CONCEPTS OF LAW: OWNERSHIP
The idea of ownership developed by slow degrees with the growth of civilization. So long as the people were wandering from place to place and had no settled place of residence, they had no sense of ownership. The idea began to grow when they started planting trees, cultivating land, building their homes. The transition from a pastoral to an agricultrual economy helped the development of the idea of ownership. Ownership rests largely on prohibitions exercised towards others in respect of the thing. An owner has the right to use the thing either generally or for a specific purpose, either for an indefinite period or for a limited time. The right of the owner imposes duties on others. In this sense it is a personal right produced by the regulation of inter-personal relations. If the legal system does not recognise the duties of others not to interfere with the rights of the owner then it cannot be said that a person has the right of ownership.
Ownership denotes the relation between a person and an objective forming the subject matter of his/her ownership. The normal case of ownership can be expected to exhibit the incidents as follows:
the owner will have a right to possess the thing which s/he owns.
the owner normally has the right to use and enjoy the thing owned.
the owner has the right to consume, destroy or alienate the thing.
ownership has the characteristics of being indeterminate in duration.
ownership has a residuary character.
Various Concepts of Ownership are:-
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[4].
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‘.
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 modernwriters, who have variously described ownership as the ‗residuary‘, the ‗ultimate‘, or ‗the most enduring interest‘.
Types of Ownership:-
Corporeal Ownership :-Corporeal Ownership signifies ownership in a physical object.Corporeal things are things which can be perceived by senses.
Incorporeal Ownership Sole Ownership :-When an individual owns, it is sole ownership
Co-Ownership :-When there is more than one person who owns the property
Trust Ownership
Beneficial Ownership
Legal Ownership
Equitable Ownership
Vested Ownership
Contingent Ownership
Absolute Ownership
Limited Ownership
Indian concept of ownership The scope of the right of swamitva (ownership) of property as comprising of title to the property with bhukti or bhoga (possession) or if not in possession the right to be in or to get possession of the property, as also right for possession with title but with limited rights, or even without any right, are covered by specific persons in the smritis. According to jurists, ownership is possession coupled with a legitimate title. In Bram Puran seven modes of acquisition of title are given. There it has been also said that the property obtained at partition or by inheritance or by royal grant is recognized as someone’s real property. Therefore there is no dispute about the ownership in this case. It was said that acquisition of property by illegitimate means did not confer right of ownership. In ancient time there were two types of ownership, depending upon the power to sale. These are,
- a) absolute ownership,
- b) limited ownership.
In case of absolute ownership they had right to sale the property because the person has acquired absolute title over it. But in case of limited ownership, the person on possession of the property did not have absolute right to sale or dispose of the property, e.g. mortgage. In ancient Indian concept the property was considered to be of two kind, Jangama (movable) and sthavara (immovable). In the laws relating to the purchase and sale both are considered to be Panya (saleable property).
Concepts of Law: possession
Possession is defined as ―it is continuing exercise of a claim to the exclusive use of it.‖ It does not cover incorporeal possession. Possession is different from ownership but normally possession and ownership lie together. How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general mode of acquisition of possession. Possession is of two kinds, i.e., possession in fact or de facto and possession in law or de jure. Some discordance in law and fact occurs. Law something presumes which may not actually exist. Normally possession in law and possession in fact exist in a person but it may vary. Possession in fact or de facto: It means the possession, which physically exists in term of control over it. It can be seen landlord and tenant where tenant holds possession of house physically or de facto, but it is not possession in law or de jure. Possession in law or de jure: It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is also called constructive possession. A servant may possess car, but in the eyes of law, it is possession of master. Possession of bailor through bailee is de jure possession on the part of bailor.
Concepts of Law: Personality
Personality is the the characteristic pattern of thinking, feeling and acting. By characteristic pattern we mean the consistent and distinctive ways our ideas, feelings and actions are organized. When we talk about personality we usually refer to the totality or whole of the person. Thus, the enduring pattern expressed by the person in various situations is the hall mark of personality.
Legal personality is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations. In international law, consequently, legal personality is a prerequisite for an international organization to be able to sign international treaties in its own name.
Personality is ―an individual‘s unique constellation of consistent behavioral traits‖. A personality trait is ―a durable disposition to behave in a particular way in a variety of situations‖. Common personality traits include:
honest
moody
Impulsive
friendly
Kinds of persons in law Natural persons :-All the human beings are natural persons. The entire male and female are persons. All the living beings which are recognized as person by state, they are persons in law and persons in fact. Legal persons:-Legal persons are created artificially and law regards them as legal person. They are persons only in the eyes of law. They are also created by legal fiction so called as fictitious also. They are also called juridical, conventional, imaginary, and they have rights and obligations as natural person. They can sue and be sued.
Concepts of Law: Liability
Liability is a comprehensive legal term that describes the condition of being actually or potentially subject to a legal obligation. A liable person is a natural person legally or de facto entrusted with certain duties within a legal entity, as well as a person authorised, that is, a person who may reasonably be considered as authorised to act on behalf of a legal entity.
Liability or responsibility is the word or tie that comes into existence as a result of the wrongful act of an individual. This is called Vinculum juris by which a man who is under it, must do certain things. A man’s liability consists in these things which he must suffer. It is the ultimatum of the law. It has its sources in the Supreme will of the State. According to Salmond, liability or responsibility is the bond of necessity that exists between the wrong doer, and the remedy. “He who commits a wrong is said to be liable or responsible for it”.
Joint liability is an obligation for which more than one person is responsible. Joint and several liability refers to the status of those who are responsible together as one unit as well as individually for their conduct. The person who has been harmed can institute a lawsuit and recover from any or all of the wrongdoers—but cannot receive double compensation, for instance, the full amount of recovery from each of two wrongdoers. Primary liability is an obligation for which a person is directly responsible; it is distinguished from secondary liability which is the responsibility of another if the party directly responsible fails or refuses to satisfy his or her obligation. Civil Liability: Liability in civil proceedings with a purpose of enforcement of rights vested in plaintiff. Criminal Liability: Liability in criminal proceedings with a purpose to punish the wrongdoer. Penal Liability: Aims at punishing the wrongdoer Remedial Liability: Aims at enforcement of rights and punishment is unknown to it.
Concepts of Law: Rights and Duties.
Rights are concerned with ‘interests’. Rights are defined as interests protected by moral or legal rules. But yet rights are different from interests. Interests are things which are to a man’s advantage. Eg. He has interest in his freedom or his reputation. If we say that a person has an interest in his reputation, what we mean is, that he stands to advantage of good name in the society, But, if we say that the person has a right to his reputation what we mean is, that others should not take this from him.
Every legal right has the following basic characteristics: – 1. It is vested in a person, that person may be called the owner of it, or the subject of it. 2. It avails against a person. It is on that other person that a corresponding duty is imposed. That person may be called the person bound, or as the person of incidence. 3. Right obliges the person bound, to an act or omission in favour of the person entitled. 4. The act or omission relates to a thing. It is called as the object or subject matter of the right. 5. Every legal right has a title. This means certain facts or events by reason of which the right has become vested in the owner Kinds of Legal Rights: Perfect rights: -A perfect right is one which corresponds to a perfect duty (The duty is recoginsed by law and is enforceable) Eg. Breach of contract. The right is protected and can be enforced by suing for compensation or for specific performance. Imperfect Right:-Imperfect right is one which is recoginsed by law but is not enforceable. E.g. Time barred debts. Such a right to recover exists but not through the courts. Duties: A duty is an act which one ought to do. Not doing of, amounts to a ‘wrong’. A duty may be moral or legal. It is a legal duty not to steal. If a person is curious, about his neighbours, there is no legal duty not to be so curious, this is a moral duty and therefore cannot be enforced through the courts.