- •Contents
- •Table of Cases
- •List of Contributors
- •Introduction
- •1. Bottom-Up Theories
- •2. The Humean Approach
- •1. Introduction
- •2. The Moral Right to Labour Productively
- •2.1 The intellectual context for Lockean rights
- •2.2. Labour as a moral right
- •3. Property Acquisition in Labour Theory
- •3.1 Extending labour from the person to things
- •3.2 The social character of productive appropriation
- •3.3 Productive use as a limit on labour
- •3.4 The communicative function of productive labour
- •4. Control Rights in Labour Theory
- •5. Accession in Labour Theory
- •6. Lost Opportunities to Capture in Doctrine
- •7. Acquisition in Doctrine
- •7.1 The basic test for capture
- •7.2 Constructive capture
- •7.3 Multiple proprietary claims
- •8. Accession Policy and Ratione Soli Doctrine
- •9. On the Relation between Legal Property and Moral Rights to Labour
- •10. Conclusion
- •3: Property and Necessity
- •1. Some Conceptual Preliminaries
- •2. Winstanley’s Challenge
- •3. Grotius on Property and Necessity
- •4. Three Important Objections
- •5. Saving Property and Public Necessity
- •6. Is the Right of Necessity a Property Right?
- •4: Private Property and Public Welfare
- •1. The Fifth Amendment Paradox
- •2. Why Acquisition?
- •3.1 Physical possession
- •3.3 Exchange
- •4. Property in Civil Society
- •4.1 The origin of welfare entitlements
- •4.2 Civil society as a bifurcated entity
- •5. Property in the Political Community
- •5.1 Property in the totalitarian state
- •5.2 Property in the dialogical state
- •6. Conclusion
- •5: Average Reciprocity of Advantage
- •1. Introduction
- •2. Background
- •2.1 Judicial opinions
- •2.2 Academic commentators
- •3. Sources of Average Reciprocity of Advantage
- •4. The Limits of ‘In-Kind’ Compensation
- •4.1 General reciprocity
- •4.2 Probabilistic compensation
- •4.3 Basic structural problems
- •5. Reciprocity and Respect
- •5.1 Accepting the conclusion
- •5.2 Rejecting the premisses
- •5.3 Partial, ‘objective’ compensation
- •6. Conclusion
- •1. Introduction
- •2. Between Promise and Detachment
- •2.1 The moral principle
- •2.2 The value of LPA
- •3. Legal Enforcement
- •3.1. Encouraging pre-contractual Investment
- •3.2 Building up trust: the role of LPA
- •4. Proprietary Estoppel
- •4.1 Varieties of PE
- •a) Bargain
- •b) Gifts
- •4.2 The remedy
- •5. Conclusion
- •7: Possession and Use
- •1. Possession
- •2. The Priority of Exclusion
- •3. Bringing Actual Use Back In
- •4. Conclusion
- •8: Possession and the Distractions of Philosophy
- •1. Introduction: The Puzzle
- •3. Possession and Title
- •4. The Right of Possession and its Omnilateral Structure
- •5. Possession and the Incidents of Ownership
- •6. A Principled Practice of Property?
- •7. Conclusion
- •9: The Relativity of Title and Causa Possessionis
- •2. Privity, Estoppel, and Rights to Possess outside of Ownership
- •2.1 A public law problem?
- •2.2 Privity: the missing link between property and person
- •2.3 Let the chips fall where they may
- •3. Conclusion
- •1. Introduction
- •2. Setting the Limits of Property Rights
- •2.1 Where A has an undoubted property right
- •a) The ‘right to exclude’
- •b) The ‘right to use’
- •i. Chattels
- •ii. Land
- •c) Conclusion
- •2.2 Determining if B’s right counts as a property right
- •a) Physical things
- •b) Non-physical things
- •c) Equitable property rights
- •3. Conclusion
- •11: On the Very Idea of Transmissible Rights
- •1. Title and Succession
- •2. The Argument against Transfer or Transmissibility Stated: The Hohfeldian3 Individuation Argument
- •3. Why the Hohfeldian Individuation Argument is Wrong
- •4. Justifying Transmissible Rights
- •4.1 The power to authorize what would otherwise be a battery
- •4.2 The right to immediate, exclusive possession of property
- •4.3 The power to license and to give property away
- •4.4 The power to sell or transfer pursuant to an agreement
- •4.5 The liability to execution
- •5. A Last Word on Conventions and Social Contexts
- •12: Psychologies of Property (and Why Property is not a Hawk/Dove Game)
- •1. The Inside Perspective
- •1.1 Identity formation
- •1.2 Identity fashioning
- •1.3 Refuge
- •1.4 Empowerment
- •1.5. Generosity
- •1.6 Economic incentives
- •1.7 An admonitory postscript
- •2. The Outside Perspective
- •2.1. The picture from in rem
- •2.2 Hawks and Doves
- •2.3 The virtues of non-ownership
- •13: Property and Disagreement
- •1. Disagreements Substantive and Verbal
- •1.1 Verbal disagreements
- •1.2 Disagreement that is partly substantive and partly verbal
- •a) Clarifying the disagreement
- •b) The analysis of property
- •c) The metaphysics of property
- •d) What about W2 and W3?
- •3. A Minor Disagreement that is both Substantive and Conceptual
- •4. Penner Redux: A Major Disagreement that is both Substantive and Conceptual
- •4.1 Reservations: of Wittgenstein and Dworkin
- •4.2 Individuation and incomplete understanding
- •5. The Nature of Property
- •5.2 Smith and the architecture of property
- •6. Conclusion
- •Appendix
- •14: Emergent Property
- •1. Intensions and Conceptualism in Property Law
- •2. Formalism versus Contextualism
- •3. Functionalism
- •4. Holism and Emergence
- •5. An Application to in Rem Rights and Duties
- •6. Conclusion
- •References
- •Index
Defining Property Rights |
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particular activities of the parties. On the model proposed in this chapter, by contrast, decisions as to property rights do not involve the allocation of particular uses or the distribution of particular sticks in a bundle of rights. Indeed, the structure of property law can be understood without examining the positive uses that A may make of A’s thing. In this sense, property law operates in a ‘low cost’ way: it does not identify and allocate particular uses of a resource.20 It has no need to undertake such a complex process as A’s liberties in relation to a particular thing derive simply from the general proposition, broader than and prior to property law, that any action of A (or X) is permitted if it is not wrongful. Property law takes advantage of that proposition in a very efficient way: when complemented by the existence of a prima facie duty, owed to A by the rest of the world, not to interfere deliberately or carelessly with a physical thing, it ensures that A has, in Harris’s words, an ‘openended set of use privileges’ in relation to that thing. Any analysis which assumes that property law seeks to allocate particular sticks in a bundle of rights therefore misses a key point noted by Merrill and Smith,21 and buttressed by a Hohfeldian approach: the varied physical uses that an owner may make of a thing are not protected directly by claim-rights against the right of the world. The potential for A’s physical enjoyment of the thing would exist independently of property law;22 property law need only provide a prima facie duty owed to A by the rest of the world.
2.Setting the Limits of Property Rights
2.1Where A has an undoubted property right
We have seen that, on a Hohfeldian approach to property rights, it is vital to establish the precise nature of the prima facie duty owed by the rest of the world to A, a party with a property right. In this section, we will consider the scope of that duty in cases where A has a clear property right, such as a freehold of land or ownership of a chattel. The argument made in this section is that the duty, which correlates, in somewhat loose terms, to A’s ‘right of exclusion’, consists only of a duty not to deliberately or carelessly interfere with A’s physical thing. It does not extend to a duty not to interfere with particular positive uses that A may wish to make of A’s thing.
a) The ‘right to exclude’
An owner of a thing, whether it is a chattel or land, has a ‘right to exclude’ others from the thing. Some scholars have singled out this right as the most significant
20 |
See too Smith 2012b. |
21 See e.g. Merrill and Smith 2007b, I-28 ff.; Smith 2002. |
22 |
This seems to be the point that Penner 1996a has in mind when noting at 766 that: ‘owning |
property provides an owner with no powers that he did not have before. An owner’s “use rights” in property turn on whatever natural capacities an owner or his licensees have to exploit “things” that can be objects of property, such capacities being protected by the right of exclusive use for those things he owns.’
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Simon Douglas and Ben McFarlane |
right held by an owner. Merrill, for instance, writes ‘Give someone the right to exclude others from a valued resource . . . and you give them property. Deny someone the exclusion right and they do not have property.’23 Some refinements are required before this ‘right to exclude’ can be translated into Hohfeldian terms. Exclusion, on its face, relates to a particular activity which A may carry out in relation to his thing. As noted above, it is impossible for A to have a Hohfeldian claim-right which refers solely to an activity of A. The right to exclude could be understood as a Hohfeldian liberty physically to keep others away from A’s thing, but it would be difficult to argue that such a liberty is a necessary component of the concept of property.24 To understand the ‘right to exclude’ as a claim-right, we need to focus not on A’s activities in relation to the thing, but rather on those of the rest of the world. The ‘right to exclude’, as a claim-right prima facie binding on the rest of the world, correlates to duties owed by the rest of the world to A. This legal duty can be readily inferred from tort law. A tort, which is a type of civil wrong, involves the breach of a legal duty.25 This means that if a third party, let us say B, is held to have committed a tort by physically interfering with A’s chattel or land, we can infer from B’s liability in tort law that he is under a legal duty to A (as are all other third parties: C, D, E etc.) not to physically interfere with A’s thing. It is the law of torts, therefore, which recognizes that the holder of a clear property right in a thing is owed a legal duty by all others not to physically interfere with the thing.
Beginning with moveable things, or chattels, it is the three torts of conversion, trespass, and negligence that recognize that an owner of a chattel is owed such a legal duty. A simple illustration can be found in the case of Vine v Waltham Forest Council where the claimant was an owner of a car that was clamped by the defendant local council and was charged £108 to have it removed. Because the clamp warning sign was not properly visible the claimant had not consented to the interference with her car and she successfully sued for trespass to goods. This straightforward claim demonstrates that the defendant was under a legal duty to the claimant (as were all other third parties) not to physically interfere with her car. When the defendant did physically interfere with the claimant’s car, in the form of clamping it, this was a breach of a legal duty and hence a ‘tort’.
The duty not to physically interfere with an owner’s chattel is not an absolute duty because the torts which recognize this duty also have requisite mental states. In the torts of conversion and trespass it must be shown that the defendant’s physical interference with the claimant’s chattel was deliberate,26 whereas in the tort of negligence it must be shown that the interference was brought about negligently. Where the physical interference is neither deliberate nor negligent, therefore, the defendant will not be in breach of this duty. An example is the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1)
23Merrill 1998; Cohen 1954, 371.
24See Penner 1996a, 743–4: ‘The fact that we may not have the right to throw trespassers off our land, and must call the police to do so instead, for instance, does not mean that we do not have a right to the land, but only that our means of effecting the right are circumscribed.’ Penner therefore prefers the term ‘right of exclusion’.
25 Birks 1995. |
26 BMW Financial Services (GB) Ltd v Bhagwanani 2007. |
Defining Property Rights |
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where the defendant causally contributed to the partial physical destruction of the claimant’s wharf (in the form of fire damage) by releasing bunkering oil into a harbour. However, because the fire had not been reasonably foreseeable, it was held that the defendant had not been negligent in respect of the fire damage and so was not liable in tort law. The duty owed to an owner of a chattel not to physically interfere with his chattel is not an absolute one: it is therefore most accurately described as a duty not to deliberately or carelessly interfere with the chattel.
Turning to land, the principal torts protecting land, trespass, negligence and nuisance, reflect a similar duty. Again, to give a simple illustration, in Ellis v Loftus the defendant’s horse put its head through the railings that separated the defendant’s land from the claimant’s and bit the claimant’s horse. This crossing of the boundary, albeit by a very short distance, was held to be a trespass, Lord Coleridge saying: ‘ . . . if the defendant place a part of his foot on the plaintiff ’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it . . . ’27 The defendant’s liability in tort for this physical intrusion demonstrates that he is under a legal duty to the claimant, as are all other third parties, not physically to intrude upon the claimant’s land. Again, this duty is not absolute as the torts have requisite mental states, namely that the interference be deliberate or negligent.28
What constitutes a ‘physical interference’ with land is usually slightly different to a physical interference with a chattel. In the context of chattels, a physical interference typically takes the form of physical contact with the chattel or causing physical damage to it: touching the surface of a painting, punching a hole in it, slashing it with a knife etc. are all clear forms of physical interference. In the context of land, however, the physical ‘interference’ usually takes the form of an intrusion, a physical crossing over the boundary of the claimant’s land. This is due to the ad coelum principle that a freeholder’s right does not just relate to the surface of his land, but to a vertical column extending both upwards and downwards. Take, for instance, Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd,29 where the top of the defendant’s crane, elevated at a great height, oversailed the claimant’s land and this was held to be sufficient for liability in trespass. It cannot really be said that the defendant’s crane made ‘physical contact’ with the claimant’s land. Rather, the physical interference consisted of the defendant’s crossing of the claimant’s boundary. The notion of physically interfering with a claimant’s land by crossing its boundary has been developed and extended by the tort of nuisance. It is difficult to draw a clear distinction between the actions of trespass and nuisance,30 but, broadly speaking, when the thing crossing the boundary of the claimant’s land has, in Merrill’s words, ‘physical dimensions’,
27Ellis v Loftus 1874, 12. See also Lawrence v Obee 1815, Gregory v Piper 1829, and Kynoch v Rowlands 1912.
28Goldman v Hargrave 1967. Although, it is not clear if the defendant need be at fault if he has an ultra-hazardous risk on his land: Rylands v Fletcher 1868, cf. Cambridge Water Co. Ltd v Eastern Counties Leather Plc 1994.
291987. See also Star Energy Weald Basin Limited and another (Respondents) v Bocardo SA (Appellant) 2010.
30See Nolan 2012.