PDA

View Full Version : Define ownership. Example the modes of acquisition of ownership.



vustudents
09-07-2011, 12:20 AM
1. Introduction:
The concept of ownership is one of the fundamental juristic concepts common to all systems of law. This concept began to grow when people started planting trees, cultivating lands and building their homes. They began to think in terms of ‘mine’ and ‘thine’. The idea of ownership followed the idea of possession.
2. Idea Of Ownership:
According to Keeton:
:The right of ownership is a conception clearly easy to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of two views are ‘Austin’ and ‘Salomnd’.”
I. Austin ‘S View Of Ownership”
According to Austin ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to use of indefinite nature.
A. Attributes Of Ownership:
According to Austin, there are three attributes of ownership.
(i) Indefinite in point of user:
The first attribute of the ownership is that it is indefinite in point of user because the thing owned may be used by the owner in very many ways e.g., a owner may build a house on his land may use it for cultivation.
(ii) Unrestricted in print of disposition:
The second attribute of ownership is a right of transfer or disposition with out any restriction.
(iii) Permanency:
The third attribute of ownership is the permanence of the right of ownership. This right exists so long as the thing exists and extinguished with the destruction of the thing.
Criticism:
Austin ‘s idea of ownership has been criticized on the following grounds:
(i) It is pointed out that ownership is not a right a right but a bundle of rights.
(ii) It is not merely a right but also a relationship between right owner and the person owing it.
(iii) Restrictions may be imposed on the use of the thing by means of an agreement or by the operation of law.
(iv) Certain restrictions are imposed on the right of disposal of the owner. The transfer of property is not allowed if its object is merely to defeat or delay the creditors.
II. Salmond ‘S View of Ownership:
According to salmond ownership is a relation between a person and any rights that vested in him. That which man owns is a right and not a thing. To own a piece of land means to own a particular kind of right in the land.
Criticism:
Salmonds ‘s view of ownership has been criticized by many writers:
(i) According to Diguit:
Ownership is a relationship between a person and a thing over which he is permitted on account of this relationship, complete disposal, use and enjoyment. What is owner is a thing and not a right.
(ii) According to Cook:
To use the term “owner” to express the relationship between a person and right is to introduce unnecessary confusion. Ownership is the name give to the bundle of right.
(iii) According to Kocourek:
Ownership is a relationship of the owner of the owner and right to a thing which can be economically enjoyed. The right of ownership is a matter of legal protection.
3. Essentials Of Ownership:
(i) Indefinite in point of user:
It is indefinite in point of user. The owner has liberty to use the thing. He in under no duty not to use it. But under mature legal systems, qualifications have been imposed on the user of the property. Every owner must use the object of ownership in a way as to not to injure the right of other person.
(ii) Unrestricted in point of disposition:
Ownership is unrestricted in print of disposition. An owner can effectively dispose of his property by a conveyance during his lifetime or by will after his death. However restrictions may be imposed by law e.g., transfer of property made with intent to defeat or delay the creditors can be set aside.
(iii) Right to possess:
The owner has a right to possess the thing which he owns. It is immaterial whether he has actual possession of it or not.
(iv) Exhaust the thing:
Owner has the right to exhaust the thing while using it, if the nature of the thing owned in such.
(v) Residuary character:
Ownership has a residuary character. An owner may part with several rights in respect of the thing owner by him. Inspite of that, he continues to be the owner of the thing in view of residuary character.
Example:
‘X’ an owner may give a lease of his property to ‘Y’ and an easement to ‘Z’. His ownership of the land still consists of the residual rights.
(vi) Right to destroy etc.:
Generally, the owner has the right to destroy or alienate the thing the owns.
(vii) Vest in person:
Ownership can only vest in a person.
4. Modes Of Acquisition Of Ownership:
Following are the different modes of acquisition of ownership:
I. Original
II. Derivative
I. Original:
There are three modes of original acquisition.
(i) Absolute
(ii) Extinctive
(iii) Accessory
(i) Absolute:
Ownership is absolute when the same is acquired over previously ownerless object. The rule is that the first occupier becomes the owner. Absolute ownership can acquired in following two ways:
(a) Occupation
(b) Specification
(a) Occupation:
The physical control of the thing is essential in the case of occupation. Such an ownership is acquired in the case of wild animals, birds, fish etc.
(b) Specification:
In the case of specification, material belonging to one person are given a new shape clay may belong to one person but the sculptor may make a statute out of it.
(ii) Extinctive:
Ownership is extinctive if the ownership of a previous person is finished on account of adverse possession by the acquire.
(iii) Accessory:
It is accessory if the ownership is acquired as a result of accession. If some land is added on account of a change in the course of the rive, the same is acquired by the owner of the property adjoining it through the process of accession.
II. Derivative:
Ownership may consist in taking the thing form another with or without his consent both are the cases of derivative acquisition since the new owner’ s title is derived form that of his predecessor.
5. Conclusion:
To conclude, I can say, that concept of ownership is very important. As stated by Hold sworth the English law reached the concept of ownership as an absolute right through development in the law of possession.