MLL327 Study Guide - Final Guide: Personal Rights, Sony Xperia Xzs, Intangible Property
24 May 2018
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TOPIC ONE
• explain the (essential) features of property
WHAT IS PROPERTY AND ITS FEATURES?
• Blackstone Commentaries of the Laws of England stated that the right of property is that “sole
and despotic dominion which one man claims and exercises over the external things of the
world, in total exclusion of the right of any other individual in the universe
From this definition the following features of property can be distinguished:
(a) it is an object - i.e. a thing;
a. Outside of a person
b. Things must be separate and apart from ourselves
c. Physical things (land and chattels) and intangible things (shares, and trademarks)
d. Importance of object in property relationship (Lametti)
(b) dominion/power over a thing – i.e. the right to use a thing;
a. Control exercised by a person over an object
b. Dominion denotes some legally authorised power
c. “Despotic” denotes an absolute power
d. Power concentrated in a specific person(s) (“sole”):
i. Distinguish: right to a bicycle (property right) vs right of access to library
(personal right)
ii. Indigenous rights are concentrated in clan/group
(c) externality of things; and
a. Demarcation of property/boundaries
b. Must be identifiable
(d) exclusivity – the entitlement to exclude others from using it.
a. To exclude others from:
i. (a) enjoying same rights; or
ii. (b) interfering with the exercise of rights
b. Exclusion serves the use interests of property (Smith)
c. Power of exclusion is said to be total
d. State can enforce exclusion (matter of law not power)
e. Excludable if it is feasible for a person to exercise regulatory control over access of
strangers to benefits of resource (Gray)
(e) Enforceability of right against other persons:
a. Right in rem (operates against the world) - property right
– Enforceable against a large and indefinite class of people
– Continued existence of a thing is required
– Criticism: rather a consequence or feature of a property right than
an identification tool
– Universal acceptance of in rem operation of a property right:
– “A real right, such as ownership, is as every first year law student
knows, enforceable against the whole world.” (XZS Industries v AF
Dreyer (Pty) Ltd (2004 (4) SA 186 (W) 196F/G)
b. Right in personam (enforceable against a person) – personal right
• Enforceable against specific person (parties privy to relationship)
• Not depended on existence of a thing
• Basis for division between personal rights and property rights (great divide)
find more resources at oneclass.com
find more resources at oneclass.com
(f) Transferability of right
a. Property rights are said to be transferable/assignable
• Criticism:
• To wide: most rights are transferable (including personal rights)
• Some property rights are not assignable (non-assignable residential
lease)
• Native title rights are not transferable (Millirrpum)
(g) Value
a. Market value
b. Sentimental value
c. Negative value? (toxic chemicals)
d. Personal rights also have market value
e. Value not necessary a characteristic of property
find more resources at oneclass.com
find more resources at oneclass.com
• explain what is meant by the legal reference to property
(h) Legal recognition
• Property rights must be recognised and legally enforceable
• ‘Property and law are born together and die together. Before laws were made
there was no property. Take away the laws and property ceases’(Bentham)
• It is a legal construct: there is no property in absence of a legal system
• Criticism: Other rights are also recognised by law
• Legal identity of property depends on legal system in which it is enforced:
Common law, Equity or statute
• Aboriginal rights recognised as proprietary because the common law and
statutory framework recognise them
• Aboriginal rights only recognised if rights have their origin in pre-sovereignty
law and custom (Yorta Yorta)
• Pre-sovereignty rights may encumber title of Crown upon colonisation
• Post-colonisation aboriginal rights are destroyed
Criticism of features approach: One must not overstate essential characteristics of property to
identify property (see for example Millirpum decision):
MILLIRRPUM V NABALCO 1971
FACTS
Claim that a mining company was interfering
with right to perform ritual ceremonies
ISSUE
whether Aboriginal customary rights over land
qualified as ‘property’
HELD
According to the court the following incidents of
property were absent:
– No use and enjoyment - right of
clan extended to performance
of rituals only
– Not exclusionary - no right to
exclude other members or other
clans;
– Inalienable - no right to alienate
the land - Aboriginal custom
prohibited transfer of rights
Held that due to absence of the above
features: absence of property rights to land in
Anglo-Australian meaning of the term.
MABO V STATE OF QLD (2)
FACTS
The action was brought as a test case to
determine the legal rights of the Meriam people
to land on the islands of Mer, Dauar and Waier
in the Torres Strait, which were annexed to the
state of Queensland in 1879. Prior to British
contact the Meriam people had lived on the
islands in a subsistence economy based
on cultivation and fishing. Land on the islands
was not subject of public or general community
ownership, but was regarded as belonging to
individuals or groups.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Topic one: explain the (essential) features of property. Despotic denotes an absolute power: distinguish: right to a bicycle (property right) vs right of access to library (personal right) Enforceable against a large and indefinite class of people. Continued existence of a thing is required. Criticism: rather a consequence or feature of a property right than an identification tool. Universal acceptance of in rem operation of a property right: A real right, such as ownership, is as every first year law student knows, enforceable against the whole world. (xzs industries v af. Property and law are born together and die together. Before laws were made there was no property. It is a legal construct: there is no property in absence of a legal system: criticism: other rights are also recognised by law. Legal identity of property depends on legal system in which it is enforced:
