Lecture 1: Introduction to
Property
Assoc Prof Cameron Stewart
The Blind Men and the Elephant
• John Godfrey Saxe
What is property? Real & Personal
• Real Property – realty, interests in land – land
is three dimensional space located by
reference to a point on the earth’s surface –
fixtures – in the past only land was
recoverable
• Real Property is also split into two categories –
corporeal and incorporeal hereditaments (a
right capable of being devised to an heir)
What is property? Real & Personal
• Personal Property – catchall
• (a) Chattels real – leasehold and other
interests in land that are less than freehold –
distinction drawn because of an institutional
definition of rights – only freeholds were
enforceable by real actions for recovery
• (b) Chose in possession – a movable corporeal
thing – eg goods
What is property? Real & Personal
• Sale of Goods Act 1923 s 3(1) "chattels personal
other than money and things in action and also
includes emblements and things attached to and
forming part of the land which are agreed to be
severed before sale or under the contract for
sale"
• Bankruptcy Act 1966 s 5(1) – ships aircraft and
other vehicles; animals including fish; minerals,
trees and crops, whether on or attached to the
land or not and gas and electricity
What is property?
(c) Chose in action – a movable incorporeal
thing - rights which are enforceable by action
– eg shares, patents copyrights, equitable
securities, contractual rights, promissory
notes, cheques, mere equities
Test:
(i) Enforceability
(ii) Incorporeal and intangible
(iii) Bare right – not occupation and enjoyment
Interest defined
• The conventional term for the bundle of rights
which a person has in an object.
• Eg interests in land (covenants, easements,
caveats, contract for sale) v ownership of land
Ownership defined
Knapp v Knapp [1944] SASR 257 at 261 per
Mayo J:
"The general right of ownership embraces
subsidiary rights such as exclusive enjoyment,
to destroy, to alienate or to alter, and, of
course, the right to maintain, and to resume
and recover possession from other persons"
Ownership defined
Ownership indicates the relationship between a
person and a corporeal or incorporeal legal
object. It confers a bundle of rights to enjoy, use
possess, dispose of and alienate a "thing" as well
as the capacity to ward of any encroachment on
the thing. Ownership can be limited by other
rights but is not dependent on other rights.
• Ownership is therefore the subsidiary right that is
left when all other interests in the property have
been taken away (Campbells Hardware & Timber
Pty Limited v CSD (Qld) (1996) 96 ATC 4348)
Title defined
• Title is the measure of the strength of an
interest. It provides a yardstick to measure the
strength of competing claims of interests in
property
Possession defined
• No complete, logical and exhaustive definition of
"possession" has ever been given for the
common law – United States of America &
Republic of France v Dollfus Mieg et Cie SA &
Bank of England [1952] AC 582 at 605
• "Possession connotes a relationship between a
person and some material object. It is a relation
subsisting in fact. The ‘right’ of the possessor to
the chattel arises out of the factual situation" –
Button v Cooper [1947] SASR 286 at 292
Possession defined
• Two elements are necessary – (1) control
(corpus possessonis) – some exercise of power
over the goods or land
• (2) intention (animus possidendi) – an attitude
in the mind of the actor denying the rights of
other to have access to the land or goods
Possesory Title
• Possession confers a possessory title –
possession is a root of title – possession is not
only evidence of title but is a form of title
itself – hence you have a claim against the
whole world barring the true owner – title is
relative
What are the characteristics of "property"?
• Possession
• Physical control - corporeality - what about all
the incorporeal forms of rights which are also
property?
• Exclusion
• The right to stop others from enjoyment of
the thing
• Backburn J in Milirrpum v Nabalco
What are the characteristics of "property"?
• Enjoyment and use
• Property rights are also use rights - but there may
also be rights to enjoy which are not "property" rights to use public space - do you have a right to
enter a national park - generally yes, but you do not
"own" that right
• Some rights of enjoyment can be transferred into
property - fishing and hunting rights can fructify into
property (eg when the animals and fish are killed or
captured they become property)
What are the characteristics of "property"?
• Other enjoyments rights might have some
proprietary characteristics - eg a business
telephone number:
• Rahne v Telstra Corporation (unreported,
Young J, 8 June 1995)
What are the characteristics of "property"?
• Definable and Identifiable
• You have to be able to recognise it for you to
enjoy the rights of protection and use
• But property on the fringe is becoming vague colors (Eagle Boys pizza), sounds (Harley
Davidson)
• The Colour Purple - Cadbury Schweppes Pty
Ltd v Darrell Lea Chocolate Shops Pty Ltd (No
4) [2006] FCA 446 and subsequent litigation
What are the characteristics of "property"?
• Durable
• Does property have to last? In general it would
be hard to say that something which
disappeared or was destroyed after a short
time could be owned or enjoyed as property but durability is a poor indicator of property
given the explosion in the number and types
of choses in action - these have no physicality
and hence don't exist in the real world at all
What are the characteristics of "property"?
• Transferable/assignable;
• Alienation - If a thing can be sold then it is
most likely to be considered as property
• Is it merely personal to the right holder or can
the right holder trnafer the right to another?
King v David Allen & Sons
• Gordon Laidler and Associates Pty Ltd v
Hocking - Young J 6 march 1995 – fishing
licence
What are the characteristics of "property"?
• Dominion – right against the world (in rem)
• Blackstone - what restrictions exist for
property owners today?
What are the characteristics of "property"?
• Public interest – benefits v detriments of
recognizing property rights
• There will be some property interests that will
not be recognised because of the public
interest
• Some historical examples:
• The quasi proprietary nature of familial
services
Property theory
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John Locke
Bentham
Karl Marx
Hohfeld
Rawls
Nozick
CB MacPherson
Examples of things falling out of “property”
• Slavery - the common law was uncomfortable
with the slave as property because of the
traditions of habeus corpus - but it had no
problem with recognising slavery in the colonies Sommerset's case 1772 – 1807 manumission
Examples of things falling into “property”
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Native title?
Milirrpum
Mabo
Yanner v Eaton
Human tissue – falling into property?
• Modern example - human organs, tissue and corpses
• Background
• Burial rights, the definition of death and the invention and
perfection of transplantation
• Blackstone wrote (15th ed, 1809, Book II, Ch. 28, pp 428-9) that:
• "…though the heir has a property in the monuments and
escutcheons of his ancestors, yet he has none in their bodies or
ashes; nor can he bring any civil action against such as indecently at
least, if not impiously, violate and disturb their remains, when dead
and buried. [But] if any one in taking up a dead body steals the
shroud or other apparel, it will be felony; for the property thereof
remains in the executor, or whoever was at the charge of the
funeral."
• Resurrectionists, Burke and Hare
Scenario 1
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Car accident
You are thrown from the vehicle
Your right arm is severed
You stem the bleeding
A man walks past picks up the blood and walks
off
• Can you get the arm back?
Scenario 2
• You are dying of lung disease
• You are a racist
• Your other organs are fine and you wish to
donate your kidneys :
– one to your daughter who has polycystic kidney
disease; and
– the other to “any white child”
Scenario 3
• You and your partner had a young child of 12 weeks
who died from a rare disorder
• After a postmortem examination the body is
returned to you and you bury your child
• 5 years later you go to an exhibition of anatomy
specimens and you see a child’s heart and lungs on
display with your child’s disease. Later inquiries
confirm that it is your child’s organs.
• What can you do?
Res nullius
• Human tissue cannot be the subject of property
Professor Loane Skene (2002; 2007) is a leading advocate of why
property rights should not be recognised in human tissue. She
states that following public policy issues justify the law’s failure to
recognise property rights (2004: 166):
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emotional (a repugnance at people selling their bodies and body
parts);
familial (stored genetic material should be available to blood
relatives for their own testing, not subject to veto by one person);
pragmatic (the possible consequences of such a principle for
hospitals and laboratories);
economic (undue fettering of teaching, research and
commercialisation of biological inventions); and
social (maintenance of museum collections and educational
institutions)
Res nullius and the labour theory
• Doodeward v Spence (1908) 6 CLR 406
• Dobson v North Tyneside Health Authority [1997]
1 WLR 596
• R v Kelly [1999] QB 621
• Moore v Regents of University of California 793 P
2d 479 (Cal 1990)
• Greenberg v Miami Children’s Hospital 264 F Supp
2d 1064 (2003)
• Washington University v Catalona 437 F Supp 2d
985 (2006)
Organ Donation by Living Adults
Non-regenerative tissue
Non-regenerative tissue may be donated for transplantation into the body of another
person. There must be a delay of at least 24 hours after the consent to the
donation has been made before the tissue may be removed. In South Australia the
consent must not be given in the presence of the donor’s family. . In Western
Australia the consent must not be given in the presence of the adult’s family and
friends.
Certification
A medical practitioner may certify that:
consent was given in the presence of the medical practitioner (in Queensland, the
designated officer);
the nature and effect of the removal of the tissue had been explained;
the adult was of sound mind and the consent was given freely.
In all jurisdictions, except South Australia and Western Australia, the time of the
consent must be included in the written consent (in New South Wales the day and
time must also be included). When the written consent has been gained and the
certificate signed, the tissue may be removed for the approved purpose.
Organ Donation after death
Subject to the certain conditions below, a designated officer
may authorise removal of tissue from the body of a
deceased person where the body is at a hospital and the
purpose is for transplantation to a living person or other
therapeutic, medical or scientific purposes.
Deceased’s views known
Where the designated officer has made reasonable inquires to
determine whether the deceased had expressed a wish or
had consented to removal of tissue after death and (except
in Victoria) it had not been withdrawn or revoked, the
removal may be authorised (in writing) in accordance with
the wish or consent.
Organ Donation after death
Deceased’s views not known
Where there has been no explicit expression of consent by the deceased and the
deceased had not objected during their lifetime, and the senior available next-ofkin does not object (in New South Wales, Queensland, Tasmania and Victoria
actually consents), the designated officer may authorise the removal of tissue.
In the ACT, Northern Territory, South Australia and Victoria, if the senior available
next-of-kin cannot be contacted the designated officer may authorise the removal
of tissue: Transplantation and Anatomy Act 1978 (ACT), s 27(3); Human Tissue
Transplant Act 1979 (NT), s 18(3); Transplantation and Anatomy Act 1983 (SA), s
21(3); Human Tissue Act 1982 (Vic), s 26(1). . ‘Senior available next-of-kin’ means
(in the following order of priority):
in relation to a child –
a parent of the child;
a brother or sister who has attained the age of 18 years; or
a guardian of the child
in relation to any other deceased person –
the spouse of the deceased (some jurisdictions will recognise a same-sex relationship in this category);
a son or daughter who has attained the age of 18 years;
a parent of the deceased person; or
a brother or sister of the deceased person who has attained the age of 18 years.
Organ retention scandals
• Alder Hey Hospital
• AB v Leeds Teaching Hospital NHS Trust
[2004] EWHC 644
• McStay v. Minister for Health and
Children [2006] IEHC 238
• Stevens v Yorkhill NHS Trust [2006]
ScotCS CSOH 143
Posthumous property problems
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organ retention scandals in Australia
wrongs regarding the corpse
control of the dead
research on the dead – dummies or stiffs?
posthumous conception
allografting and personality – the ‘Return to
Eden’ Dilemma or John Woo strikes back with a
‘Face Off’?
Sperm bandits
Boris Becker and
wrongful use of
sperm?
Conversion?
Breach of Confidence?
Reproductive material and control
• Stolen sperm?
• BM v DA (2007) 39 Fam LR 168. The couple had been in a relationship that
had broken down. After their breakup the woman told the man that she
was pregnant and that she needed both a blood and semen sample for
testing the baby for genetic abnormalities. A child was later born
prematurely but at a much later date than would have been possible if she
had been pregnant during the relevant time. The man alleged that the
woman was not pregnant and had deceived him into providing sperm with
which she later impregnated herself. It was later confirmed that the man
was the genetic father of the child. The woman sought child maintenance
orders from the man but the man argued that, as the child had been
artificially inseminated, he was not the legal father. Henderson FM found
for the man. As the parties were not married or in a de facto relationship
no presumption arose that the man was the parent. Given the child was
conceived through artificial insemination, the relevant state law applied,
to the effect that, as a sperm donor, he was not the legal father of the
child.
Disputes over embryoes
• Evans v Amicus Healthcare Ltd [2004] 3 All ER
1025
• Caufield v Wong 2005 ABQB 290
Conditional Donation of Sperm
• Assisted Reproductive Technology Act 2007 (NSW) s17
• (1) A gamete provider may give an ART provider that
obtains, or proposes to obtain, a gamete from the
gamete provider a written notice setting out the
gamete provider’s wishes in relation to the gamete (the
gamete provider’s consent).
• (2) A gamete provider’s consent may address such
matters as the uses that may be made of the gamete
(or an embryo created using the gamete) and whether
the gamete or embryo may be stored, exported from
this State or supplied to another ART provider.
Racist gifts and public policy
Kay v SESAHS
• I give the Children’s hospital at Randwick $10,000 for the
treatment of White babies
• Racial Discrimination Act s 8(2)
This Part does not apply to:
(a) any provision of a deed, will or other instrument,
whether made before or after the commencement of
this Part, that confers charitable benefits, or enables
charitable benefits to be conferred, on persons of a
particular race, colour or national or ethnic origin; or
(b) any act done in order to comply with such a
provision
Breakthrough?
• Jonathan Yearworth & Ors v North Bristol NHS
Trust [2009] EWCA Civ 37 (04 February 2009)
• Negligent storage – bailment?
Breakthrough?
• We conclude:
• (a) In this jurisdiction developments in medical science now require
a re-analysis of the common law's treatment of and approach to
the issue of ownership of parts or products of a living human body,
whether for present purposes (viz. an action in negligence) or
otherwise.
• (b) The present claims relate to products of a living human body
intended for use by the persons whose bodies have generated
them. In these appeals we are not invited to consider whether
there is any significant difference between such claims and those in
which the products are intended for use by other persons, for
example donated products in respect of which claims might be
brought by the donors or even perhaps by any donees permissibly
specified by the donors.
Breakthrough?
(c) For us the easiest course would be to uphold the claims
of the men to have had ownership of the sperm for present
purposes by reference to the principle first identified in
Doodeward. We would have no difficulty in concluding that
the unit's storage of the sperm in liquid nitrogen at minus
196°C was an application to the sperm of work and skill
which conferred on it a substantially different attribute,
namely the arrest of its swift perishability. We would regard
Kelly as entirely consistent with such an analysis and
Dobson as a claim which failed for a different reason,
namely that the pathologist never undertook to the
claimants, and was not otherwise obliged, to continue to
preserve the brain.
Breakthrough?
(d) However, as foreshadowed by Rose LJ in Kelly, we are not
content to see the common law in this area founded upon the
principle in Doodeward, which was devised as an exception to a
principle, itself of exceptional character, relating to the ownership
of a human corpse. Such ancestry does not commend it as a solid
foundation. Moreover a distinction between the capacity to own
body parts or products which have, and which have not, been
subject to the exercise of work or skill is not entirely logical. Why,
for example, should the surgeon presented with a part of the body,
for example, a finger which has been amputated in a factory
accident, with a view to re-attaching it to the injured hand, but who
carelessly damages it before starting the necessary medical
procedures, be able to escape liability on the footing that the body
part had not been subject to the exercise of work or skill which had
changed its attributes?
Back to the scenarios
• With property rights you can get the arm
back, without them you can’t
• With property rights the directed donation is
legal as is the racist condition, without
property rights the kidneys cannot be taken
• With property rights you can sue for the
return of the preserved organs and the
emotional damages, without them you have
no claim