibility
• The owner will only be a person who possess
all the rights
• A man cannot alienate any of his rights.
• He can divest himself of the whole ownership
but he cannot transfer any single right.
• There will be no lease, no mortgage or no
trust
• Such a concept will lead to practical difficulties
Criticism of Theory of BoR
• “The Owner of land has not one right to walk
upon it, and another right to till it; the owner
of a piece of furniture has not right to repair it
and another right to sell it; all the various
rights which an owner has over a thing are
conceived as merged in one general right of
ownership”
 Property : Whether relation
between a person and a thing or
relation between a person and
other persons
• Legal relations in our law exist only between
persons.
• There cannot be legal relation between a
person and a thing or between 2 things
(Source: Restatement of the Law of Property,
American Law Institute)
Fundamental Idea of Ownership
The distinguishing character of property is not
the relation between the individual and the
object, but the right of the individual to exclude
others from his physical relation with the object.
It is this right to exclude others which is
fundamental to the idea of ownership
How to find owner when 2 or
more persons have a right in
rem over the res
a Piece of Land over which A has a right to till,
B a right to walk,
C a grazing right,
D a right to hold it as a security for debt

Yet none of them called owner

What is that which distinguishes the owner of a
piece of land from A, B, C and D
Different writers advance different arguments to
find the special advantage or characteristic of
the right which an owner enjoy over others
 Turner
If a man is to be owner of a thing he must have
atleast one right in rem in respect of it which
will exist even though all the other rights in rem
in respect of it which are vested in other people
may perish
 Markby
It is the holder of the residuary right whom we
always consider as the owner

Salmond and Pollock are also of the same view

 Critique of above views
Special characteristics of the owner’s right is
that it is a residuary right
From this it follows that the owner has the
reversioner’s right
If this is so, then it may appear that the state,
not the so-called owner has the has the ultimate
residuary right
Prof. Honore asks the question
Is the state’s interest ownership or a mere
expectancy
Distinction between property
and personal rights
 Economic value
Ely- criteria-economic value as the
characteristics of the property
Prof. Commons-identifies-property with
economic value
Salmond-property rights-money value personal
right -no money value
 Critique
Property is not only an economic value , it has
also has got a intrinsic value

e.g - My barren land might not be of any

importance to me, still if any one trespasses, he
is liable to me for the trespass
Hence the criterion of money value as a
distinguishing mark between property and
personal rights is not a fair criterion.
Transferability
It is thought that property rights can be
transferred but personal rights cannot be
transferred
 Critique
Under Hindu Law, a woman’s estate was under
severe restrictions as to alienation
She was an owner in all respects but alienation.
On her death property reverts to reversioners.
So if we apply the transferability test certain
property rights will be eliminated from the
sphere of ownership
 Survival
It is thought that property rights come to an end
with the death of the person of inherence while
the property rights survive the death of the
person of inherence
 Critique
A woman’s estate under Hindu Law which is her
personal right comes to an end though her right
is a property right as well
 Another critique of Survival test
Prof. Honore:
In the case of License the property right has
come to an end by alienation
But
In the case of Easement the property right
continues
Still we cannot say that former is not a property
right