Property I Outline
1. What is Property?
a. Universal (every single society ever had some notion of private property), but local (every society develops their own notion of private property; hard to compare each society’s concepts)
b. Bundle of Sticks/Rights
i. Right to Use (and enjoy)
ii. Usufruct (Right to own the fruits created by the property)
iii. Right to Exclude
iv. Right to Transfer
1. Gift (with no compensation)
2. Sale (with compensation)
3. Devise (transfer upon death/will)
4. Descent (moves to next of kin by law)
· These are not absolute; they operate in the matrix of other rights
§ e.g. Right to use car? Limited by law (on roads); Right to exclude? Police can search if they want
Justifications of Private Property
Natural Rights Theory (ownership is an inherent human right)
Occupation (first in time, first in right)
Locke’s Labor Theory (mixing labor confers a right to own the property)
iv. Utilitarian (private ownership maximizes social welfare; the more the society believes in a strong notion of private property, the stronger that society is)
2. Ways to Acquire Property
a. Acquisition by Discovery
i. Title by discovery (sighting of unknown territory and taking possession gives good title)
ii. First in Time Rule (he who discovers property owns it)
iii. Chain of Title (quality of title depends on ownership in chain)
1. Derivative Title (owner of property cannot transfer a greater property interest than he/she actually has
a. e.g. [Johnson v. McIntosh – indians] P only has good title if Indians had good title; D only had good title if Great Britain had good title
i. Even though Indians were first, they did not permanently settle land; Indians only had a right of occupancy, as opposed to title (the right of occupation could be extinguished at the will of the govt.)
2. If O owns a watch, and A steals it; A has a void title; anyone that then possesses this stolen watch (if it is sold, etc.) will have the same void title
iv. Possession v. Title
1. First possession leads to first title (normally)
2. Possession can lead to title; in unowned objec
cial value as news has passed)
v. Patents
1. Granted for novel, useful and non-obvious processes or products
2. Can’t patent found objects; needs to be some invention
vi. Copyrights
1. Protects the expression of ideas in books, music or works of art
vii. Trademarks
1. Words and symbols indicating the source of a product or service
viii. Property in One’s Person
1. Don’t keep personal property rights in body tissue or fluids that have been removed
a. Each part of he human body has been treated separately (can’t make a general law from each individual case)
ix. Right to Exclude
1. Since you own the property, you can exclude whomever you want (with exceptions – police, etc.)
2. Does not extend equally to everyone
