property

property

n. anything that is owned by a person or entity. Property is divided into two types: "real property" which is any interest in land, real estate, growing plants or the improvements on it, and "personal property" (sometimes called "personalty") which is everything else. "Common property" is ownership by more than one person of the same possession. "Community property" is a form of joint ownership between husband and wife recognized in several states. "Separate property" is property owned by one spouse only in a community property state, or a married woman's sole ownership in some states. "Public property," refers to ownership by a governmental body such as the federal, state, county or city governments or their agencies (e.g. school or redevelopment districts). The government, and, in particular, the courts are obligated to protect property rights and to help clarify ownership. (See: real property, personal property, personalty, common property, community property, separate property, public property)

property

In relation to goods, because of the Sale of Goods Act 1979, there will be an identifiable instant at which the ownership or right of property in the goods passes from seller to buyer. The importance of ascertaining the precise time lies not only in questions of risk but also in cases of insolvency where the destination of the goods to a trustee in bankruptcy, receiver or liquidator can leave the other party to the transaction only with the right to rank for a dividend as a general creditor. The Act provides that property passes when it is intended to pass, i.e. the traditio, or physical transfer, required by the civil law is not required. Property does not pass in unascertained goods. If the parties' intention cannot be determined, certain rules are laid down to resolve the matter.

Rule 1: where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made; it is immaterial whether the time of payment or the time of delivery, or both, be postponed.

Thus, in the case of a sale in a shop to a customer of an item identified in the shop, property will pass when the contract is formed. Rule 2: where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until the thing is done and the buyer has notice that it has been done. The requirement for notice is important if the rules relating to risk are considered. As risk normally passes with property, this notice would have the effect of transferring property to the buyer, who then should consider insuring the goods, even although they are outwith his possession.

Rule 3: where there is a contract for specific goods in a deliverable state but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until this has been done and the buyer has notice that it has been done.

It is important to distinguish Rule 3 from Rule 2. Rule 2 refers to goods that are not in a deliverable state whereas Rule 3 refers to goods that are in a deliverable state.

Rule 4: when goods are delivered to the buyer on approval, or on sale or return, or other similar terms, the property in the goods passes to the buyer:

1. (a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction;
2. (b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of that time, and, if no time has been fixed, on the expiration of a reasonable time.

Rule 5: this rule does not apply to specific goods but to goods that at the time the contract was made were unascertained. Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods then passes to the buyer; the assent may be express or implied, and may be given either before or after the appropriation is made. Where, in pursuance of a contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer and does not reserve the right of disposal, he will be taken to have unconditionally appropriated the goods to the contract.

PROPERTY. The right and interest which a man has in lands and chattels to the exclusion of others. 6 Binn. 98; 4 Pet. 511; 17 Johns. 283; 14 East, 370; 11 East, 290, 518. It is the right to enjoy and to dispose of certain things in the most absolute manner as he pleases, provided he makes no use of them prohibited by law. See Things.
     2. All things are not the subject of property the sea, the air, and the like, cannot be appropriated; every one may enjoy them, but he has no exclusive right in them. When things are fully our own, or when all others are excluded from meddling with them, or from interfering about them, it is plain that no person besides the proprietor, who has this exclusive right, can have any, claim either to use them, or to hinder him from disposing of them as, he pleases; so that property, considered as an exclusive right to things, contains not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or by giving them away to any other person, without any consideration, or even throwing them away. Rutherf. Inst. 20; Domat, liv. prel. tit. 3; Poth. Des Choses; 18 Vin. Ab. 63; 7 Com. Dig. 175; Com. Dig. Biens. See also 2 B. & C. 281; S. C. 9 E. C. L. R. 87; 3 D. & R. 394; 9 B. & C. 396; S. C. 17 E. C. L. R. 404; 1 C. & M. 39; 4 Call, 472; 18 Ves. 193; 6 Bing. 630.
     3. Property is divided into real property, (q.v.) and personal property. (q.v.) Vide Estate; Things.
     4. Property is also divided, when it consists of goods and chattels, into absolute and qualified. Absolute property is that which is our own, without any qualification whatever; as when a man is the owner of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other animal, which never had its natural liberty in a wild state.
     5. Qualified property consists in the right which men have over wild animals which they have reduced to their own possession, and which are kept subject to their power; as a deer, a buffalo, and the like, which are his own while he has possession of them, but as soon as his possession is lost, his property is gone, unless the animals, go animo revertendi. 2 Bl. Com. 396; 3 Binn. 546.
     6. But property in personal goods may be absolute or qualified without ally relation to the nature of the subject-matter, but simply because more persons than one have an interest in it, or because the right of property is separated from the possession. A bailee of goods, though not the owner, has a qualified property in them; while the owner has the absolute property. Vide, Bailee; Bailment.
     7. Personal property is further divided into property in possession, and property or choses in action. (q.v.)
     8. Property is again divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter consists in legal rights, as choses in action, easements, and the like.
     9. Property is lost, in general, in three ways, by the act of man, by the act of law, and by the act of God.
    10.-1. It is lost by the act of man by, 1st. Alienation; but in order to do this, the owner must have a legal capacity to make a contract. 2d. By the voluntary abandonment of the thing; but unless the abandonment be purely voluntary, the title to the property is not lost; as, if things be thrown into the sea to save the ship, the right is not lost. Poth. h.t., n. 270; 3 Toull. ii. 346. But even a voluntary abandonment does not deprive the former owner from taking possession of the thing abandoned, at any time before another takes possession of it.
    11.-2. The title to property is lost by operation of law. 1st. By the forced sale, under a lawful process, of the property of a debtor to satisfy a judgment, sentence, or decree rendered against him, to compel him to fulfill his obligations. 2d. By confiscation, or sentence of a criminal court. 3d. By prescription. 4th. By civil death. 6th. By capture of a public enemy.
    12.-3. The title to property is lost by the act of God, as in the case of the death of slaves or animals, or in the total destruction of a thing; for example, if a house be swallowed up by an opening in the earth during an earthquake.
    13. It is proper to observe that in some cases, the moment that the owner loses his possession, he also loses his property or right in the thing: animals ferae naturae, as mentioned above, belong to the owner only while he retains the possession of them. But, in general,' the loss of possession does not impair the right of property, for the owner may recover it within a certain time allowed by law. Vide, generally, Bouv. Inst. Index, b. t.