(3) personal property (key property concepts (Ewan McKendrick (ed), Goode…
(3) personal property
key property concepts
Ewan McKendrick (ed), Goode on Commercial Law (2016), 34–35:
Do not just look for ownership or possession. Look for limited interest…
- “Interest is to be distinguished from title. A person’s interest in an asset denotes the quantum of rights over it which he enjoys against other persons … His title measures the strength of the interest he enjoys in relation to others. English law attributes great significance to possession. A person in possession with the intention of assuming ownership is treated as owner, and given all the rights and remedies available in tort and property law … against everyone except him who has a better title.”
- U can have limited interest in goods. not necessary to
- have full ownership/possession/ you don’t need to have highest right in a good for it to be useful for u.
Commercial law will take an asset and allow many different people to have different interests in it at the same time.
Ewan McKendrick (ed), Goode on Commercial Law (2016), 34:
BILL SWALDING (OXFORD) SAYS THERE IS NO SUCH THING AS OWNERSHIP..
- Ownershipis conventionally defined as "the residue of legal rights in an asset remaining in a person, or in persons concurrently, after specific rights over the asset have been granted to others. ... By contrast, one who enjoys merely specific rights, e.g. possession under a pledge, lien or other bailment, has only a limited interest.”
Classic view of ownership: est dominion: use abuse dispose (???)
- note: Owner is default holder to title of the thing.. Bailment = giving your thing to another person to hold (temporarily) but you remain the residual right holder. That person w that specific right may have more power over you.
- Key property concepts
Within English law the following terms are important …
Ownership [O v Possession is the most impt distinction]
- At common law only two possible interests in personal property can exist (cf. equitable interests)
types of property
Personal property / chattels personal
- protected through law of tort, but not through law of property
- higher legal protection than pure I
- an anomaly. Intangibles represented by document that has a physical presence. This is common in commercial law. Law has much less of a problem dealing w this.
- e.g. Bill of lading, bill of exchange, promissory note
- Relevant obligation regarded by law as bound up in the document itself
- can be ‘possessed’ at common law
- In effect, treated as a chattel. Ownership/possession can be transferred by delivery of document. Same legal protection as chattels
- The ability to possess that piece of paper as a surrogate for the debt itself. If u don’t have that debt of paper u cannot possess according to the law, the underlying debt/value.
- law in action
- When bol is transferred, constructive possession is transferred i.e. TRANFERRING THOSE GOODS. Bol is a unique legal document. Its like a cheque: the paper becomes the representation
- v difficult area of law. No physical manifestation whatsoever. If A owes B £, it is purely intangible. There is nothing u can touch/hold/exclude another from that debt.
- eg Debts, goodwill, copyright, shares in a company
- Cannot be ‘possessed’ at common law: authority from HL OG and Ellen (???): HL was asked if a cy's debts could amount to property that the law would protect. The debts were the whole of the cy;s assets. They were deprived of ability to call in debts. You are owed 1.7mil and the receivers settle the debt for 600k, but it turns out receiver is not suppposed to be appointed in the first place
- Rights only enforced by legal action rather than by possession
- Hence the term: chose in action
- May also be referred to as …
- Things or choses in action
- Incorporeal property
- Goodwill is a v important asset in a cy = reputation encourages good dealings.
- i.e. money, chattels, goods in a sale
- Can be ‘possessed’ at common law
- "possession is 9 tenths of the law", more important than ownership
- one of the commercially more sigfig rights
- note: If all ur money is in coins/the bank, they are protected differently. Bank money is nt even legal tender.. Money operates in a different way
importance of property
- what is personal property? everything u own that is nt land ie accounts / debts [in companies]
- note: Chattels = tangible goods = assets
- note: "ownership possession title interest". They are not mutually exclusive and be very accurate when using them.
DELTE: Personal property and personal property rights relevant to commercial law in a variety of ways:
Sale of goods: transferring ownership in goods = It is the core of passing property assets. (SOG).
Bailment: hiring goods, carriage and storage of goods. Bailment = specific and important commercial activity. Lending laptop to friend is a gratiutus bailment. When you give anyone anything of yours to hold for a temporary period of time = bailment.
Dealings in intellectual property and other intangibles. Intangibles is one of the most contentious areas of property law. Personal property law is still stuck in a world where everything that is bought n sold is still tangible. (most old texts still refer to cattle etc). But they are no longer the only things that people want to buy/sell.
E.g. licences of IP, assignment of debts
Creation and enforcement of security interests in personal property (v important if u r creditor). Gives security when u have loaned $.
Consumption of goods and impact of property rights
E.g. industrial processes, use of fuel to propel a ship