Legal Concepts
Legal Right
What is legal right as per the positivists?
Sovereign gives us some fundamental conceptions and distinctions
1. Legal Rights are essentially those interests which have been legally recognized and protected. These rights may also be interests which are ascertained and morally protected. These moral rights are protected by a moral duty. A legal rights stands on a different footing from a moral right. Salmond says legal right is an interest recognized and protected by rule of law. An interest violation of which would be a legal wrong. A legal duty is an act which obliges:
a. To do something and act, the opposite of which would be a legal wrong
b. Whenever law ascribes duty to a person, there is a corresponding right against whom the duty is imposed.
c. Moral Duty and Legal Duty.
d. Rights are said to be benefits secured for persons by rules regulating relationships.
e. Salmond says there can be no right without a corresponding duty. Every right or duty involves a bond of legal obligation by which two or more persons are bound together. There can therefore be no duty unless there is someone to whom it is due. There can be no right unless there is someone from whom it is claimed and there can be no wrong unless there is someone who is wronged, that is to say, whose right has been violated. Viniculum Juris.
2. Duty can be of two types
a. Relative Duty- There is a corresponding right in these duties.
b. Absolute Duty- There is no corresponding right.
c. The conceive duty to be of the essence of a right that it should be vested in some determinate person and be enforceable by some form of legal process instituted by him.
3. Legal Right- Five Characteristics of Legal Right
a. It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled or the person of inherence.
b. It avails against a person upon who lays a correlative duty. He may be distinguished as the person bound or as the subject of the duty or as the person of incidence.
c. A person bound to an act or omission in favour of the person entitled. This may be termed as the content of the right.
d. The act or omission relates to something which may be termed as the object or subject matter of the right.
e. Every legal right has a title, that is to say, certain facts or events by reason of which the right becomes vested in its owner.
4. Every right involves a threefold relation in which the owner of it stands:
a. It is a right against some person or persons.
b. It is a right to some act or omission of such person or person.
c. It is a right over to something to which the act or omission relates.
Legal rights in a wider sense- A right may not necessarily have a correlative duty. A right may be defined as an advantage or benefit conferred upon a person by a rule of law. These legal rights are known as legal concepts and these legal concepts have their correlatives.
Right- Duty Liberty- No right
Power- Liability Immunity- Disability
Roscoe Pound gives an analysis of legal concepts. These rights are essentially interests recognized and administered by law and belong to the science of law rather than to law and are a complete idea. It may mean the legally recognized and delimited human demands or some conceptions by which recognized interests are given form in order to be secured as legal order.
Hohfield’s Analysis of Legal Right-
1. Jural Opposites
a. Right- No right
b. Privilege- Duty
c. Power- Disability
d. Immunity- Liability
2. Jural Correlatives
a. Right- Duty
b. Privilege- No right
c. Power- Liability
d. Immunity- Disability
3. Vertical lines represents jural correlatives and is the presence of in another. Thus, right is the presence of duty in another and liability is the presence of power in another.
4. Diagonals connect Jural contradictions and may be read either ways as is the absence of in oneself. Thus, no right is the absence of right in oneself and disability is the absence of power in oneself.
5. Horizontal lines connect contradictories of correlatives and may be read as is the absence of in another. Thus, liberty (not) is the absence of right in another and immunity is the absence of power in another.
6. They are applicable in general law and applicable in particular transactions.
a. It is improper to speak of a right inhering in A towards B unless it can always be said that B has a duty.
b. It is improper to speak of A having a privilege vis-a-vis B unless it can be shown that B has no right to prevent its exercise.
c. It is improper to speak of A as having a power against B unless is exercise of the power involves an imposition of liability on B.
d. It is improper to speak of A as having immunity as against B unless it can be shown that B is under a disability in respect of a same subject matter that is has a no power to impose liability being the opposite of immunity.
7. Simplification
a. As a person’s right is an expression of a wish or claim, that other person against whom the right or claim is expressed has a duty to obey his right or claim.
b. A person’s freedom is an expression of a right or claim that he may do something against other person to change his legal position.
c. A person’s power is an expression of claim or a right that he can alter other person’s legal position.
d. A person’s inability is an expression of a wish that another person cannot alter the person’s legal position.
Salmond- A perfect right is one which corresponds to a perfect duty and a perfect duty is one which is not merely recognized by law but also enforced by law. In a fully developed legal system, there are rights and duties which though recognized by law are not perfect in nature. The rights and duties are important but there is no action for its maintenance. It is a good ground for defence but it is not a good ground for action. There are some cases in which imperfect right is sufficient to enforce equity.
A positive right corresponds to a corresponding duty and entitles its owners to have something done for him without the performance of which his enjoyment of the right is imperfect. Negative rights have negative duties corresponding to them and enjoyment is complete unless interference takes place. Therefore, majority of negative rights are against the entire world.
Negative rights correspond to negative duty of all others, not to interfere. In the case of positive rights, the person subject to the duty is bound to do something, whereas, in case of negative rights others are restrained to do something. Therefore, the satisfaction of a positive right results in the betterment of the position of the owner. Whereas in case of a negative right, the position of the owner is maintained as it is.
In case of positive rights, the relation between subject and object is mediate and object is attained with the help of others. Whereas in case of negative rights, the relation is immediate, there is no necessity of outside help. All that is required is that others should refrain from interfering case of negative rights. Whereas in case of positive rights, a duty is imposed on one or few individuals. In case of negative rights, the duty is imposed on a large number of persons.
Real and Personal Right
A real right corresponds to a duty imposed upon persons in general whereas a personal right corresponds to a duty imposed upon determinate individuals. Therefore, a real right is available against the whole world whereas a personal right is available against only the particular person.
Real rights are more important than personal rights as they are available against the whole world.
All real rights are negative and most personal rights are positive although in few exceptional cases, they are negative. Therefore, a real right is nothing more than a right to be left alone by others. It is merely a right to their passive non-interference. The only duties which could be expected from the whole world are of negative character. All legal rights are negative but it is not so in case of a personal right. There are some cases where they are both personal and negative.
It is to be observed that real rights are Right in Rem and personal rights are Right in Personam, real rights are generally negative rights, personal rights are generally positive rights.
Right in rem and Right in personam
Every right is at the same time one in respect of something and against some person. Every right involves not only a real but also a personal relation. Although the two exist together, but they are not same. In real right, the relation is to a thing, in personal right, it is the relation to other persons who owe the duties which is important. Real rights are derived from some special relation to the object but personal rights are derived from special relation to the individual or individuals under the duty.
A right in rem is available against the whole world but right in personam is available against a particular individual only.
Proprietary and Personal Right
It includes a person’s assets and his property in various forms. Proprietary Rights have some economic or monetary value. They are the elements of wealth for men, whereas personal rights are the elements of his well-being.
Test for determining Proprietary Right- It is not whether there can be any alienation, whether it can be equivalent to some amount of money.
Inheritable and Uninheritable Rights- A right is inheritable if it survives the owner. It is uninheritable if it dies with the owner.
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 rights in rem being good against the entire world and not merely against the specific persons.
Incidence of Ownership
1. The owner will have the right to possess the things which he owns.
2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the right to decide how it shall be used and the right of income from it. Right to possess is not a right in the strict sense because in this case rights are in fact liberties. The owner has no duty to others and he can use it in any way he likes and nobody can interfere with the enjoyment of his ownership.
3. The owner has the right to consume, destroy or alienate the things. The right to consume and destroy are straight forward liberties. The right to alienate i.e. the right to transfer the rights involves the existence of power.
4. Ownership has the characteristic of indeterminate duration. The position of the owner differs from the non-owner in possession, in that the latter’s interest is subject to be determined out of some future set point whereas the interest of the owner can be there theoretically forever.
5. Ownership has a residuary character.
Austin’s Concept of Ownership
Ownership means a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration over a determinate thing.
2 Caveats
1. Not to use your property to injure your neighbour.
2. It is not lawful to build upon your land to the injury of others.
Dias on Ownership
Ownership is needed to give effect to the idea of “mine” and “not mine or thine”. Ownership consists of claims but owner may be divested of all the claims to the extent that he is not left with any practical benefit of ownership. The way in which ownership arises differs in different legal systems.
According to Salmond, the subject matter of ownership is the relationship between the thing and the owner. This thing may be a land or a chattel. Ownership can also include interests. Ownership may consists of incorporeal things as well which cannot be perceived by senses.
Ownership
1. When the statute says that property will devolve after sometime.
2. A person may take or make a property and become the owner.
3. By natural circumstances, the person can also become the owner.
Corporeal and Incorporeal Ownership
Corporeal Ownership signifies ownership in a physical object whereas Incorporeal Ownership is a right or an interest. The distinction lies in the incorporeal or corporeal thing. Corporeal things are things which can be perceived by senses whereas incorporeal things cannot be perceived by senses and are in tangible.
Sole and Co-Ownership
Sometimes there is more than one person who owns the property. When an individual owns, its sole ownership.
Trust and Beneficial Ownership
In trust, there is no co-ownership. Two persons- one for whom the trust is created, the beneficiary and one on whom the responsibility lies for the benefit of the others, the trustee. The trustee has no right to the beneficial enjoyment of the property. His ownership is limited. Therefore, the trustee is merely an agent upon whom law has conferred the duty of administration of property.
Trust ownership and beneficial ownership are independent of each other in their destination and disposition. Trusteeship may change hands but the beneficial owners remain the same.
Legal and Equitable Ownership
Legal ownership is that ownership which has its ownership in common law but equitable ownership comes from equity divergent of common law. The distinction between legal and equitable ownership is very thin.
Vested and Contingent Ownership
Ownership is vested when the title is perfect whereas it is contingent when it is capable of being perfect after fulfilment of certain condition. Vested ownership is absolute whereas contingent ownership becomes vested when the conditions are fulfilled.
Absolute and Limited Ownership
Absolute- It designates when possession, enjoyment, disposal are complete and vested without restrictions save as restriction imposed by law.
Limited- The ownership is subjected to the limitations of use, disposal or duration.
Possession-
Paton- Possession is a concept of law, but it lacks a uniform approach. However, possession has created various legal relations. Possession is the prima facie evidence of ownership. He who has a possession must show that he has a better title over the property.
Possession is a root of title and all possession is regarded as just till it is shown to be otherwise.
Salmond- Possession is the most basic relationship between men and thins as men require basic necessities of food, clothing etc. and therefore, men has to possess them. He admits that this concept if difficult but at the same time it is not purely a legal concept. It is not independent of law. It varies from one system to another system. A person who may have a possession in fact may not have a possession in law. It may be legal and non-legal.
Possession in fact and Possession in law
Possession in fact denotes that something is in one’s control and by control he means that it may be direct or indirect control. Direct control means that one has custody of the thing whereas indirect control means that when the thing is lying somewhere and one has the power to retain or regain it, this amounts to indirect control.
There can be variety of situations where Possession in fact depends on the intention as to possessor, how he wants to possess the things.
Corpus Possessionis- This is comprised of both power to comprise things, to use possess and existence of grounds for the expectation of the possessor’s use will not be interfered with.
Animus Possessiondi- It consists of an intention to appropriate it to oneself and to the exclusive use of thing possessed.
Possession in law- It means that the possession has been given rights by law to keep the thing in possession without interference by others.
Salmond says that this is a right in rem supported by right in personam against those who violate possessor’s right and also include right to recover compensation and also it includes, right of disposition. Law will protect possession against criminal and other sanctions.
Merry v. Green- A purchases an almirah which has several drawers and sells it to B. B finds some jewels in a drawer. B wants to sell it to C. Is B guilty of theft?
B does not require legal possession until he discovers them. If he at this stage, decide to dishonestly misappropriate them, he is guilty of theft.
Mediate and Immediate Possession
Salmond writes that one person may possess a thing for on account of someone else. In such a case, the latter is in possession by the agency of him who holds the thing on his behalf. Thus, possession held by one man through another may be termed mediate. While, acquired or taken directly may be distinguished as immediate and direct.
There are three types of mediate possession
1. That acquired through an agent or servant.
2. That held through a borrower or hirer or tenant where the thing can be demanded at will.
3. Where the chattel is lent out for a fixed or delivered as security for repayment of the debt.
The possession acquired through an agent, it is through someone who solely owes on someone’s behalf an account of claim in the agent or servant.
The possession where one’s superior right is exercised for obtaining from the other the direct possession, i.e. the cases of borrower and tenant at will.
Where the immediate possession is in a person who claims it for himself, until sometime has lapsed or certain conditions have fulfilled but who acknowledges the title for another for whom he holds the thing and to whom he is prepared to hand over the possession when his own temporary claim has come to an end.
Immediate possession is a possession valid against the whole world including the mediate possessor.
According to Paton, this type of classification is not possible and not recognized by common law. But it may be true for civil law countries. It has created confusion as to what is mediate and what is immediate. This classification is too facile a differentiation.
Paton
Propositions
a. Possession of a chattel is not required when mere physical control is taken; it depends on the knowledge of the taker of the nature of the thing required.
b. A possessor of land possesses everything attached to or under the land and things lying loose on the land are not in the possession of the land owner but fall into the possession of the first finder if he is lawfully on the land.
c. The owner or possessor of the shop is not in possession of chattel on the floor of his shop until he knows of their presence there.
d. The owner of the house, who may well have been in the possession of the house for purpose of taking action against trespasser, may not be in the possession of the chattel found on the premises if he has never physically occupied the house.
e. The owner or the possessor of the land may not be in the possession of chattels in the land even though he owes those chattels, another person not on the land may be in possession of them.
f. The finder of the last chattel obtains possession of it and hence, title to it against those to have no claims prior to his.
g. A finds a chattel, he finds in the course of employment, does not obtain possession of it.
h. As between two or more person, who is in apparent physical control and enjoyment of the use of chattel, the owner of the chattel is in the possession of them.
i. To acquire possession of a thing, it is necessary to exercise such physical control as the thing is capable and it is evident with the intention to exclude others.
Possession in Roman Law- If one could show he has good faith and good cause, he could acquire ownership.
1. Possessio Naturalis
2. Possessio Civilis
Savigny- False Text- Possession
1. Corpus Possessionis- Physical
2. Animus Domini- Intention with which such control is exercised.
Intention to hold or possess a thing is a requirement. But concept of intention may not be in some cases.
Jenning- Adopted a more objective theory.
A man possesses who is in relation to a thing in the position in which the owner of such things ordinarily animus being merely an intelligent consciousness of the fact.
Persons who hold the property will be the owners in majority of the cases. Whenever a person is looked from the point of being the owner, the possession in law belongs to such a person. Jenning’s theory is an improvement of Savigny’s theory.
J.L. Williams Criticism- Possession once acquired may continue even though animus or corpus or both are lost. Therefore, these things are irrelevant.
Holmes Theory- A man must stand in certain physical relation to the object and to the rest of the world and must hav certain intent. And intent must be searched in cases of possession.
This theory is criticized by Dias. He says this idea is a mere generalization and not clear whether physical control should run concurrently.
Pollock’s Theory- His test of De Facto Possession- Physical Control with intent is possession.
Grey- Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical theories of 19th century postulated the concept of will as an essential requirement for exercising legal right and hence personality is the subjective possibility of a rightful will.
Legal personality is an artificial creation of law and entities recognized by law are capable of being parties to a legal relationship. A natural person is a human being whereas legal persons are beings that are imaginary who are treated in similar or lesser degrees.
A legal person is any subject matter except a human being. All of them can sue and can be sued.
Theories of Juristic Personality
1. Fictional Theory- Savigny and Salmond- When the law grants legal personality to an entity that has no mind and no will, in short no legal personality, it is the work of a fiction to which we attribute personality to non-living objects. Legal capacity is considered as extended to artificial subjects admitted by means of pure fiction. Grey supports this theory by saying that it is only human beings who are capable of thinking, therefore it is by way of fiction we attribute will capable of thinking to non-human beings and assign them personality. Wolf says that there are three advantages of this theory. It is analytical, more elastic and it makes easier to disregard juristic personality where it is desirable.
2. Concession Theory- It assumes that associations are artificial creations of the state i.e. law. According to this theory, law is the only source from which legal personality may flow. It is something by way of a privilege ascribed to a group and is nearer to fiction theories in concerning personality. Law decides what shall be regarded as juristic entity.
3. Group Personality or Realist Sociological Theory- Gierke- He says that a group has a real mind and it has a real will and it has a real power of action. The realist theories builds on the concept that groups or associations when recognized by law become a legal reality and also juristic personality.
4. Bracket Theory- Jerring- He contends that the member of an incorporated association is bearers of rights whereas juristic persons are a symbol of giving effect to the purpose of the group. Juristic person is a special form where members manifest their relations of rights and law with outside world.
5. Hoffield’s Theory- He says that juristic persons are creation of arbitrary rules of procedure. As human beings alone are capable of having rights and duties, any group to which the law ascribes juristic personality is merely a procedure for working out the legal rights and jural relations and making them as human beings.
Kelsen’s Theory of Legal Personality- There is no difference between legal personality of a company and that of an individual. Personality in the legal sense is only a technical personification of a complex of norms and assigning complexes of rights and duties.
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