Property in general
The Idea of Property
¨ Property is, in the broadest sense, any right that the law will protect against infringement by others.
¨ Main Goals – Fairness and Economic Efficiency are main goals of system
¨ Property is a convention which men uphold and obey because it is in their common interest to do so
¨ Property is metaphysical, based wholly on the laws that support it
¨ Private property is essential to economic and political freedom
Cohen
¨ Does private property (monetary interests) receive precedence over the sovereign duty of the state to maintain decent standards of living?
· to what effect do property rights give the “Haves” sovereignty over the “Have Nots” – i.e. wealthy few determine the mode of life of the many
ð forcing them to buy certain things (e.g. rent)
ð setting the trend to buy certain things (e.g. keeping up with the Jones’)
ü issue to the moral philosopher
· property law must be considered in light of social ethics and public policy
¨ Property denotes not material things but certain rights
· property right is a relation NOT between an owner and a thing, but between the owner and other individuals in reference to things.
ð essence of private property is always the right to exclude others
· property law determines what men shall acquire
¨ when should the States interfere?
· when ownership degenerates into public nuisances
ð rights of property must be supported by restrictions or positive duties on the part of owners
¨ Changing property law?
· not unless it leads to better results in line with desired outcomes of rights (i.e. policy)
Possession v. Title
Possession
¨ A person may be said to have possession if he has dominion and control over that thing (culturally contingent)
Title
¨ The union of all elements constituting a legal right to control and dispose of property
· Ownership – collection of rights allowing one to use and enjoy property, including the right to convey it to others
· Possession – the right under which one may exercise control over something to the exclusion of all others
· Custody – the care and control of a thing or person for inspection, preservation, or security
¨ The legal link between a person who owns property and the property itself
¨ Ultimate Dominion
¨ Absolute title
· The ability to give, sell, or acquire title
Definitions
Law v. Equity
¨ C
ights accompanying ownership of property
¨ Right to possess
¨ Right to use the property
¨ Right to exclude others from possessing or using the property
¨ Right to transfer the property
· as a gift
· as a sale
First Possession
Theories/Methods regarding possession
Occupancy Theory (and First in Time)
· Being somewhere first justifies ownership rights
· First person to take possession of a thing owns it
¨ Advantages
· there is real human economy in doing so until somebody shows a better claim than the possessor
· makes certainty, security of transaction, public peace
¨ Disadvantages
· How was it acquired? by conquest, by labor of many, by business manipulation, by other means
· difficultly in applying the theory in cases with factual complexity
· doesn’t take into consideration “intent”
Labor Theory
⋆ If you create it, you should have a property in it”
¨ Advantages
Private property arises in order to reward labor
