Notes

Property And Kinds Of Property

  • PROPERTY :
  • The property is derived from the Latin term ‘properietat’ and the French equivalent ‘proprius’Which means a thing owned.
  • The concept of property and ownership are very closely related to each other. There can be no property without ownership and no ownership without property.
  • Theories of property :

1.Natural law theory [The theory of occupancy]:

  • According to this theory, the property was first acquired by the occupation of an ownerless object as a result of individual labor.
  • This theory is based on the principle of acquiring property i.e. res nullius means a thing which has no owner.
  • The finder of goods becomes the owner.
  • CRITICISM :

According to Bentham property has not originated by the first occupation of an ownerless thing, but it is a creation of law.

2.Labour Theory :[positive theory]:

According to this theory, a thing is the property of the person who produces it or brings it into existence.

  • Criticism:

According to LASKI labor does not produce property, it is only a means to earn property.

3.State creation theory:

  • According to this theory, the property is a creation of the state and achieved only after a long struggle with the clan.
  • JENKS observed that property and law were born together and would die together.

4.Historical Theory:

  • According to HENRY MAINE, in the beginning, the land was collectively owned by the community. Private or individual ownership is a later development.

5.Psychological Theory :

According to this theory, the property came into existence on account of the acquisitive tendency of human beings.

6.Functional theory:

The functional theory considers property as a social interest for promoting general security and protection of individual interest in personality, domestic relations and in subsistence.

                                   Kinds of property :

Property And Kinds Of Property

1.Corporeal Property:

  • Corporeal property is some material or thing.
  • Ex: land, house, money, etc.
  • Also known as tangible property.

2.Incorporeal Property :

  • It means intangible property.
  • The existence of incorporated property is neither visible nor tangible.
  • Ex: copyright, patent, trademark, etc.
  • Jura in re Aliena :
  • Also known as encumbrances.
  • Jura in re Aliena means right over other property.
  • These are the right in rem over the thing owned by another.
  • It includes a lease, securities, etc.
  • Jura in Re propria :
  • Jura in re propria means right over the property.
  • These are rights of ownership in one’s own property as are not exercised over material objects.
  • It includes trademark, patent, copyright.
  • Modes of Acquisition of Property:

1.Possession :

  • When the property which belongs to no one i.e. res nullius, belongs to the first possessor of it and he acquires a valid title to it as against the world.

EX: fish of the sea.

2.Perscription :

  • Prescription is a mode of acquisition of property by operation of law.
  • It is the effect of the passage of time.

3.Agreement :

  • Property may also be acquired by agreement which is enforceable by law.
  • The agreement has followed four essential elements:
  1. There should be two or more parties.
  2. Mutual consent.
  3. It should be communicated.
  4. There should be a common intention to affect the legal relationship.

4.Inheritance :

  • This can be of the form of testamentary succession.
  • Modes in which property may be divested :
  • By contract
  • By gift
  • By acquisition by the govt. under the law.
  • By giving to trust.
  • By operation of law.
  • Death, insolvency.

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