!!Экзамен зачет 2023 год / Honore. (with editorial intr. by Hodgson)

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may acquire the corresponding rights; is the state’s interest ownership or a mere expectancy?

A warning is here necessary. We are approaching the troubled waters of split ownership. Puzzles about the location of ownership are often generated by the fact that an ultimate residuary right is not coupled with present alienability or with the other standard incidents we have listed. Was the feudal lord’s right of escheat ownership or merely an expectancy? When land was given in emphyteusis, was the emphyteuta or the reversioner owner? Other puzzles are created by cases of cross-residuarity. When property is held subject to a fideicommissum in the modern law, the fideicommissary benefits from the lapse of the fiduciary’s rights and vice versa; so which is really residuary?

We are of course here concerned not with the puzzles of split ownership but with simple cases in which the existence of B’s lesser interest in a thing is clearly consistent with A’s owning it. To explain the usage in such cases, it is helpful to point out that it is a necessary but not sufficient condition of A’s being owner that, either immediately or ultimately, the extinction of other interests would enure for his benefit. In the end, it turns out that residuarity is merely one of the standard incidents of ownership, important no doubt, but not entitled to any special status.

The thing owned

‘To own’ is transitive; the object of ownership is always spoken of as a ‘thing’ in the legal sense, a res. There is, clearly, a close connection between the idea of ownership and the idea of things owned, as is shown by the use of words such as ‘property’ to designate both. We ought, apparently, to be able to throw some light on ownership by investigating ‘things’. [129]

Outside the law, external material objects are thought of as the prime examples of things and, in this sense, things are contrasted with persons. But, in a wide sense, any object of discourse may be called a thing – events, states, emotions, actions, processes are all things. The extra-legal use of ‘thing’ is therefore not likely to help us in finding out what can be owned.

In the law we find the following position. As regards external material objects, it is natural to speak of ownership. A person ‘owns’ a book, house, or car. The terminology of ownership is also extended to some things other than material objects. A person may ‘own’ a copyright, leasehold property, goodwill, a business, patent rights. In these cases, the analogy with the incidents of the ownership of external material objects is a close one.

In other cases, the holder of a right is said to ‘have’ rather than own the interest in question. Thus, one ‘has’ an easement or a chose in action or a reputation. Here the analogy with the ownership of material objects is less strong or, as in the case of easements, the alternative expression is adopted to avoid confusion with the ownership of the material object to which the right relates.

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In other cases again, we speak not of ‘having’ a thing but of ‘having a right’ to or in something. Thus, a person does not either ‘own’ or ‘have’ his body or liberty. He has a right to bodily security or liberty. Here the analogy with the ownership of a thing is tenuous; thus, these rights are inalienable. Finally, there are interests which the law refuses to recognize: one does not own, have or have a right to them. An example in English law is privacy.

In any viable society we shall expect certain interests (having a house, clothes, food, preserving one’s body from harm) to be protected, but, as regards many other interests (copyright, reputation, privacy, shares) there will be nothing absurd in a system which does not protect them, though it may be an inconvenient system. There will be no way of telling, apart from knowing the details of a system, whether such interests are protected and, a fortiori, no way of telling whether they are con[130]ceived as consisting in the ownership of things. Apart from the basic interests mentioned, protection of an interest is not merely the recognition of a social necessity. The meaning of the words ‘right’ or ‘thing’ will not help one to guess what the decision has been or is likely to be.

Much the same may be said of the difference between simple rights and interests conceived in terms of ownership. A person is not, in most systems, regarded as owning his body, reputation, skill, honour, or dignity. At most he has a simple right to these things, which are therefore not legally ‘things’. By a ‘simple right’, I mean one which is protected by law but is not alienable or transmissible. Now it may be that the doctrine that one does not own one’s body, etc., is influenced by the linguistic fact that such aspects of one’s person do not fall within the prime class of things, external material objects. But a more likely explanation is simply that it has been thought undesirable that a person should alienate his body, skill, or reputation, as this would be to interfere with human freedom. When human beings were regarded as alienable and ownable they were, of course, also regarded as being legally things: and it is quite easy to conceive arrangements under which one could, for instance, lease one’s reputation or one’s skill for a term of years, so that the lessee could sue for infringements of the lessor’s good name or for the fruits of his work. It may, indeed, be argued that contracts for the assignment of goodwill and contracts of service are examples of at least partial alienations of these interests.

However that may be, it is clear that to stare at the meaning of the word ‘thing’ will not tell us which protected interests are conceived in terms of ownership. When the legislature or courts think that an interest should be alienable and transmissible they will rei-fy it and say that it can be owned, that it is property. They will not say that it can be owned and is a res because of a prior conviction that it falls within the appropriate definition of ‘thing’. The investigation of ‘things’ seems to peter out in a false trail.

A more promising approach is to try to classify the things [131] that can be owned. An obvious classification is into material objects and things that are not material objects (incorporeals). According to one school of thought, this division

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is so important that only corporeals can really be owned; according to another, it is so unimportant that we ought always to speak of owning rights over material objects, never of owning the objects themselves; in this way we shall keep in mind the parallel with the ownership of incorporeal rights.

Both schools propose a departure from lay and legal usage which stands in need of justification. The former has little to commend it. Consider the difference between ‘owning’ land and ‘owning’ (having) an easement over land. The first counts as the ownership of a material object, the second of an incorporeal. Yet their incidents are in every way similar and, in both cases, include the right to exclude others from interfering with or obstructing a particular physical thing, a right which at first sight might seem to differentiate the ownership of material objects from the ownership of incorporeals. It is true that, when we come to consider claims, we find cases in which there is either no right to exclude others or no right to exclude them from a particular physical thing.

Copyright is an example of one type of claim. It involves the right to prevent others publishing, etc., one’s written work without consent, and hence a sort of right to exclude others; but this right does not relate to a particular physical thing, a particular book. It relates to all material objects which have certain characteristics, viz. that they are copies of the work in question. Again, it is not clear that the incident of prohibition of harmful use applies in a straightforward way to copyrights: on the other hand, convincing analogues of the other standard incidents are to be found. Thus, it may be said that the notion of ownership applies to copyrights in an extended and somewhat weaker sense than that in which it applies to material objects and interests in them.

Debts due and other choses in action present an example of another type of claim. Here the claim is to the performance of some positive act. No right to exclude others is involved, and, [132] as in the case of copyrights, no question of harmful use arises. On the other hand, incidents such as alienability (nowadays) and transmissibility do apply to choses in action. Hence, the ownership of choses in action is to be understood in a still weaker sense than that of copyrights.

It seems, therefore, as if a more useful classification of things owned than that into corporeals and incorporeals would be into material objects and rights in them, claims, and collections of objects and claims. Slightly expanding this, we get the following list:

(1)Material objects and interests in material objects;

(2)Claims and interests in claims;

(3)Fixed collections of material objects, claims, or both;

(4)Variable collections of material objects, claims, or both;

(5)Funds.

The list is self-explanatory, ‘claims’ being understood to exclude such claims as amount to interests in material objects. The introduction of fixed and variable collections is necessary in order to accommodate the ownership of estates,

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a trespasser or disseisor. Hence, there may be problems of priority of title. What is not, at first sight, clear is whether the name ‘owner’ should be confined to the person with the best title to a thing out of all possible claimants (the title, a good title) or whether we should in such cases speak of two or more ‘owners’ of the thing ranking in a certain order.

Modes of acquisition

These obviously vary from system to system. It is often thought that light can be thrown on the concept of possession by a study of the conditions for acquiring possession; ought not the same procedure to be fruitful in the study of ownership? Holmes, following a general theory about the analysis of legal concepts, approaches the matter in this way,30 but without yielding more than a catalogue of modes of acquisition. On the other hand, some writers who wish to justify the institution of ownership as a fair one, in spite of the apparent injustice involved in excluding all save the owner from the thing owned, argue that, though there are various modes of derivative acquisition, there is only one mode of original acquisition, namely taking possessions.31 They go on to say that the labour involved in taking or making the thing justifies the taker in retaining it against subsequent claimants and transmitting it to others.

The argument is certainly not, apart from its other defects, consistent with positive law. Thus, in South Africa, land cannot be acquired by occupatio but only (apart from irrelevant [136] exceptions) by Government grant, statute, or 30 years’ prescription. The truth is that modes of acquisition, original and derivative, are many and various; one of the functions of expressions such as ‘he is owner’ is precisely to draw similar legal conclusions from varying states of fact.32

If, therefore, we are to seek moral reasons why particular persons ought to own particular things, we shall need different reasons for different modes of acquisition; and derivative modes of acquisition stand in need of justification as much as original. There are in fact good reasons why the commonest modes of original acquisition (making and taking) and of derivative acquisition (consent and debt) should be recognized. If these are thought morally satisfactory, we have arrived at a justification for the adoption by a legal system of certain modes of acquisition; what we have not found is a justification for the institution of ownership. I do not, of course, wish to imply that none can be found.

Modes of loss

Once derivative modes of acquisition are recognized, modes of loss or extinction must also be recognized. These give little difficulty when the loss is with the

30The Common Law, p. 245.

31Locke, Second Treatise on Civil Government, ch. 5, s. 26.

32This is overlooked by A. Ross, Tuˆ-Tuˆ (1956–7), 70 Harv. L.R. 812.

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derived title from the Quiritary owner. The division between the two is a case of split ownership, not of independent titles. The bona fide possessor in via usucapiendi also had a title, a type of ‘bonitary’ ownership, defeasible only by the true owner; this is, perhaps, the only exception in Roman law to the rule that there was only one title. When the periods of usucapion were short, it was not an exception of much importance; after a year or two there was, once again, only a single title. As the periods were increased the exception grew in importance. Roman law held to the theory that, in such cases, there was only one dominos.

Under a unititular system, one way of ascertaining the true owner is by tracing title to the original acquirer. With land, especially, this is seldom practicable. The remedy may lie in rules either of substance or procedure. A substantive rule creating a mode of acquisition which has a divesting effect may meet the need, especially if the period is fairly short. A ruthless form of divesting is found in French law, where the maxim that possession of movables is equivalent to title is interpreted to mean that if a bailee of goods delivers them by way of sale, gift, etc., to another, he thereby divests the title of the bailor, leaving him to his action for damages against the bailee.

In Roman law, given the rule that theft or violent dispossession was a bar to acquisition running with the thing, it was theoretically necessary to trace title to the original source in order to see whether a ‘vice’ affected the property. If therefore the difficulty of proof of title is, as Hargreaves asserts,34 a reason against adopting the terminology of ownership, his argument would apply with as much force to Roman and modern civil law as to English law.

In practice, in modern systems based on Roman law, rules of evidence help to overcome the practical difficulties. Possession, unless otherwise explained, is regarded as evidence of ownership and an earlier possession is regarded as better evidence of ownership than a later, independent possession. Registration of [139] title is really an evidentiary device of the same order. In most systems registration does not have a divesting effect;35 the register may be rectified at the instance of the true owner (or, in a multititular system, someone with a better title than the registered owner). The register merely makes it possible to discover without difficulty who is presumptively owner.

With unititular systems we may contrast multititular systems. As we have seen, these turn on the possibility of acquiring title without the consent of the present owner of a thing by a process which does not have a divesting effect. Such systems may take either a ‘conservative’ or an ‘active’ form. In the former, the earlier titles continue to be valid indefinitely or for a very long time. In the latter, either the right or the remedy is barred after a relatively short period. Again, if the title of a thief or trespasser is recognized, the system is thereby rendered more ‘active’.

34Hargreaves, Terminology and Title in Ejectment (1940), 56 L.Q.R. 376, 377.

35Wade and Megarry, The Law of Real Property (2nd ed.), p. 960, n. 33.

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The English system as regards both land and chattels falls into the multititular category. As regards land, a title could and can be acquired without the consent of the previous owner by mere disseisin or dispossession.36 It was a principle of the medieval law that a disseisor ipso facto acquired an estate in fee, albeit a tortious estate. ‘Every fee simple is not legitimum, for a disseisor, abator, intruder, usurper, etc. have a fee simple, but it is not a lawful fee’.37 In the modern law it seems that a dispossession adverse to the present holder gives the trespasser or squatter an estate in fee simple;38 despite Holdsworth,39 every adverse possession is a root of title,40 though the title may lapse on abandonment.41

Such ease of acquisition is consistent with a unititular system. Thus, in the early land law, disseisin had a divesting effect; the disseisee had a mere right of entry, which might be tolled, [140] and was inalienable. Since the 19th-century reforms, the disseisee or his modern equivalent can alienate his interest inter vivos or on death and it descends to his personal representatives.42 Hence, as Megarry and Wade say, when S dispossesses O, ‘S’s possession gives all the rights and powers of ownership: S has, in fact, a legal estate, a fee simple absolute in possession. But so also has O, until such time as his title is extinguished by limitation. There is no absurdity of speaking of two or more adverse estates in the land, for their validity is relative.’43

If, then, S and O both have fees simple, shall we say that both are owners of the land? Or shall we call S, the present possessor, alone owner but say that his ownership may be divested; or, again, that O, since his claim is ultimately entitled to prevail, is alone owner? One cannot expect clear criteria for answering such questions. S, however, has every incident of ownership except security against divesting, while O has every such incident except present enjoyment. There is much to be said, therefore, for treating them as independent owners rather than as persons sharing a single, split ownership.

On the other hand, it may be argued that, in view of such puzzles, it would be better not to speak of the ownership of land in English law at all. This argument ignores the many straightforward cases in which there is a single tenant in fee simple and no competing title.

Hargreaves, who argues against speaking of ‘ownership’ in English land law, relies on the fact that in actions for the recovery of land the plaintiff need only

36Littleton, Tenures, pp. 473, 519, 520; Asher v. Whitlock (1865), L. R. i Q. B. 1; Allen v. Roughley (1955), 94 C.L.R. 98.

37Coke on Littleton, 2a; see also ibid., 297a.

38Lightwood, The Time Limit of Actions, p. 125.

39History of English Law, Vol. 7, p. 64.

40Some authorities go no further than to say that possession is prima facie evidence of seisin in fee and so of a title: Allen v. Roughley (supra), per Dixon J., at p. 109.

41Allen v. Roughley (supra), per Williams J., at p. 118.

42Cheshire, Modern Law of Real Property (8th ed.), p. 30.

43Wade and Megarry, The Law of Real Property (2nd ed.), p. 958.