Property Theory-Definition of something as property
Possession-physical control over an item with possibility of excluding others
Possess-Conclusion by judge that you possess it
Ownership-Title to an object (ex-deed)
Property-Rights and relationships that exits between person and state with respect to valued resources, often but not always land and material objects
Certainty-everyone knows it
Allocation of risk/expenditures
Social policy and government interests
Aspects of property
Bundle of rights
· Exclude (can/can’t)
· Dispose (sell, will, gift)
· Enjoy fruits
· Think and dispose
· State protect you from acts of others
Theories of property:
1. Discovery – First in time, first in right, but must be an included party, consummated by possession, title goes to government against all others when consummated by possession
2. Occupancy- Hand in hand with possession, first in time, occupancy=possession/ownership
3. Labor- (Locke) by spending time and putting labor into something, ownership is achieved. A person has a moral right to ownership over the products of their labor, Moore case is contradictory
4. (Social) Contract- private property is a result of social contract theory, most basic and most problematic, everyone contracts together in agreement to rules
5. Natural Rights- The recognition that private property is a natural and justified law, there is inherent/natural idea of right and wrong
6. Social Unity- law should fulfill maximum happiness and welfare of the public, utilize resources for maximization of fulfillment
7. Economic- property rights create incentives to use resources efficiently (1) universality (2) exclusivity (3) transferability
8. Social Welfare- Property, both public and private, should promote wellness and be used to amass wealth and property, every case can use this as an argument
9. Utilitarian – Laws of property are conventions which we obey because it is our common interest to do so. Property is an expectation of deriving certain advantages from a “possession.” Dominant view of property today
II. Acquisition of Property
Discovery-Land, real property
Creation-software, ideas, research 7. Purchase-contrast to other 6
Pursuit vests no rights in pursuer.
Mortal wounding or death of an animal constitutes occupancy.
P only showed pursuit, not mortal wounding, therefore, no occupancy.
Ghen v. Rich (US District Court MA) (1881) (26)
FACTS Ghen (P) killed a whale and while waiting for it to wash ashore, it was taken by Ellis who sold it to Rich (D) who made a profit on the sale of whale parts. P claimed to be owner of the whale and sued D for the value of the whale.
It is customary that when the crew of a whaling ship killed a whale, the ship’s owner was considered to be the owner of the whale when it washed ashore.
ISSUE Is a marked whale the property of who killed it or who found it?
HOLDING Killed. P was able to recover the costs of his labor and whale. By using an identifiable bomb-lance, P did all he could to secure the whale.
Custom can be enforced when embraced by entire industry.
RATIONAL Business practice and custom
THEORIES Fast fish/Loose fish-fast fish belongs to the party fast to it, loose fish is fair game