s1 Introduction Flashcards
what is the difference between property and contract?
a proprietary right is enforceable in rem against the rest of the world, whereas a contractual right is enforceable in personam against the other parties to the contract.
what topics are covered in this unit?
- characteristic of property
- distinguishing property and contract
- rationales for private property
- resources incapable of ownership
- possession
- personal property
- Remedies
what is a private property?
refers to a particular legal relationship that a person has with an object or resource
Legal characteristic of a property?
having certain rights in relation to an object Common
Common characteristic of a property?
owning an object
is contractual right more powerful than a proprietary right?
No,
property right is more powerful than a contract right bc a property right holder has an exclusive right to use the object or the resources against the rest of the world. In contrast, a contract right holder can enforce the terms of the contract only upon the contracting parties.
what is “Res Communes” theory?
means Resources incapable of ownership- argues that certain objects remain outside ownership on moral grounds
eg; public trust over natural resources (sea, beaches, forest, running water etc)
Problem of ‘tragedy of commons’ is that natural resources must be regulated to protect against self interest.
what is “Possession” theory?
Finders Keepers rule - where goods have been found or discovered, the person currently in possession (finder) obtains good title that is enforceable against everyone except the true owner.
rules of possession?
- if the object is attached or it’s under ground, the object belongs to the owner of that land
- if the object isn’t attached and it’s above the ground, then the finder become the possessor of the object unless the land owner has clearly marked their intention to own and control the land and everything on it.
can possession be obtained without consent?
yes, the person can be in possession and will have a legally enforceable interest until the owner repossess the property
what if the owner of a land give consent to possess the found object?
where the owner gives consent to a person, the person has legally enforceable possession.