KINDS OF LEGAL RIGHTS

1. Perfect & imperfect

2. Positive & negative
3. Rights in rem & rights in personam
4. Proprietary & personal rights
5. Rights in re propria & rights in re aliena
6. Principal & accessory rights
7. Primary & sanctioning rights
8. Legal & equitable rights
9. Vested & contingent rights
April 12, 2020 Devidas G. Maley, Legal Rights 57

April 12, 2020 Devidas G. Maley, Legal Rights 58

 PERSON
The Nature of Personality
• Prime case of person: human being.
• Power of thought, speech & choice.
• Personifying an object: gods, angels, etc.
• Law is concerned with rights & duties.
• Both involve the notion of choice.
• Legal notion not to coincide with the
ordinary concept.

Use of the term Person

• It meant a mask, a character, a representative.
• Roman Law: shift from a character in a play to any
human being.
• Jural relations: power to sue & interest in property.
• Development of such capacities in bodies:
municipium & collegium.
• Tertullian: Person of Christ.
 Legal concept of Person
• It focuses large number of jural relations.
• One capable of rights and duties.
• Two kinds: natural & legal.
• Human Beings: Pre-existed both law & society.
• Jural relations of each individual: a unit.
• Legal Persons: real or imaginary.

Lower Animals
• Beasts are not persons.
• They are objects of rights & duties.
• Not the subjects of rights & duties.
• They can act & posses interests.
• But they are not recognised by law.
• Archaic codes did punish animals, not now.
• Persons interested in them is answerable.
 Lower Animals
• Hominum causa omne jus constitutum.
• There is no bond of obligation men & lower
animals.
• Wrong done to it is a wrong to its owner or to the
society.
• Two cases animal rights: 1) cruelty to animals is a
criminal offence; 2) trust for the benefit of a class
of animals is valid.

Dead Men
• Personality ceases with the death.
• They have no rights because they have no
interests.
• Recognition of his desires & interests when
he was alive:
1. Body: decent burial
2. Reputation: libel
3. Estate: testamentary succession
 Dead Body Ceremonies

•All treat bodies

of dead members

Unborn Persons
• It has personality.
• It can own property.
• Nasciturus pro jam nato
habetur.
• En ventre sa mere is a person
for the following purposes:
1. Acquisition of property
2. For considering as a unit in
rule against perpetuity.
 Extent of his Personality
• It is somewhat unsettled.
• Lord Campbell’s Act: posthumous child’s right for
the death of his father.
• R v. Senior injury to the child in the womb.
• Death penalty on pregnant woman.
• Walker v. Great Northern Ry. Of Ireland: no liability
for the damage when in womb.
• Rights of the unborn are contingent rights.

Extent (cont.)
• If not born, falls away ab initio.
• Abortion & child destruction are crimes.
• But not amount to murder or manslaughter.
• No inheritance if still-born.
• No rights to persons not at conceived, but their
interests are protected.
 LEGAL PERSONS
• Other than human being.
• Personification of some real thing.
• Some times imaginary thing also.
• The thing personified is the corpus.
• Law infuses animus of fictitious personality
• Although all legal personality involves
personification, converse is not true.

Kinds of Legal Persons

1. Corporation constituted by the personification of
groups or series of individuals.
2. Personification of an institution.
3. Corpus is some fund or estate devoted to special
uses.
Corporations are of two types:
1) sole and
2) aggregate.
 Corporation Sole
• Founded on the necessity of continuing the official
capacity beyond lifetime.
• Enjoys legal existence in perpetuity.
• Maitland: parson’s glebe-a piece of land is the
starting point.
• Purpose: ensuring the continuity of an office.

The Crown as a Corporation Sole

• S. 40(I) of the Crown Proceedings Act, 1947
underlines the distinction between the sovereign as
an individual & as corporation sole.
• Maitland: parson’s glebe notion was applied to the
Crown.
• Proclamation “the King is dead, long live the
King”denotes both the persons.
• “King can do no wrong.”
 Corporations Aggregate
• Trade enlarged the grouping of jural relations to
embrace collection of individuals into CA.
• Can be created by: 1.Royal Charter; 2.special
statute; 3. the Companies Act.
• Aspects to be noted:
1.Instinctive tendency to unify groups.
2.important to keep distinct the unity of a group.
3.appreciation of unity is dependent on the
viewpoint and context; eg. Football team.

Functions of Corporations Aggregate

(CA)
• Facilitate the conferment of powers on collective
undertakings as one unit.
• Ascription of collective liability.
• Advantage of limited liability.
• Independent existence of company: Salomon v.
Salomon & Co.
People’s Pleasure Park Co v. Rohleder.
 Corporations Aggregate (CA)
• Can it survive last of its members?
• Prof. Gower:mentions the case of all members
dying ina bomb blast.
• Perpetuity of succession.
• Ability to sue and be sued.
• Acquisition of property.
• Membership and management separated.

Control of Power
• Separation of power from ownership.
• Notional property of parent and subsidiary
companies.
• Power of control by shares.
• Statutory intervention: balance sheet.
• Statutory responsibilities of managers and
directors.
• Control by nationalisation: pros & cons.
 Control of Liberty
• Lifting the veil.
• Act of some individuals is company’s act.
• One company’s act as another’s.
• Court’s dealing with certain situations:
• Behaviour: Gilford Motor Co v. Horne: H’s covenant
with Plaintiff not to compete and forming a
company to solicit its customers.

Control of Liberty
• Parker and Cooper Ltd v. Reading: informal
ratification by members binds the company.
• Liability in Torts: intra vires & ultra vires.
• Theoretical difficulty in ultra vires torts.
• Statutory corporations: no authority may be
implied to do such acts.
 Control of Liberty
• Winfield: if express authority, it is liable as a joint
tortfeasor.
• Goodheart: opposite view.
• Many submit that corporation should be liable for
the acts of its governing body.
• Only case: Campbell v.Paddington Corpn
• Criminal Law: acts of the supreme directorate are
the acts of the corporation.
• Declaration as ‘enemy company’: Daimler Co Ltd v.
Continental Tyre and Rubber Co (gt Britain).

Control of Liberty
• Public Policy: Nordenfelt v. Maxim Nordenfelt Guns
and Ammunition Co: MD’s covenants are of Co’s,
not of employee.
• Fraud & evasion: Re FG(Films) Ltd: nominal
incorporation by American Co to make a film not
accepted.
 State as a Corporation
• State is the greatest form of human society.
• In England it is not a person.
• It is a person in most of the countries.
• Monarchical government is the reason in England
for not recognising it as person.
• King is the legal person.
• Exceptions: local authorities, BBC, Docks &Harbour
Board, etc.

Unincorporated Associations
• Trade unions, friendly associations, partnerships,
etc.
• Registered trade unions can bring actions.
• Unincorporated associations cannot.
• Taff Vale Rly Co v. Amalgamated Society of Railway
Servants: a trade union could be sued in tort.
• Longdon-Griffiths v. Smith: a friendly society can be
sued in tort in its registered name.
 Unincorporated Associations
• Bonsor v. Musician’s Union:a member can sue a trade
union for breach of contract.
• Free Church of Scotland v. Lord Overtown: trust fund
cannot be used for other purposes
• Wurzel v. Houghton Main Home Delivery Service ltd,
Wurzel v. Atkinson: two societies delivered coal to its
members; incorporated one held as infringed the terms
of its vehicle licence, but the other society not.
• Trebanog Working Men’s Club & Institute Ltd v.
Macdonald: mask lifted; sale of liquor to its member not
a sale between two distinct persons.

THEORIES OF PERSONALITY
I. ‘PURPOSE’ THEORY: Brinz & Barker:
• Human beings are the only persons.
• So-called jurisic persons are not persons.
• They are ‘subjectless properties’.
• Other people may owe duties towards them.
• They cannot have correlative claims.
• Designed to explain stiftung og German law & vacant
inheritance of Roman Law.
• Duguit: ‘purpose’ as social solidarity.
 II. ‘Enterprise Entity’ Theory
• Corporate entity is based on the reality of the
underlying enterprise.
• Approval of the corporate form establishes a prima
facie case of the enterprise.
• Assets, activities and responsibilities of the
corporation are part of the enterprise.
• Where there is no approval its activities are
determined by the underlying enterprise.
• This theory is an utilitarian one.

III. ‘Symbolist’ or ‘Bracket’ Theory

• Ihering: the members of a corporation are the only
members.
• Juristic person is a symbol to effectuate the
purpose of the group.
• It amounts to putting a bracket around them.
• Assumes ‘person’ is confined to humans.
• It takes no account of court’s policy of using the
phrase ‘X & Co’.
 IV. Hohfeld’s Theory
• Distinguishes human beings and juristic persons.
• Juristic persons are the creation of arbitrary rules of
procedure.
• Only human beings have claims, etc.
• Arbitrary rules limit the extent of their responsibility.
Eg to the amount of shares.
• Corporation is merely a procedural form to workout
the jural relations of large number of people for
immediate purpose postponing the details to be
worked out later.

V. Kelsen’s Theory

• Rejects contrast between natural & juristic.

• Concept of person is always a matter of law.
• Biological character of human beings is outside its
perview.
• Totality of claims and duties is the person.
• A set of rules constitutes the corporation.
• It is different from its members.
 VI. ‘Fiction’ Theory
• Savigny & Salmond support this theory.
• Juristic persons are treated as if they are persons, ie
human beings.
• Sinibald Fieschi (Pope Innocent IV in 1243) first to
employ the idea of persona ficta.
• Only ‘human beings’ are ‘properly’ called ‘persons’.
• Originated during the Holy Roman Empire at the
height of Papal authority.

VII. ‘Concession’ Theory

• Allied to the fiction theory.
• Regards the dignity of being a ‘juristic person’
to be concede by the state ie law.
• Identification of state and law is necessary.
• Product of post-Holy Roman Empire era.
• Used for political purposes to strengthen the
state and suppress autonomous bodies in it.
 VIII. ‘Realist’ or ‘Organism’ Theory
• Gierke is the exponent of realist theory & Maitland a
sympathiser.
• Assert that juristic persons enjoy a real existence as a
group.
• It is of German origin.
• It opposes concession theory.
• Organism theory asserts that groups are persons
because they are ‘organisms’.
• Prof. Wolf: ‘group will’ is independent of will of its
component members.

Conclusions
1. No one explanation takes account of all
aspects of the problem.
2. English lawyers have not committed to any
theory.
3. Two linguistic fallacies appear to lie at the root
of much of the theorising:
a) Similarity of language formhas masked shifts in
meaning & dissimilarities in function.
b) Persistent belief that words stand for things.
 THIRD SECTOR ORGANISATIONS
• In sphere of associational & charitable activities of human
beings, as in any other spheres of life, law is not self
operative.
• It needs dynamic intervention by a supervising &
implementing agency.
• In fact, the legal environment governing this sphere,
which is called as the THIRD SECTOR .
• Third Sector is a sector other than State and the market.
• As Mark Lyon points out, ‘it consists of democratically
controlled private organizations that are formed &
sustained by a group of people (Members) acting
voluntarily & without seeking personal profit to provide
benefits for themselves or others’.

The Third Sector

• Refers to a social space occupied by voluntary groups,
associations, societies, non-governmental organizations,
co-operative societies, clubs, trade unions, not-for profit
companies, trusts, charitable & religious endowments.
• The significance of third sector is due to their remarkable
positive contribution towards better protection of
human rights, environment & access to welfare for
various classes of people .
• These bodies link people to social and public life, enable
voluntarism and enhance the worth of social capital
(Anirudh Krishna).
 The Third Sector
• Like,
1. Tsunami scare
2. Drought
3. Flood
4. Globalization or
5. Crude violation of human rights.
Concrete help comes from concerted efforts of organized
civil society to soothe the victims.

The Third Sector

• They are the miniatures of society, schools of experience

& instruments of social service.
• Hence, there is a need for a dependable legal framework
for a reliable flotilla of Third Sector bodies is of greater
order.
 Legislations Governing The Third Sector

• Legislations governing this sector in India provide for

specific agencies for implementation of the legislative
policies & lay down the procedure to be followed by
them.
• Supervision by state is an important dimension of the
administrative process to ensure compliance with law.
• It calls for information, requires & confers registration,
gets periodic reports from the bodies regarding works
& accounts, insists on audit, involves in inquiry &
investigation & launches prosecution or other
disciplinary actions in remedial efforts.

Legislations Governing The Third Sector

I. ORGANISATIONS
There are numerous central & state legislations dealing
a variety of private organisations coming under
the THIRD SECTOR - societies, cooperative
societies, trade unions, & non-profit making
companies & organisations.
 Legislations Governing The Third Sector

II. PUBLIC TRUSTS & ENDOWMENTS

• Schemes for dedication of property for benevolent
purposes constitute important instruments of public
life.
• Unlike organisations, these arrangements do not have
particular administrative nucleus. This lacuna is made
good by elaborate provisions for their supervision.
• Public trusts, court-monitored schemes, charitable &
religious endowments & wakfs are the examples.

April 12, 2020 Devidas G. Maley, Legal Rights 100

 POSSESSION
• Physical control of things is external to law.
• Certain advantages are attached to the possessor by
law.
• Advantages under Roman Law:
1. It is a prima facie evidence of ownership.
2. It is the basis of certain remedies: possessory
interdicts.
3. It is an important condition in acquisition of
ownership in various ways.
4. In pledge: possession of pledged thing constitutes
creditor’s security without any presumption of
ownership.

Possession
• Additional advantage in English Law: possessor
may exceptionally confer good title on another.
• Possession is not just physical control.
• Tradition & technicality complicate it.
• Traditionally possession was the basis of these
advantages.
• Reasoning: whenever a man has these
advantages, this must be because he has
possession.
 Possession
• Physical control distinguished from possession.
• Custody in British & detentio in Roman Law is the
least confusing terminology.
• Three situations became possible:
1. A man could have physical control without
possession & its advantages.
2. He could have possession & its advantages without
physical control.
3. He could have both.

Different Kinds of Possession

• Possession in Fact
• Possession in Law
• Corporeal & Incorporeal
• Immediate & Mediate Possession
• Concurrent Possession/Duplicate
• Adverse
• Constructive
• Possession of Res Nullius
 Possession
• The Acquisition of Possession
• The continuation of Possession
• Incorporeal Possession
• Possession & Ownership
• Possessory Remedies

Possession in Roman Law

• Protection of dominium is cardinal tenet.
• For prescription possession in essential.
• Possessory interdicts in pledge.
• Contradiction between the two is also met.
• Javolenus: for prescription usucaping debtor
possessed & for other purposes the creditor.
• Artificial extension of possession: wild creatures &
summer & winter pastures.
 Possession for other Purposes
• It is a basis for acquiring through it.
• In deposit, incidence of possession varied.
• Person having a right to possess is deemed to be in
possession.
• Extension of possession to interests.
• Convenience played its part in deviations:
1. Traditio brevi manu.
2. Constitutum possessorium.
3. Traditio longa manu.
• Corpus possessionis & animus possidendi.

Balance of Convenience
• Acquisition:Physical control and awareness
• Mental element to be supplied by him.
• Physical element either by him or through
instrument.
• Animus not required: paterfamilias, principal, etc.
• Less requirements for its continuation.
• Thus possession was not one idea.
 Theories of Possession
1. Savigny’s Theory
2. Ihering’s Theory
3. Salmond’s Theory
4. Holme’s Theory
5. Pollock’s Theory

Savigny’s Theory
• Das Recht des Besitzes (1803).
• Bases his theory on the texts of Paul.
• Corpus possessionis and animus domini.
• Permanent loss of any one brings possession to
end.
• Temporary loss of one did not matter provided it
was reproducible at will.
 Critique on Savigny
1. Overlooked the shift in meaning of the term
possession.
2. Based only on the texts of Paul.
3. Animus fails to explain the cases of pledge,
emphyteuta ,sequester and precario tenens.
4. Animus Domini to Animus Possidendi by his
followers, is also objected.
5. Reveals its weakness when applied to
continuation & loss of possession.

Ihering’s Theory
• Demolishes Savigny’s theory.
• Interdicts were devised to benefit the owners, as
dfts in title actions.
• Owner had possession.
• Animus is simply an intelligent awareness of the
situation.
• Its flexible nature is close to RL.
 POSSESSION IN ENGLISH LAW
• Shift in the meaning as in Roman Law: not confined
to physical control.
• Roskill L J:”having something in one’s possession
does not mean of necessity that one must actually
have it on one’s person.”
• Possession in Fact & Possession in Law.
• Former led to corpus & animus theory.

Erle C J in R v Smith (1855)

“Possession is one of the most vague of all vague
terms, and shifts in its meaning according to the
subject-matter to which it is applied-varying very
much in its sense, as it is introduced either into civil
or into criminal proceedings.”
 Towers & Co Ltd v Gray (1961)

Lord Parker C J:

“For my part I approach this case on the basis that

the meaning of ‘possession’ depends on the
context in which it is used.”

Questions to be considered:
Tenancy issues:
• Ancona v Rogers: Holding of key led to possession
of the rooms.
• Wakeham v Mackenzie: In part performance,
having a key to the premises is not a possession.
• Rent Acts: ‘possession’ is construed as actual
possession; landlord is not u/ possession by change
of tenancy made with consent.
 Tenancy
• Jewish Maternity Home Trustees v Garfincle:
having key for some time amounted to ‘actual
possession’.
• Thomas v Metropolitan Housing Corpn Ltd:
dropping key in letter box of agent’s office is
enough.
• Goodier v Cooke:outgoing tenant handing over key
to agent who in turn hands it over to new tenant is
a case of actual possession.

Tenancy
Holt v Dawson: Scott L J:
“Each of these cases as to actual possession by the
landlord must be decided on its own particular
circumstances, and the fact that in one case a court
or judge has taken a certain view is of little
guidance in other cases.”
 Tenancy
• Boynton-Wood v Trueman: handing over key to the
landlord to carry out repairs was not surrender of
possession.
• Michel v Volpe: possession of a key to a room in a
house does not give exclusive occupation
amounting to a sub tenancy.
• Brown v Brash & Ambrose: tenant went to goal &
his mistress also left later; held not in possession
during that period.

Tenancy
• Tennant v Whytock: tenant went to live with her
husband in Germany; she remained in possession.
• Ticker v Hearn: tenant went to live with daughter &
taken to mental home & daughter maintained
house; held possession is intact.
• Possession of tenants is also affected by policy with
regard to husbands & wives & morality.
 Law of Torts
• Possession is the basis of trespass.
• Bailee can sue third person for it.
• Meux v Great Eastern Rly Co: master can sue in
trespass for injury to the thing committed by third
party.
• Heyden v Smith: servant is also capable
• Moore v Robinson: Servant could maintain
trespass.

Lost Property
• Right to regain possession suffice to sue person
who takes it in conversion.
• Doctrine of ‘trespass by relation’.
• Goodhart’s two more rules:
1. A possessor of land possesses every thing
attached to or under the land.
2. Things lying loose on the land are not in the
possession of the land owner, but fall into the
possession of the first finder, if he is lawfully on
the land.
 Cases on first rule
• Elves v Briggs Gas Co: a prehistoric boat embedded
in the soil.
• South Staffordshire Water Co v Sharmon: rings
buried in mud of pool.
• London Corpn v Appleyard: bank-notes contained
in a wooden box inside a locked safe in the wall of
building.
• Hannah v Peel: a brooch found by soldier on
requisitioned premises not in possession of the
landowner.

Cases on second rule

• Armory v Delaminrie:a chimney-sweep found

jewel while cleaning acquires it.
• Bridges v Hawkesworth:a pocketbook dropped in
a shop was picked up by a customer; has
possession.
• Bird v Fort Franks: banknotes found by a boy on a
sill in private premises.
• Grafstein v Holme & Freeman: finding a thing &
reporting to the employer; employer comes into
the possession of things contained in it.
 Cases
• Crinton v Minister for Justice: finder finds as agent
for his principal.
• Byrne v Hoare: police constable found gold ingot
has it except true owner.
• Parker v British Airways Board:passenger found
gold bracelet in the lounge handed to an employee,
held finder has possession.

Old Law Of Larceny

• Conditions for Larceny:
1. A taking of possession
2. Without the consent of the owner or possessor
3. With intent to steal at the time of the taking.
• Later the penalties became milder.
 Cases on Larceny
• R v Riley: where taking of possession is a civil trespass,
subsequent intention to steal could coincide with a taking
that was occurring at the moment.
• R v Ashwell: a person who received a sovereign in the dark,
when both giver & taker believed it to be a shilling, only
took possession of the sovereign when he later realised
about it.
• Hayden & Smith’s Case: servant’s dishonest intention,
converts custody to possession.
• The Carrier’s Case: Doctrine of ‘breaking bulk’ as to the
dishonest bailee.

Possession of Prohibited Drugs

• Warner v Metropolitan Police Comnr: Drugs Act
1964, laid down absolute prohibition of possessing
drugs, but mitigated the severity by importing a
mental element into possession in the context of
this particular branch of the law.
 Adverse Possession of Land
• Ormrod L J: courts have been reluctant to allow an
encroacher or squatter to acquire a good title to
land against the true owner; & interpreted the
word possession narrowly.
• Leigh v Jack: dft placed his materials on land,
enclosed a portion of it& fenced in the ends- not an
adverse possession.
• Littledate v Liverpool College: the erecting &
locking of gates did not amount to it.

Adverse Possession
• Convey v Regan: cutting and removal of turf not a
case of adverse possession
• William Bros Direct Supply Ltd v Raftery: minor
acts by ptf owners constituted continued
possession as against dft’s act of cultivation.
• Wuta-Ofei v Danquah: as against trespasser even
the slightest evidence is sufficient to continue
possession.
 Conclusion
• Possession is no more than a devise of convenience
& policy.
• Shartel :”…there are many meanings of the word
possession; that possession can only be usefully
defined with reference to the purpose in hand; &
that possession may have one meaning in one
connection & another meaning in another.”
• Old theories were based on fallacy of corpus &
animus.

THEORIES OF POSSESSION
• Salmond’s Theory
• Holmes’s Theory
• Pollock’s Theory
• Prof Tay

April 12, 2020 Devidas G. Maley, Legal Rights 132

 Salmond’s Theory
• Distinguished possession in fact & law.
• Former is a conception.
• This is possession ‘in truth & in fact’.
• Possession in law is fictitious.
• Corporeal & Incorporeal Possession.
• Former: possession of physical objects.
• Later: possession of rights.

Salmond
• PF ‘is’ corpus and animus.
• Animus is an intent to exclude others.
• Corpus is dealt u/ two headings:
1. The relation of the possessor to the thing, admit
use as per its nature.
2. The relation of the possessor to others
• Non-interference not necessary for continuation
of possession.
Critique on Salmond
• Corpus & animus ‘is’ not possession, but
are only conditions of it.
• Possession is not one thing at the commencement
& something else later.
• Possession is not lost if any one of corpus & animus
is lost.
• G L Williams alters this in his edition.

Holmes’s Theory
• Rejects a priori philosophical criteria.
• Fewer facts are needed for continuation
• Relation with thing & intent are facts.
• Offers no authority.
• Physical relation less important than the intent.
• Intent is intent to exclude others.
• Gives false explanation of Bridges v Hawksworth &
Durfee v Jones.
 Pollock’s Theory
• Laid stress on de facto control, not on animus.
• General intent seems to suffice.
• Difficulties in de facto control:
1. Custody of servants, etc.
2. Case law like Bridges v Hawkesworth.

Prof. Tay
• Possession is a present control of a thing, on one’s
own behalf and to the exclusion of others.
• It serves as a paradigm case.
• Departures on policy grounds can be openly
acknowledged.
• But control is a variable idea.
 Conclusions
• Striking similarities in Roman & British.
• Flexibility in the use of the concept.
• Theorising attempt serves as a warning against a
priori approach.
• Corpus & animus are not irrelevant.
• Possession carries with it a right to possess.

Conclusions
• Possession has three aspects:
1. The relation between a person and a thing is a
fact.
2. The advantages attached by law to that relation
is a matter of law.
3. These advantages are also attributed to a person
when certain other facts exist.
 April 12, 2020 Devidas G. Maley, Legal Rights 141

OWNERSHIP
• It is of both legal & social interest.
• It has become the focus of govt. policy.
• It consists of innumerable number of claims, liberties,
powers & immunities as to the thing owned.
• For some jurists ownership means just these claims, etc.
• This view is undesirable & inadequate.
 Ownership
• It denotes a multitude of claims, etc as an unit.
• Claims, etc constitute the content of ownership, but not
ownership itself.
• Many of these things can be transferred, still retaining
ownership.
• A person is entitled to these things by virtue of his ownership.
• Ownership as an asset has value apart from its components
claims etc.

Characteristics of Ownership
Incidents of a normal case of
ownership:-
1. Right to possess.
2. Right to use & enjoy.
3. Right to consume, destroy
or alienate.
4. Indeterminate in duration.
5. Residuary character.
 Analysis of Ownership or Subject
Matter of Ownership

• Evolution of the idea is different for land & chattel in British Law.
• Land holding is an index to person’s social status.
• Seisin: land holding in return for service.
• Distinction between seisin & possession.
• Writ of right & possessory assizes.
• Better right gave rise to ownership.
• ‘Owner’ appears in 1340 & ‘ownership’ in 1583 according to
Maitland.
• Tenant’s interest is not siesin but possession.

Analysis

• New remedies: trespass to protect the possessor&

ejectment for better title holder.
• Holdsworth: better claim than any one else.
• Defendant can set up a jus tertii.
• Emergence of conception of an absolute right –
ownership.
• Hargreaves challenge:1.not except in registered;2. Do not
bear out jus tertii.
• Extension of the idea of siesin to certain interests: estate
in the land.
 Chattels

• Of little significance.
• Originally no ownership in them.
• Transfer of equivalent chattels or money is enough.
• Maitland doubts of any right in goods deserving the name
ownership.
• The idea of title through trover & detenue.
• The Torts ( Interference with Goods) Act 1977.
• The Sale of Goods Act 1979-absolute ownership.
• Raymond Lyons & co Ltd v Metropolitan Police Comr: no title on
ring in jewelers.

Further Points to be noted

1. Ownership is used as to things: corporeal & incorporeal.

2. It is needed to give effect to the idea of ‘mine’ & ‘not
mine’ or ‘thine’.
3. It comprises of benefits & burdens.
4. The content of ownership may be vested in other person.
5. Owner may be divested of them to the extent of not
having any immediate benefit.
6. The ways in which it arises is different in different systems
 Types of Ownership
• Sole & co-ownership
• The fragmentation of
ownership in respect of
time
• Trust & beneficial
ownership
• Legal & equitable
ownership
• Vested & contingent
ownership

PROPERTY
• Concept & Classification of Property
• Meaning & Definition of Property
• Kinds of Property
• Ownership Of Material Things
• Movable & Immovable Property
• Real & Personal Property
• Rights in re propria in immaterial things
• Rights in re aliena
• Modes of Acquisition of Acquisition of Proeprty
April 12, 2020 Devidas G. Maley, Legal Rights 150
 The Concept and Classification of the Property
Law

Civil Law Criminal Law

Substantive Civil Law Procedural Civil Law

Law of Property Law of Obligations Law of Status

(Proprietary rights in rem) (Proprietary rights in personam) (Personal or non-proprietary rights
whether in rem or personam)

Jura in re propria Jura in re aliena

Leases Servitudes Securities

Material Things Immaterial Things

Land Chattel

Patents Designs Copyrights Trademarks, etc.,

Incorporeal Property
Corporeal Property

Intellectual Property

Meaning of the term Property

It possess a singular variety of having different degrees
of generality:
1. All legal rights: Blackstone: master has property in
servant & father in son. Hobbes: life & limbs,
conjugal relations, riches & means of living. Locke:
life, liberty & estate.
2. Proprietary rights: dominium & status
distinguished.
3. Proprietary rights in rem: dominium & obligatio
distinguished.
4. Corporeal property: dominium corporis &
dominium juris distinguished.
 Kinds of Property
MATERIAL { }
LAND CORPOREAL
PROPERTY
{
JURA IN RE THINGS CHATTEL

INCORPOREAL PROPERTY
PROPRIA PATENTS

PROPERTY
IMMATERIAL

LEASES
{
THINGS COPYRIGHTS
TRADE-MARKS
& etc.

ALIENA {
JURA IN RESERVITUDES

SECURITIES
& etc.

OWNERSHIP OF MATERIAL THINGS

• Right to the aggregate use of it, not limited right to use
it. It is a general right.
• But it is not absolute or unlimited use.
• Limits:
1. Limits imposed by the general law (sic utere tuo ut
alienum non laedas).
2. Encumbrances.
• It is permanent & inheritable.
• Crown as the actual owner: escheat & bona vacantia.
 Movable & Immovable Property
Immovable property includes the following
elements:
1. A determinate portion of the earth’s surface.
2. The ground beneath to the earth’s center
3. The column of space above.
4. All objects which are on or under the surface in
its natural state.
5. All objects placed permanently.
Remaining things are movable.
Applicability of this to rights by law. Local situation.

Real & Personal Property

• Real property: equivalent to law of land. Real Property

• Personal property: identical with the law
of movables.
• Legal significance of the term chattel: Immovable Property
1. A movable physical object.
2. Movable property, whether corporeal or
incorporeal; shares, debts, etc.
3. Personal property, whether movable or
immovable; leasehold.
Rights in re propria in immaterial things

1. Patents
2. Literary copyright
3. Artistic copyright
4. Musical & dramatic copyright
5. Commercial good-will; trade-marks & trade-
names.
6. Emergence of new varieties: designs, ICs, GIs,
protection of plant varieties, etc.

Rights in re aliena

1.Leases
Private Appurtenant
2.Servitudes
Public Gross

Mortgages
3.Securities
Possessory liens
Liens
Rights of distress or seizure
Powers of sale
Powers of forfeiture
Charges
Modes of Acquisition of Property
AGREEMENT
POSSESSION

INHERITENCE PRESCRIPTION

POSITIVE NEGATIVE

Limitation of time
Limitation of amount
Limitation of purpose

April 12, 2020 Devidas G. Maley, Legal Rights 160

 THE LAW OF OBLIGATIONS

The Nature of Obligation

• Popularly synonym for duty.
• In legal sense it differs from duty in several
respects:
1. Obligations are merely one class of duties,
correlatives of rights in personam.
2. It is a name not merely for duty but also the
correlative right.
3. All obligations pertain to the sphere of
proprietary rights.
 Definition of Obligation
“An obligation is a proprietary right in
personam or a duty which corresponds to
such a right.”
• The person bound is debtor & the
beneficiary is creditor.
• A technical synonym for obligation is chose
in action or thing in action.
• They are different from chose in possession.

Solidary Obligations
• A case of two or more debtors or creditors
• Each of the debtors is bound in solidum not
pro parte.
• It is defined as one in which two or more
debtors owe the same thing to the same
creditor.
• Three kinds of solidary obligations:
1. Several: independent vinculum juris
2. Joint: single vinculum juris.
3. Joint & Several: they stand half way between
the two extreme types.
 Examples of Solidary Obligations
1. Liability of principal debtor & surety.
2. Liability of 2 or more co-surities to the
same debt independently.
3. Separate judgments against 2 or more
persons liable for the same debt.
4. The liability of independent
wrongdoers whose acts cause the
same damage.

Examples of joint obligations:

• The debts of partners.
• Contractual that are not expressly reduced to
joint & several.
Examples of joint & several obligations:
• Joint committing of tort.
• Joint breach of trust.
• Contractual obligations expressly made joint &
several.
 The Sources of Obligations

CONTRACTUAL INNOMINATE

DELICTAL QUASI-CONTRACTUAL

OBLIGATIONS ARISING FROM CONTRACTS

• Contract wholly
comprised within the
law of obligations.
• Coincidence is not
logically complete.
• Example: promise of
marriage falls in the
law of status category
not obligations.
 Obligations arising from Torts
1. A tort is a civil wrong.
2. Appropriate remedy for it is an action for
damages.
3. Not a breach of contract.
4. Not breaches of trust or other equitable
obligations.

Obligations arising from Quasi-contracts

• They are contractual in

law though not in fact.
• Two classes of such
obligations:
1. All debts are deemed to
be contractual in origin.
2. such cases of tortuous
injury which allow the
person to sue in contract
instead of tort.
Reasons for recognizing the fiction of Quasi-contract:

1. Traditional classification into tort & contract is

not sufficient.
2. The desire to supply a theoretical basis for new
forms obligation established by judicial
decision.
3. The desire of plaintiffs to obtain the benefit of
the superior efficiency of contractual remedies.

Innominate Obligations

• This is a residuary
category.
• It includes obligations
of trustees towards
their beneficiaries.