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Ownership

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The concept of Ownership as in Jurisprudence emerged from the ancient Roman Law. The Right to Ownership is considered the most important of all the laws related to Rights. Roman Law has two terms related to Ownership and Possession - dominium and possessio.

  • dominium denotes absolute right to a thing
  • possessio implies only physical control over a thing.

Romans attached more importance to dominium over possessio because in their view because having absolute right over a thing was much more important than merely having physical control over it.

The English Law, in 1583, make the first attempt to distinguish between Ownership and Possession. The English Law reached the concept of ownership as an absolute right though the developments in the law of possession (Read: Hibbert: Jurisprudence)

  • Ownership is divided into perfect and imperfect. Ownership is perfect when it is perpetual, and when the thing is unincumbered with any real right towards any other person than the owner. On the contrary, ownership is imperfect when it is to terminate at a certain time or on a condition, or if the thing which is the object of it, being an immovable, is charged with any real right towards a third person; as a usufruct, use, or servitude.

Definition of Ownership

Hibbert

Hibbert defined Ownership as a right to have four things:

  1. Right to use a thing
  2. Right to exclude others from using the thing
  3. Disposing off the thing
  4. Right to destroy it

Austin

Austin defined Ownership as a right which avails against anyone who is subject to the law conferring the right to put things to user of indefinite nature.

There are three attributes of ownership

  1. Indefinite user
  2. Unrestricted disposition
  3. Unlimited duration

Salmond

Salmond said: Ownership in its most comprehensive significance, denotes the relation between a person and right that is vested in him.

  • An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it.
  • He has normally the right to use and enjoy the thing owned
  • The owner has a right to consumer, destroy or alienate the thing
  • Ownership has the characteristic of being indeterminate in duration
  • Ownership has a residuary character

Other definitions

  • Holland
  • Keeton
  • Buckland
  • Pollock
  • Hohfeld
  • Paton

Characteristics of Ownership

  • May be absolute or restricted
  • Can be restricted in times of emergency
  • Owner not allowed to use his land or property in such a way that is injurious to others
  • Restrictions may be imposed by law on the onwer's right of disposal of the thing owned
  • Owner has the right to possession of the thing he owns
  • Law does not confer ownership on an unborn child or an insane person because they are incapable of conceiving the nature and consequences of their acts
  • Ownership is residuary in character
  • Right to ownership does not end with the death of the owner but instead it is transferred to heirs

Different Kinds of Ownership

  • Corporeal and Incorporeal Ownership
  • Sole Ownership and Co-ownership
  • Trust Ownership and Beneficial Ownership
    • Trust and Contractual Relationship
    • Trust and Agency
  • Legal and Equitable Ownership
  • Vested and Contingent Ownership

Other topics

  • Subject-matter of ownership
  • Acquisition of Ownership
    • By operation of law
    • By reason of some act or event
  • Condition precedent and condition subsequent
  • Significance of ownership in modern social context
  • Ownership under various country-specific laws
  • Distinction between Ownership and Possession

Related Cases / Recent Cases / Case Laws

  • Somerset v Stewart (1772): An English Court ruled that slave owners could not use the right to property to enforce their ownership and that slaves could use judicial procedures such as Habeas Corpus to prevent owners from holding them against their will.
  • Including right to transmit it to others. Trustees of phillips exeter academy v. exeter, 92 n.h. 473, 33 a.2d 665, 673.
  • The complete dominion, title, or proprietary right in a thing or claim. the entirety of the powers of use and disposal allowed by law.
  • The right of one or more persons to possess and use a thing to the exclusion of others. Civ. Code Cal. § 654.
  • The right by which a thing belongs to some one in particular, to the exclusion of all other persons. Civ. Code La. art. 488.
  • The exclusive right of possession, enjoyment, and disposal; Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891
  • Involving as an essential attribute the right to control, handle, and dispose; Hardinge v. Empire Zinc Co., 17 Ariz. 75, 148 P. 306, 310.
  • When an immovable is subject to a usufruct, the owner of it is said to possess the naked ownership. Civ.Code La. art. 490; Maestri v. Board of Assessors, 110 La. 517, 34 So. 658.
  • In criminal law. In connection with burglary, "ownership" means any possession which is rightful as against the burglar. Seaba v. State, 33 Okl. Cr. 59, 242 P. 779, 780; State v. Bige, 195 Iowa, 1342, 193 N.W. 17, 21.
  • It is synonymous with occupancy. State v. Harrison, Mo.Sup., 285 S.W. 83, 87; Carneal v. State, 86 Tex.Cr.R. 274, 216 S.W. 626.
  • When considered as an element of larceny, "ownership" means the same as "possession." People v. Edwards, 72 Cal.App. 102, 236 P. 944, 950.

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