Head 2: Rights and Things Flashcards
When did feudalism end?
On 28 November 2004 by the Abolition of Feudal Tenure Act 2000.
How can patrimonial rights be defined?
Patrimonial rights can be defined as the totality of a persons assets and liabilities. Every person thus has a patrimony.
How can rights be divided?
Rights can be divided into 2 categories:
- Rights in a thing (real rights)
- A real right is “as good as the right in the thing it exists in”
- Real right are enforceable against “the world” (erga omnes). [e.g. a bank enforcing a debt].
- Rights against a person (personal rights)
- this right is “as good as the person”
- Contracts are the main source of personal rights
Right in contract, right in delict, right in U/E, right of a beneficiary under a trust, right in private law.
What are subordinate or limited real rights?
These are rights over property owned by other persons: jura in re aliena.
e.g.
- Right in security (e.g. Mortgage)
- Lease of land (but not hire of moveables - this is just a contractual right)
- Proper Liferent (but not improper or trust liferent) (A right to possess a property)
- *Servitude
- Real burden (negative but not affirmative)
- Pledge
- Possession
Can a items of property have multiple real rights over them?
Yes - for example a house may have an owner (A), a tenant leasing the property (B) and there may be a mortgage over the house from a bank.
In addition single items of property may have multiple securities (for example) over them.
There can only be one owner of a thing. However, there can be shared ownership - but there is only one right of ownership.
What is the difference between corporeal and incorporeal?
On a traditional (but not undisputed) analysis, things may be incorporeal as well as corporeal.
⁃ Corporeal things are something which has a body, or physical presence.
⁃ Incorporeal things don’t have a physical presence: these can arise from nature (things like electricity and gas) or be artificial things. So incorporeal things can be:
(i) rights (both personal and real)
(ii) some odds and ends: Gases? Electricity? Crypocurrencies?
(iii) And since one has rights in things, it follows that one can have rights in rights (ie in incorporeal property - rights to be paid money, intellectual property (copyright), patents, servitudes, subordinate real rights, life insurance, company shares, etc.)
Example:
A has a lease over land belonging to B.
What right does B have in the land (corporeal property)? What right does A have in the land (corporeal property)? What right does A have in the lease (incorporeal property)?
A has the real right of ownership in the lease, which is itself a subordinate real right in the land. (lease is also a contract, resulting in personal rights.) The method of expressing A’s position will depend on which thing you are concerned with (ie the land or the lease).
What are the four classifications of things?
⁃ Corporeal heritable property
⁃ Corporeal moveable property
⁃ Incorporeal heritable property
⁃ Incorporeal moveable property
What is corporeal heritable property?
Land, and things which form part of land (partes soli) either naturally (eg soil, minerals and stones) or by accession.
⁃ This can include a lease
⁃ Anything else is movable
What is Incorporeal heritable property?
Two categories - (1) is MUCH more important than (2):
1) ‘All rights connected with or affecting any (corporeal) heritable subject’: Erskine II.2.5
⁃ Essentially this means rights which are closely connected with land (usually real rights in land [So for example, a tenant who has a right of lease over land - this is an example of incorporeal heritable property.])
2) Permanent rights not however connected with corporeal heritable property [These are regarded as heritable because they are so permanent - they are not connected with land.], e.g.
⁃ Titles and coats of arms
⁃ Rights which have a tract of future time (main example is an annuity)
What is Incorporeal moveable property? What isCorporeal moveable property?
All other incorporeal property. All other corporeal property.
What does Patrimony mean?
Patrimony (sometimes ‘estate’) means the totality of assets and liabilities held by a person, or by a person in a particular capacity. Normally the rule is one person one patrimony. [But in the law of trusts a person who is a trustee has two patrimonies, a trust patrimony and a private patrimony.]
