Salmond on Ownership
Ownership denotes the relationship between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against the entire world and not merely against specific persons.
Incidence of Ownership
- The owner has the right to possess things that he owns.
- The owner normally has a right to use or enjoy the thing owned, the right to manage it, the right to decide how it shall be used and the right of income from it. However, Right to possess is not a right strictu sensu because such rights are in fact liberties as the owner has no duty towards others and he can use it in any way he likes and nobody can interfere with the enjoyment of his ownership.
- The owner has the right to consume, destroy or alienate the things. The right to consume and destroy are again straight forward liberties. The right to alienate i.e. the right to transfer the existing rights involves the existence of power.
- Ownership has the characteristic of being ‘indeterminate in duration’ and Ownership has a residuary character. Salmond contrasted the rights of the owner with the lesser rights of the possessor and encumbrancer by stating that“the owner’s rights are indeterminate and residuary in a way in which these other rights are not”.
Austin’s Concept of Ownership
Ownership or Property may be described accurately enough, in the following manner: ‘the right to use or deal with some given subject, in a manner, or to an extent, which, though is not unlimited, is indefinite’.
Now in this description it is necessarily implied, that the law will protect or relieve the owner against every disturbance of his right on the part of any other person. Changing the expression, all other persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of the right.
Austin further said that “Ownership or Property, is, therefore, a species of Jus in rem. For ownership is a right residing in a person, over or to a person or thing, and availing against other persons universally or generally. It is a right implying and exclusively resting upon obligations which are at once universal and negative”.
Dias on Ownership
After referring to the views of Salmond and other Jurists, Dias came to the conclusion that a person is owner of a thing when his interest will outlast the interests of other persons in the same thing. This is substantially the conclusion reached by many modern writers, who have variously described ownership as the ‘residuary’, the ‘ultimate’, or ‘the most enduring interest’.
According to Dias, an owner may be divested of his claims, etc., to such an extent that he may be left with no immediate practical benefit. He remains owner nonetheless. This is because his interest in the thing, which is ownership, will outlast that of other persons, or if he is not presently exercising any of his claims, etc., these will revive as soon as those vested in other persons have come to an end.
In the case of land and chattels, if the owner is not in possession, ownership amounts to a better right to obtain the possession than that of the defendant. It is ‘better’ in that it lasts longer. It is apparent that the above view of Dias substantially agrees with that of Salmond. According to Dias it is the outlasting interest and according to Salmond, ownership has the characteristic of being indeterminate in duration and residuary in nature
Types of Ownership
|Corporeal Ownership||Incorporeal Ownership|
|1. Corporeal Ownership signifies ownership in a physical object.
2. Corporeal things are things which can be perceived by senses.
|1. Incorporeal Ownership is a right or an interest.
2. Incorporeal things cannot be perceived by senses and are in tangible.
|When an individual owns, it is sole ownership||When there is more than one person who owns the property|
|Trust Ownership||Beneficial Ownership|
|1. There is no co-ownership.
2. The person on whom the responsibility lies for the benefit of the others is called the Trustee.
3. The trustee has no right to the beneficial enjoyment of the property.
4. Ownership is limited. A trustee is merely an agent upon whom the law has conferred the duty of administration of property.
5. Trusteeship may change hands.
|1. There can be co-ownership.
2. The person for whom the trust is created is called the Beneficiary.
3. The Beneficiary has the full rights to enjoy the property.
4. Ownership is complete.
5. Beneficial Owners remain the same.
|Legal Ownership||Equitable Ownership|
|Legal ownership is that ownership which has its basis in common law.||Equitable ownership comes from equity divergence of common law. Thus, distinction between legal and equitable ownership is very thin.|
|Vested Ownership||Contingent Ownership|
|1. Ownership is vested when the title is perfect.
2. Vested ownership is absolute.
|1. Ownership is contingent when it is capable of being perfect after fulfilment of certain condition.
2. Contingent ownership becomes vested when the conditions are fulfilled.
|Absolute Ownership||Limited Ownership|
|Ownership is absolute when possession, enjoyment, disposal are complete and vested without restrictions save as restriction imposed by law.||Limited Ownership is subjected to the limitations of use, disposal or duration.|
Salmond on Possession
Salmond said that in the whole of legal theory there is no conception more difficult than that of possession. The legal consequences which flow from the acquisition and loss of possession are many and serious. Possession, for example, is evidence of ownership; the possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title. The transfer of possession is one of the chief methods of transferring ownership.
Salmond also said that possession is of such efficacy that a possessor may in many cases confer a good title on another, even though he has none himself.
He also made a distinction between possession in fact and possession in law.
- Possession may and usually does exist both in fact and in law. The law recognizes as possession all that is such in fact, and nothing that is not such in fact, unless there is some special reason to the contrary.
- Possession may exist in fact but not in law. Thus the possession by a servant of his master’s property is for some purposes not recognized as such by the law, and he is then said to have detention or custody rather than possession.
- Possession may exist in law but not in fact; that is to say, for some special reason the law attributed the advantages and results of possession to someone who as a matter of fact does not possess. The possession thus fictitiously attributed to him is termed constructive.
In Roman law, possession in fact is called possessio naturalis, and possession in law as possessio civilis.
Corporeal and Incorporeal Possession
Corporeal Possession is the possession of a material object and Incorporeal Possession is the possession of anything other than a material object.
Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is distinguished aspossessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right. Salmond further said that “corporeal possession is clearly some form of continuing relation between a person and a material object. It is equally clear that it is a relation of fact and not one of right”.
What, then, is the exact nature of that continuing de facto relation between a person and a thing, which is known as possession?
According to Salmond, the possession of a material object is the continuing exercise of a claim to the exclusive use of it.
It involves two distinct elements, one of which is mental or subjective, the other physical or objective.
The mental element comprises of the intention of the possessor with respect to the thing possessed, while the physical element comprises of the external facts in which this intention has realised, embodied, or fulfilled itself.
The Romans called the mental element as animus and the subject element as corpus. The mental or subjective element is also called as animus possidendi, animus sibi habendi, or animus domini.
The Animus Possidendi – The intent necessary to constitute possession is the intent to appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object. Salmond made following observations in this regard.
- It is not necessarily a claim of right.
- The claim of the possessor must be exclusive.
- The animus possidend in need not amount to a claim of intent to use the thing as owner.
- The animus possidend in need not be a claim on one’s own behalf.
- The animus possidendi in need not be specific, but may be merely general. It does not necessarily involve any continuous or present knowledge of the particular thing possessed or of the possessor’s relation to it.
The Corpus Possessionis – The claim of the possessor must be effectively realized in the facts; that is to say, it must be actually and continuously exercised. The corpus possessionis consists in nothing more than the continuing exclusion of alien interference, coupled with ability to use the thing oneself at will. Actual use of it is not essential.
Immediate and Mediate Possession
The possession held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct.
There are three kinds of Mediate Possession:
- Possession that is acquired through an agent or servant who claims no interest of his own.
- The direct possession is in one who holds both on the actual possessor’s account and on his own, but who recognizes the actual possessor’s superior right to obtain from him the direct possession whenever he choose to demand it.
- The immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end.
Concurrent or Duplicate Possession
- Mediate and Immediate Possession co-exist in respect of the same thing as already explained above.
- Two or more persons may possess the same thing in common, just as they may own it in common. This also called as compossessio.
- Corporeal and Incorporeal Possession may co-exist in respect of the same material object, just as corporeal and incorporeal ownership may.
In Incorporeal Possession as well, the same two elements required, namely the animus and the corpus. In the case of incorporeal things, continuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it.
Incorporeal possession is commonly called the possession of a right, and corporeal possession is distinguished from it as the possession of a thing. The distinction between corporeal and incorporeal possession is clearly analogous to that between corporeal and incorporeal ownership.
Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like incorporeal ownership, is that of a right. In essence, therefore, the two forms of possession are identical, just as the two forms of ownership are.
Hence, Possession in its full compass and generic application means the continuing exercise of any claim or right.
Paton on Possession
Paton said that even though Possession is a concept of law still it lacks a uniform approach by the jurists. Some jurists make a distinction between legal and lawful possession. Possession of a thief is legal, but not lawful. In some cases, where possession in the popular sense is meant, it is easy to use some such term as physical control. Possession is also regarded as prima facie evidence of Ownership.
According to Paton, for English law there is no need to talk of mediate and immediate possession. The Bailee and the tenant clearly have full possession: Salmond’s analysis may he necessary for some other systems of law, but it is not needed in English law.
Oliver Wendell Holmes and Von Savigny on Possesion
Savigny with other German thinkers (including Kant and Hegel) argued that possession, in the eyes of the law, requires that the person claiming possession intend to hold the property in question as an owner rather than recognize the superior title of another person, so that in providing possessory remedies to lessees, Bailees, and others who lack such intentions, modem law sacrifices principle to convenience.
To this Holmes responded that he “cannot see what is left of a principle which avows itself inconsistent with convenience and the actual course of legislation. The first call of a theory of law is that it should fit the facts. It must explain the observed course of legislation. And as it is pretty certain that men will make laws which seem to them convenient without troubling themselves very much what principles are encountered by their legislation, a principle which defies convenience is likely to wait some time before it finds itself permanently realized.”
Holmes also criticised Savigny and other German theorists by saying that “they have known no other system than the Roman”. In his works, Holmes proved that the Anglo-American Law of Possession derived not from Roman law, but rather from pre-Roman German law.
One of Holmes’s criticisms of the German theorists, signally including Savigny, is that they “have known no other system than the Roman, ‘ .6 and he sets out to prove that the Anglo-American law of possession derives not from Roman law, but rather from pre- Roman German law.