Summary
Summary ownership notes
- Course
- Property Law (PVL2002H)
- Institution
- University Of Cape Town (UCT)
These are focused notes on Ownership that I made in preparation for my final exam.
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Property canned answers:Topic 1: The concept of ownership
the owner has the power to do as she pleases with the property owned within the limits imposed by
law. This view expresses the idea that ownership is the name given to the most extensive legal
relationship possible between a person and property; it also acknowledges, however, that, by
definition, ownership is not limitless.
ownership potentially confers the most complete and extensive control over property, subject to
what the law allows.
What it means for you to be the owner:
(1) For you to be the owner of a thing means that, in principle (in theory, potentially), you do (could)
have complete control (power) over that thing, and this in turn means that you do (could) have all of
the following entitlements (powers) in respect of that thing: to use it, to enjoy its fruits, to consume
and destroy it, to possess it, to dispose of (alienate) it, to reclaim it from anyone who unlawfully
possesses it (vindicate it), and to resist any unlawful invasion of it.
(2) However, for you to be the owner of a thing does not, in practice, mean this: on the one hand,
because the various entitlements (powers) in respect of that thing which are listed in the first
proposition could be, and invariably are, limited (by the law and by the limited real rights and
personal rights of others); on the other hand, because you remain the owner of the thing, these
limitations on your entitlements (powers) in respect of it notwithstanding.
(3) Possibly, for you to be the owner of a thing means also that, if a limitation on any of the
entitlements (powers) in respect of that thing which are listed in the first proposition is removed,
you automatically recover as much of that entitlement (power) as was so limited.
The four basic components of rights are known as “the Hohfeldian incidents” after Wesley Hohfeld
(1879–1918), the American legal theorist who discovered them. These four basic “elements” are the
privilege, the claim, the power, and the immunity. Each of these Hohfeldian incidents has a
distinctive logical form, and the incidents fit together in characteristic ways to create complex
“molecular” rights. Once one knows the Hohfeldian system, one can analyze precisely what any
assertion of a right might mean.
Privileges (or Liberties)
You have a right to pick up a shell that you find on the beach. This right is a privilege:
A has a privilege to φ if and only if A has no duty not to φ.
Claims
A contract between employer and employee confers on the employee a right to be paid her wages.
This right is a claim:
A has a claim that B φ if and only if B has a duty to A to φ
Some claim-rights exist independently of voluntary actions like signing a contract; and some claim-
rights correspond to duties in more than one agent. For example, a child’s claim-right against abuse
exists independently of anyone’s actions, and the child’s claim-right correlates to a duty in every
, other person not to abuse him (in legal terms, the claim right is in rem). This example of the child’s
right also illustrates how some claim-rights can require duty-bearers to refrain from performing
some action.
Bodily rights and property rights are paradigmatic rights with claim-rights at their core
Powers
The Hohfeldian power is the incident that enables agents to alter primary rules:
A has a power if and only if A has the ability to alter her own or another’s Hohfeldian incidents.
Immunities
When A has the ability to alter B’s Hohfeldian incidents, then A has a power. When A lacks the ability
to alter B’s Hohfeldian incidents, then B has an immunity:
B has an immunity if and only if A lacks the ability to alter B’s Hohfeldian incidents.
Opposites and Correlatives
Hohfeld arranged the four incidents in tables of “opposites” and “correlatives” so as to display the
logical structure of his system.
Opposites
If A has a Claim, then A lacks a No-claim.
… a Privilege, … a Duty.
… a Power, … a Disability.
… an Immunity, … a Liability.
Correlatives
If A has a Claim, then some person B has a Duty.
… a Privilege, … a No-claim.
… a Power, … a Liability.
… an Immunity, … a Disability.
Molecular Right
the “first-order” rights are your legal rights directly over your property— in this case, your computer.
The privilege on this first level entitles you to use your computer. The claim correlates to a duty in
every other person not to use your computer
The “second-order” rights are your legal rights concerning the alteration of these first order rights.
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