The Concept of Property
The Concept of Property Some points brought up include: Introduction •
The approach to property law in capitalist societies was to give extensive protection to private property because it was an essential incentive of wealth creation
•
Property, like most other fields of law, can’t be fully explained in doctrinal terms; the social and political context must be taken into account
What is Property? •
•
Property can be best described as a relation between persons in relation to things (Felix Cohen) o
Wesley Hohfield suggests a tension between two definitions of property – one focussed on a physical object to which legal rights and privileges are attached and the other to legal interests in that object
o
Kevin and Susan Francis Gray – “It is infinitely more accurate, therefore, to say that one has property in a thing than to declare that the thing is one’s property”
Kevin and Susan Francis Gray (The idea of Property Law) focus on the gradations of property that one may have in a resource as the central idea in land law.
•
They suggest three predominant models of property: empirical facts, artificially defined rights or “duty laden” allocations of social utility and that the concept of property oscillates between considering property as fact, right or responsibility
In Millirpum v Nabalco Blackburn J suggested that property implies: o
o
The right to enjoy or use
But this does not necessarily imply full/exclusive ownership (Yanner v Eaton [1999])
The dominion of the owner over property does not remain fixed but varies with different types of property (Wily v St George Partnership Banking [1999])
The right to alienate
o
There are many examples of non-alienable property (R v Toohey; Ex parte Meneling Station Pty Ltd [1982]) including those expressly decided so b statute or even the right of a beneficiary through a will for permanent residence (Re Potter [1970])
The right to exclude
In general property does entail this right – one that can be exercised against others
Jointly enjoyed rights (e.g. to fish/navigate) are not proprietary but rather public rights
In Stow v Mineral Holdings (Australia) Pty Ltd Aickin J distinguished between the right of any citizen (e.g. the Warden of a National Park) to the right of someone actually holding an estate or interest in land (wich could include legal interests such as a leasehold estate or incorporeal interests like easements and profits
Questions 1.13 •
The right to walk through a national park is a public, rather than property right, because this right is not proprietary and does not involve the holding of an actual interest in the land (Stow v Mineral Holdings)
•
Yes, I do agree (mainly because it logically follows from the idea of ownership) – in the case of a right to fish and navigate they are not property rights because it has no hallmark of property aside from the right to enjoy or use.
•
No, the landlord does not – but the concept need not be transferred. The giving of a lease can be seen as transferring part of a property right to another for a certain period of time
•
It is not necessarily true to follow the line of reasoning that someone who may exclude has a property right. Blackburn J’s indicia in Millirpum are not exhaustive and neither of the three are necessary or sufficient conditions for something to be property. A government servant, for example, who may exclude others from using a park, does not necessarily have an interest in that park.
Property Rights and Contractual Rights •
Property rights are rights over things, against other persons; contractual rights are rights against particular persons – but property rights may arise from a contract (e.g. specific performance)
•
In general, contracts in relation to land attract the remedy of specific performance
•
But there are distinctions where a right granted by the owner is insufficiently substantial to confer on the non-owner and definable interest in the item (e.g. licenses don’t give rise to proprietary interests)
Licenses: bare, contractual, coupled with an interest •
Licenses arise where permission is given by one to another to do an act which would otherwise be a trespass
•
There are three broad kinds of licenses: o
Bare license – no association with a contractual relation and may be revoked at the will of the licensor for any reason whatsoever (Wood v Leadbitter) and upon doing so the licensee must leave within reasonable time
o
Contractual license – arises from a contract and subject to ordinary principles of contract. If revoked, breach usually sounds in the value of the ticket but may be increased if pleasure or enjoyment is an implied promise in the contract (Jarvis v Swan Tours)
o
Proprietary License – a licence is coupled with the grant of a proprietary interest – cannot be revoked
King v David Allen & Sons, Billposting Ltd (1916) 2 AC 54 Facts: The appellant held the fee simple in premises and made an agreement with the respondents to give them permission to advertise on a wall of a theatre erected on the premises. Before the license expired the appellant agreed with a company about to be formed to assign a 40 year lease with the interest in the agreement between the appellant and respondent ratified b the new company. The agreement was never incorporated into the lease and upon attempting to post their bills on the wall the respondents were forcibly removed. The respondents commenced action against the appellants who tried to bring the company in as a third party but were refused. Lord Buckmaster LC: •
The contract between K and D creates nothing more than a personal obligation – the sole right of the respondent is to fix bills against a flank wall and this does not arise from a relationship of landlord/tenant, grantor/grantee of an easement.
•
But whatever rights have been created have undoubtedly been taken away by the actions of Mr King in enabling the prevention of the respondents from exercising their rights and he is accordingly liable in damages
Earl Loreburn: •
If the agreement was an incorporeal heriditament (easement) or a sufficient interest in land then the contract would not have been broken by the lease and he wouldn’t be responsible for any trespasses committed by the respondents – but the document amounts to no more than a promise to use the wall for advertising purposes and an implied undertaking to not disable himself from carrying out the contract
•
By altering his legal position in respect of the land he has disabled himself from giving effect to the agreement – this is sufficient to establish a case for damages
•
From this judgement it follows that the parties did not create a proprietary interest in the building and hence a license does not confer such an interest
•
Furthermore it is clear that even if a license can attract certain remedies – it is not enforceable against third parties
•
In Claude Neon Ltd v Melbourne and Metropolitan Board of Works the HCA held that the parties intended to create a lease over roofs, parapets and exterior walls by a grant that conferred exclusive possession of those parts
Questions 1.27 •
Even though he acted perfectly honestly, he was liable because he had changed his legal position (though inadvertently) such that he was unable to carry out his promise
•
An action by King against the company could also be maintained under the principles of contract or estoppel, provided the circumstances permit
•
The bill posting company could not proceed against the theatre company because they were not privy to the contract existing between King and the bill-posting company
•
The bill-posting company retained only the personal-right to advertise on their premises; no proprietary right was transferred
•
Yes, the company acquired proprietary interest and they could enforce their rights against all other persons – as could a tenant to the extent of his agreement with the landlord
•
The House of Lords regards the bill-posting company as having only a license because the agreement did not confer any interest in land – merely the right to advertise
•
A tenant under a lease will have proprietary rights (right to exclude, alienate etc.), unlike a licensee
•
The policy reasons could include the fact that it would debilitate the owner’s capacity to do business by imposing too great a burden. Furthermore a license does not fit within the timetested definition of property.
•
Licensees should not be protected as lessees because they have a limited interest in the property
•
Quoting from Kevin Gray and Susan Francis the text acknowlages that interests are not proprietary only because they are enforceable against third parties – this is circular reasoning that says proprietary rights which are assignable and enforceable against third parties – and these rights are those traditionally identified as proprietary – the High Court acknowledged this in Yanner v Eaton (1999) ALR 258
•
A better approach – Blackstone’s conception of property rights as a distinctive measure of ‘despotic domination which one man claims over the external things of the world, in total exclusion of the right of any other individual in the universe” – according to this licenses don’t confer proprietary rights because they are given insufficient domination of the land – there is “too little legally endorsed concentration of power” (Gray)
Georgeski v Owners Corporation Strata Plan 49833 (2004) 62 NSWLR 534 Facts: The plaintiff had a license from the Crown over a portion of the Riverbank of the Georges River. By its terms she build a jetty and slipway on it. The defendants held an easement of way along the western edge of the plaintiff’s land down to the river bank – she sought an order prohibiting the defendant’s trespass on them.
Barett J: •
The plaintiff’s right of occupation is in contract only and she has no leasehold or right of possession.
•
The declarations sought are predicated on the existence of a legal right of the plaintiff inconsistent with entitlement of others to use the jetty otherwise for this purpose
Reviewing the Authorities •
In WA v Ward McHugh J said that a licensee, if ejected by a stranger, may have an action in trespass or tort – but the action of ejectment is not available to him – since trespass entails interference with possession and thus is maintainable only by someone with this right
•
Between a licensor and licensee where there is no possession – only the licensor can sue for trespass, subject to the qualification that were the license is coupled with the grant of an interest (e.g. profit a prendre) in which case one may sue for trespass for interference with the subject matter of the grant
•
Barett J considers the authority of Manchester plc v Dutton (ECA) in which the dissenting judgement (Chadwick LJ) took a traditional approach to trespass o
The majority approach on the other hand held that the lack of availability of ejectment does not imply no remedy through possession is available and thus a licensee can claim possession to give effect to the rights he/she has under the contract, to exclude any occupier except with a claim to possession equal to or greater to his own.
o
This approach was criticized by Swadling who suggests that the right to prevent the licensor from denying possession bind the licensor alone and since the protestors were not privy to the contract and since there was no factual possession of the land then it could not bind the protestors
Preferring Chadwick LJ’s approach – The focus of trespass is in possession and mere physical presence or physical use does not satisfy this test The plaintiff has no legal right in respect of the land through the license – it only confers the permission to occupy. This right is only for the limited purpose of ‘Jetty and Slipway’ and this does not contemplate sustained activity that entails the physical exclusion of others Even if a profit a prendre existed this would only be relevant to injunctive relief if someone attempted to dismantle or take away the jetty – it wouldn’t be inconsistent with an invasion by a person simply entering it
Brendan Edgeworth, ‘The Numerus Clauses Principle in Australian Property Law’ •
Numerus Clausus – landowners are not at liberty to customize land rights, any new rights must fit firmly within established pigeonholes, of which the law permits only a small and finite number
•
This should be contrasted with the position in contract’s principle of free exchange which allows parties to bind themselves to any type of arrangements – as such it is highly “prescriptive” and strictly “circumscribed” unlike contracts which allows the “fullest latitude”
(Brougham LC in Keppell v Bailey) •
Unlike contract property is concerned with rights capable of binding third parties, not parties to agreements. Hence the numerous clauses principle prevents rights not neatly fitting into the categories of corporeal and incorporeal hereditaments from entering the domain of property law.
•
Edgeworth cites Bernard Rudden who asserts that virtually all modern systems, including civil law, follow the same. Applying Rudden’s observations to the Australian context he finds:
•
o
The fullest interests that confer possession for various periods of time (fee simple, life estate, lease hold)
o
The lesser interests (easements, freehold covenants and profits)
o
The security interests (mortages)
He groups the policy considerations leading to this in a threefold manner: 1. The context of property law’s emergence in 19th century England – the fragmentation of property rights into bundles was essential for the commodification of land to prevent it from being shackled indefinitely
2. To prevent adding to existing difficulties for third party purchases of land – making the process of conveyancing even more complex and time consuming and thus creating large transaction costs. Thus the principle is created to balance the largest number of property rights consistent with an efficient system of conveyancing
3. Protecting the integrity of the science of the law (Lord Brougham) by not frustrating the process of measured categorization by judges, academics and legislators and preventing shared professional knowledge from being firmly established
•
In the case of Errington v Errington (father pledges property to his son and daughter when the mortgage was repaid, father dies before this happens, mother-in-law attempts to enforce will) Lord Denning held that the contractual license existing between the couple and father could not be revoked in breach of contract.
•
This meant it was enforceable against the licensor or anyone claiming through him o
This was criticized and overruled in Australia by the Federal Court in Bropho v WA
Questions
Property rights and the rights of persons •
The idea of the right of persons is rooted in the distinction between property and personl rights “our society acknowledges a profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona” (Mosk J in Moore’s Case)
•
This distinction didn’t always exist – slavery, married women etc but due to changes in legislation this is no longer the case in most countries
•
Personal rights – the rights that a person has over his or her own body (e.g. right to safeguard the body – assault battery).
•
But the law also protects people’s personality (defamation for reputation etc.)
•
But the distinction isn’t clear; can one’s reputation, like property, be commercially exploited etc.
Margaret Davies and Ngaire Naffine, Are Persons Property? Legal Debates about Property and Personality •
The authors of this text root the discussion in the idea that the right of a person to be free and equal to others is the very raison d’etre of the law – but acknowledging that it has not disappeared from the Eastern world
•
They go on to explain that English law never countenanced slavery and that in Sommersett’s Case it was concluded that there was no “positive, or legislative, authorisation of slavery in England”
•
The writers explain that the view of the English law is ad idem with the dominant philosophy of Locke and Kant: o
“A person cannot be property and so cannot be a thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property” – Locke
o
[Freedom from being subject to the arbitrary will of another] “is so necessary to..A Man’s preservation that he cannot part with it... Nobody can give more power than he has himself”
Moore v Regents of the University of California (1990) 793 P 2d 479 Facts: M was treated at the UCLA Medical centre for Leukemia – during the course of which he had his spleen removed at the recommendation of one of the defendant’s (G) who was aware it would be valuable for commercial purpose. Some time 3 years later G established a cell line from one of his cells capable of allowing proteins to be produced indefinitely – himself and another Q decided to patent it and under commercial agreements he was to receive $450, 000 in payments. When M discovered his cells were being used he brought an action Panelli J (in the majority): •
Moore’s argument is that the defendant’s unauthorized use of his cells constitute a conversion and thus he claims a propriety interest in each of the products to be created from his cells. No court has made a decision of conversion on human cells
•
Panelli J dismisses arguments made by the appellant and follows it with other reasons damaging the claim: o
The Privacy rights analogy – while a persona is unique the defendant’s patent is to lymphokines which have the same molecular structure in all people. It is not necessary to fit the
The approach to property law in capitalist societies was to give extensive protection to private property because it was an essential incentive of wealth creation
•
Property, like most other fields of law, can’t be fully explained in doctrinal terms; the social and political context must be taken into account
What is Property? •
•
Property can be best described as a relation between persons in relation to things (Felix Cohen) o
Wesley Hohfield suggests a tension between two definitions of property – one focussed on a physical object to which legal rights and privileges are attached and the other to legal interests in that object
o
Kevin and Susan Francis Gray – “It is infinitely more accurate, therefore, to say that one has property in a thing than to declare that the thing is one’s property”
Kevin and Susan Francis Gray (The idea of Property Law) focus on the gradations of property that one may have in a resource as the central idea in land law.
•
They suggest three predominant models of property: empirical facts, artificially defined rights or “duty laden” allocations of social utility and that the concept of property oscillates between considering property as fact, right or responsibility
In Millirpum v Nabalco Blackburn J suggested that property implies: o
o
The right to enjoy or use
But this does not necessarily imply full/exclusive ownership (Yanner v Eaton [1999])
The dominion of the owner over property does not remain fixed but varies with different types of property (Wily v St George Partnership Banking [1999])
The right to alienate
o
There are many examples of non-alienable property (R v Toohey; Ex parte Meneling Station Pty Ltd [1982]) including those expressly decided so b statute or even the right of a beneficiary through a will for permanent residence (Re Potter [1970])
The right to exclude
In general property does entail this right – one that can be exercised against others
Jointly enjoyed rights (e.g. to fish/navigate) are not proprietary but rather public rights
In Stow v Mineral Holdings (Australia) Pty Ltd Aickin J distinguished between the right of any citizen (e.g. the Warden of a National Park) to the right of someone actually holding an estate or interest in land (wich could include legal interests such as a leasehold estate or incorporeal interests like easements and profits
Questions 1.13 •
The right to walk through a national park is a public, rather than property right, because this right is not proprietary and does not involve the holding of an actual interest in the land (Stow v Mineral Holdings)
•
Yes, I do agree (mainly because it logically follows from the idea of ownership) – in the case of a right to fish and navigate they are not property rights because it has no hallmark of property aside from the right to enjoy or use.
•
No, the landlord does not – but the concept need not be transferred. The giving of a lease can be seen as transferring part of a property right to another for a certain period of time
•
It is not necessarily true to follow the line of reasoning that someone who may exclude has a property right. Blackburn J’s indicia in Millirpum are not exhaustive and neither of the three are necessary or sufficient conditions for something to be property. A government servant, for example, who may exclude others from using a park, does not necessarily have an interest in that park.
Property Rights and Contractual Rights •
Property rights are rights over things, against other persons; contractual rights are rights against particular persons – but property rights may arise from a contract (e.g. specific performance)
•
In general, contracts in relation to land attract the remedy of specific performance
•
But there are distinctions where a right granted by the owner is insufficiently substantial to confer on the non-owner and definable interest in the item (e.g. licenses don’t give rise to proprietary interests)
Licenses: bare, contractual, coupled with an interest •
Licenses arise where permission is given by one to another to do an act which would otherwise be a trespass
•
There are three broad kinds of licenses: o
Bare license – no association with a contractual relation and may be revoked at the will of the licensor for any reason whatsoever (Wood v Leadbitter) and upon doing so the licensee must leave within reasonable time
o
Contractual license – arises from a contract and subject to ordinary principles of contract. If revoked, breach usually sounds in the value of the ticket but may be increased if pleasure or enjoyment is an implied promise in the contract (Jarvis v Swan Tours)
o
Proprietary License – a licence is coupled with the grant of a proprietary interest – cannot be revoked
King v David Allen & Sons, Billposting Ltd (1916) 2 AC 54 Facts: The appellant held the fee simple in premises and made an agreement with the respondents to give them permission to advertise on a wall of a theatre erected on the premises. Before the license expired the appellant agreed with a company about to be formed to assign a 40 year lease with the interest in the agreement between the appellant and respondent ratified b the new company. The agreement was never incorporated into the lease and upon attempting to post their bills on the wall the respondents were forcibly removed. The respondents commenced action against the appellants who tried to bring the company in as a third party but were refused. Lord Buckmaster LC: •
The contract between K and D creates nothing more than a personal obligation – the sole right of the respondent is to fix bills against a flank wall and this does not arise from a relationship of landlord/tenant, grantor/grantee of an easement.
•
But whatever rights have been created have undoubtedly been taken away by the actions of Mr King in enabling the prevention of the respondents from exercising their rights and he is accordingly liable in damages
Earl Loreburn: •
If the agreement was an incorporeal heriditament (easement) or a sufficient interest in land then the contract would not have been broken by the lease and he wouldn’t be responsible for any trespasses committed by the respondents – but the document amounts to no more than a promise to use the wall for advertising purposes and an implied undertaking to not disable himself from carrying out the contract
•
By altering his legal position in respect of the land he has disabled himself from giving effect to the agreement – this is sufficient to establish a case for damages
•
From this judgement it follows that the parties did not create a proprietary interest in the building and hence a license does not confer such an interest
•
Furthermore it is clear that even if a license can attract certain remedies – it is not enforceable against third parties
•
In Claude Neon Ltd v Melbourne and Metropolitan Board of Works the HCA held that the parties intended to create a lease over roofs, parapets and exterior walls by a grant that conferred exclusive possession of those parts
Questions 1.27 •
Even though he acted perfectly honestly, he was liable because he had changed his legal position (though inadvertently) such that he was unable to carry out his promise
•
An action by King against the company could also be maintained under the principles of contract or estoppel, provided the circumstances permit
•
The bill posting company could not proceed against the theatre company because they were not privy to the contract existing between King and the bill-posting company
•
The bill-posting company retained only the personal-right to advertise on their premises; no proprietary right was transferred
•
Yes, the company acquired proprietary interest and they could enforce their rights against all other persons – as could a tenant to the extent of his agreement with the landlord
•
The House of Lords regards the bill-posting company as having only a license because the agreement did not confer any interest in land – merely the right to advertise
•
A tenant under a lease will have proprietary rights (right to exclude, alienate etc.), unlike a licensee
•
The policy reasons could include the fact that it would debilitate the owner’s capacity to do business by imposing too great a burden. Furthermore a license does not fit within the timetested definition of property.
•
Licensees should not be protected as lessees because they have a limited interest in the property
•
Quoting from Kevin Gray and Susan Francis the text acknowlages that interests are not proprietary only because they are enforceable against third parties – this is circular reasoning that says proprietary rights which are assignable and enforceable against third parties – and these rights are those traditionally identified as proprietary – the High Court acknowledged this in Yanner v Eaton (1999) ALR 258
•
A better approach – Blackstone’s conception of property rights as a distinctive measure of ‘despotic domination which one man claims over the external things of the world, in total exclusion of the right of any other individual in the universe” – according to this licenses don’t confer proprietary rights because they are given insufficient domination of the land – there is “too little legally endorsed concentration of power” (Gray)
Georgeski v Owners Corporation Strata Plan 49833 (2004) 62 NSWLR 534 Facts: The plaintiff had a license from the Crown over a portion of the Riverbank of the Georges River. By its terms she build a jetty and slipway on it. The defendants held an easement of way along the western edge of the plaintiff’s land down to the river bank – she sought an order prohibiting the defendant’s trespass on them.
Barett J: •
The plaintiff’s right of occupation is in contract only and she has no leasehold or right of possession.
•
The declarations sought are predicated on the existence of a legal right of the plaintiff inconsistent with entitlement of others to use the jetty otherwise for this purpose
Reviewing the Authorities •
In WA v Ward McHugh J said that a licensee, if ejected by a stranger, may have an action in trespass or tort – but the action of ejectment is not available to him – since trespass entails interference with possession and thus is maintainable only by someone with this right
•
Between a licensor and licensee where there is no possession – only the licensor can sue for trespass, subject to the qualification that were the license is coupled with the grant of an interest (e.g. profit a prendre) in which case one may sue for trespass for interference with the subject matter of the grant
•
Barett J considers the authority of Manchester plc v Dutton (ECA) in which the dissenting judgement (Chadwick LJ) took a traditional approach to trespass o
The majority approach on the other hand held that the lack of availability of ejectment does not imply no remedy through possession is available and thus a licensee can claim possession to give effect to the rights he/she has under the contract, to exclude any occupier except with a claim to possession equal to or greater to his own.
o
This approach was criticized by Swadling who suggests that the right to prevent the licensor from denying possession bind the licensor alone and since the protestors were not privy to the contract and since there was no factual possession of the land then it could not bind the protestors
Preferring Chadwick LJ’s approach – The focus of trespass is in possession and mere physical presence or physical use does not satisfy this test The plaintiff has no legal right in respect of the land through the license – it only confers the permission to occupy. This right is only for the limited purpose of ‘Jetty and Slipway’ and this does not contemplate sustained activity that entails the physical exclusion of others Even if a profit a prendre existed this would only be relevant to injunctive relief if someone attempted to dismantle or take away the jetty – it wouldn’t be inconsistent with an invasion by a person simply entering it
Brendan Edgeworth, ‘The Numerus Clauses Principle in Australian Property Law’ •
Numerus Clausus – landowners are not at liberty to customize land rights, any new rights must fit firmly within established pigeonholes, of which the law permits only a small and finite number
•
This should be contrasted with the position in contract’s principle of free exchange which allows parties to bind themselves to any type of arrangements – as such it is highly “prescriptive” and strictly “circumscribed” unlike contracts which allows the “fullest latitude”
(Brougham LC in Keppell v Bailey) •
Unlike contract property is concerned with rights capable of binding third parties, not parties to agreements. Hence the numerous clauses principle prevents rights not neatly fitting into the categories of corporeal and incorporeal hereditaments from entering the domain of property law.
•
Edgeworth cites Bernard Rudden who asserts that virtually all modern systems, including civil law, follow the same. Applying Rudden’s observations to the Australian context he finds:
•
o
The fullest interests that confer possession for various periods of time (fee simple, life estate, lease hold)
o
The lesser interests (easements, freehold covenants and profits)
o
The security interests (mortages)
He groups the policy considerations leading to this in a threefold manner: 1. The context of property law’s emergence in 19th century England – the fragmentation of property rights into bundles was essential for the commodification of land to prevent it from being shackled indefinitely
2. To prevent adding to existing difficulties for third party purchases of land – making the process of conveyancing even more complex and time consuming and thus creating large transaction costs. Thus the principle is created to balance the largest number of property rights consistent with an efficient system of conveyancing
3. Protecting the integrity of the science of the law (Lord Brougham) by not frustrating the process of measured categorization by judges, academics and legislators and preventing shared professional knowledge from being firmly established
•
In the case of Errington v Errington (father pledges property to his son and daughter when the mortgage was repaid, father dies before this happens, mother-in-law attempts to enforce will) Lord Denning held that the contractual license existing between the couple and father could not be revoked in breach of contract.
•
This meant it was enforceable against the licensor or anyone claiming through him o
This was criticized and overruled in Australia by the Federal Court in Bropho v WA
Questions
Property rights and the rights of persons •
The idea of the right of persons is rooted in the distinction between property and personl rights “our society acknowledges a profound ethical imperative to respect the human body as the physical and temporal expression of the unique human persona” (Mosk J in Moore’s Case)
•
This distinction didn’t always exist – slavery, married women etc but due to changes in legislation this is no longer the case in most countries
•
Personal rights – the rights that a person has over his or her own body (e.g. right to safeguard the body – assault battery).
•
But the law also protects people’s personality (defamation for reputation etc.)
•
But the distinction isn’t clear; can one’s reputation, like property, be commercially exploited etc.
Margaret Davies and Ngaire Naffine, Are Persons Property? Legal Debates about Property and Personality •
The authors of this text root the discussion in the idea that the right of a person to be free and equal to others is the very raison d’etre of the law – but acknowledging that it has not disappeared from the Eastern world
•
They go on to explain that English law never countenanced slavery and that in Sommersett’s Case it was concluded that there was no “positive, or legislative, authorisation of slavery in England”
•
The writers explain that the view of the English law is ad idem with the dominant philosophy of Locke and Kant: o
“A person cannot be property and so cannot be a thing which can be owned, for it is impossible to be a person and a thing, the proprietor and the property” – Locke
o
[Freedom from being subject to the arbitrary will of another] “is so necessary to..A Man’s preservation that he cannot part with it... Nobody can give more power than he has himself”
Moore v Regents of the University of California (1990) 793 P 2d 479 Facts: M was treated at the UCLA Medical centre for Leukemia – during the course of which he had his spleen removed at the recommendation of one of the defendant’s (G) who was aware it would be valuable for commercial purpose. Some time 3 years later G established a cell line from one of his cells capable of allowing proteins to be produced indefinitely – himself and another Q decided to patent it and under commercial agreements he was to receive $450, 000 in payments. When M discovered his cells were being used he brought an action Panelli J (in the majority): •
Moore’s argument is that the defendant’s unauthorized use of his cells constitute a conversion and thus he claims a propriety interest in each of the products to be created from his cells. No court has made a decision of conversion on human cells
•
Panelli J dismisses arguments made by the appellant and follows it with other reasons damaging the claim: o
The Privacy rights analogy – while a persona is unique the defendant’s patent is to lymphokines which have the same molecular structure in all people. It is not necessary to fit the
