Jacob Wilson: Civil Law Property Summary 2005-2006 Prof. David Lametti.

Term One

1. What is Property?

2. Does the Extrapatrimonial - Patrimonial Rights Distinction Remain Useful?

Patrimonial Rights (PRs)

Extra-Patrimonial Rights (XPRs)

Applying Theorists to XPR / PR distinction

3. Does the Distinction Between Real and Personal Rights Remain Useful?

Registration of Real Rights cases

Abandonment of Real Rights

5. Categorization of Objects of Property

6. Movables and Immovables

6. Public versus Private Domains

7. are Aboriginal rights based on Aboriginal title or vice-versa?

Term Two

1. Theorists

Lametti’s taxonomy:

Ownership and its Limitations

Possession

Prescription

Immovable Accession

Movable Accession

Special modes of ownership: coownership, and superficies

Divided coownership

Superficies

Usufruct

Use

Emphyteusis

Real Servitudes

Substitution

Trusts

Property categories by rule

Property institutions and incidents

Possession and Accession

Modes vs Dismemberments

1. What is Property?
Theorist / Ideas / Criticisms
Classic theories / -Blackstone’s ‘sole and despotic domain’ / -too absolutist
-Classic teaching tool: property a ‘bundle of rights’ / -not enough reference to the object
Harris / -2 functions of property law:
-the use of things
-the allocation of things
-Resources are items of social wealth: scarcity creates value, is a prerequisite for property
-Ownership is ‘authorized self-seekingness’
-Ownership spectrum
-Mere property to full-blooded ownership
-Limitations are not an essential part
-100% ownership is theoretically possible
-Somewhere on the spectrum is the point where you can sell or alienate the resource
-Ownership is enforced primarily by trespassory rules and ownership rules; as well as secondary property limitation, property duty, property expropriation rules.
-Focus is not on either objects or on persons, but both: property is relationships to other people through property. Harris is something of a ‘bundle of rights’ theorist. / Lametti:
-100% ownership is not possible
-Limitations are essential to the system: the more valuable your property is the more justification you have to provide.
-Harris downplays the limits too much
At least his starting point is the object – you have scarce resources, and then you have the rights related to them. But he doesn’t make the connection between different objects and different points on the spectrum.
Lametti: Harris implies a heirarchy of degrees of ownership, when in fact you could just have a different array of incidences: e.g. who’s further along on the spectrum – a corporate shareholder, or a bare owner of a property under usufruct?
Hohfeld / -This is a personalist or subjectivist approach – property is relationships between people, period.
-It is about rights and correlative duties: one to one.
-Rights in rem, which are multital relationships – are a stacking of rights in personam, which are bilateral, paucital relationships
Right Duty Power Liability
X X
Privilege No Right Immunity Disability / -obsessed with symmetry: but property relationships are better explained as asymmetrical (Penner).
-the third party doesn’t care about the person, just the object: when the object is sold the relationships of third parties to the object don’t change (Penner)
-people uphold the institution of property itself rather than the individual right-duty relationships: an uninterested third-party might stop a trespasser on someone else’s property
-are property relationships not distinguishable from contractual relationships?
-without reference to the object of property there is no explanation for why the different sets of paucital relationships can vary.
-ignores the content of the property rights
-what’s the difference between rights & powers, duties & liabilities, etc. Is it just more intensity?
Honoré / ‘Content’ of ownership comprises 11 incidents:
  1. right to possess
  2. right to use
  3. right to manage
  4. right to the income
  5. right to the capital
  6. right to security
  7. right to transmit (to sell, give)
  8. absence of a term
  9. duty not to harm others
  10. liability to execution (by creditors)
  11. residuary character (you get the whole thing after dismemberments, rental, etc.)
You don’t need all the incidents to have ownership
Honoré is also a bundle of rights theorist / Duty part underdeveloped, but still perhaps stronger than in Harris
Unclear what the minimum requirements for ‘ownership’ are
The degree to which the object informs the relationships is unclear
It is still a rights and duties discourse – this is still pretty personalist.
Penner / Harris, Honoré, Hohfeld too malleable: what is the essence of property?
Property relationships are asymmetrical, contra Hohfeld: One person just owns (it’s not that they have an ‘in rem’ right), and everyone else has an in rem duty not to interfere with it.
So by interposing the object you have asymmetry.
“exclusion, not use, dominates the legal analysis”.
The right to property is the right to exclude others from things, this is justified by the usefulness of it to the owner.
“The exclusion thesis… characterizes property primarily as a protected sphere of indefinite and undefined activity, in which an owner may do anything with the things he owns”
Things are the separable objects of social wealth. The notion that these identifiable objects can be separated from their owner in a way that does not diminish their owner himself – there is nothing idiosyncratic or normative in the valuing, the object ‘might as well belong to someone else’.
If there is idiosyncratic attachment to an object this conflicts with the notion of separability: If its entire value is idiosyncratic there is no reason to have to protect it. / Doesn’t take account of the thing enough. Puts the object in but ends up focussing on exclusion.
Doesn’t describe how the object changes the relationships around the thing.
JW: Neither the bundle of sticks, nor the nature of the object is key for Penner. For Penner, property is based on exclusion.
But there are different types of exclusion – until you look at the object you won’t understand these kinds of exclusion.
Neglects owner’s duties and limitations
Singer / Criticism of the Blackstone ownership model
Property rights are norms – social constructs
“social relations model”
Among those norms are obligations on owners
Property norms set limits, these vary across cultures
Feuerstein’s Polartek mill example: ‘property obligations’? / Positive aspects:
-there is a moral aspect to property
-property is a social construct: norms
-focus on obligations which is absent elsewhere
Criticisms:
-Munzer: confuses legal and moral obligations
-Munzer: no talk of the essence of property
-Munzer: too amorphous – doesn’t tell us which social constructs are good or bad, what should be in property and what shouldn’t.
-factory a poor example – these are (weak) moral obligations, and they might arise from contractual rather than property relations
Lametti / “Private [Heller] property is a social institution [Singer] that comprises a variety of contextual [Singer] relationships [e.g. rights, obligations] among individuals [Hohfeld, Honoré, Harris] through objects of social wealth [Harris] and is meant to serve a variety of individual [Penner] and collective [Singer] purposes.
It is characterized by allocating to individuals a measure of [Harris, Honoré, Underkuffler] control over the use and alienation of, some degree of exclusivity [Penner] in the enjoyment of, and some measure of obligation to and responsibilities for [Singer] scarce [Harris] and separable [Penner, Underkuffler] objects of social wealth [Harris].”
Key: rights not absolute; property socially constructed. / Criticisms:
-too amorphous (though you don’t want to be too defined
-where’s the essence of property in this list of concepts? When is it property and when is not?
-could be more explicit that property is a social construct not a natural right
-how is clear that the object of property changes the relationships
-how does this not apply to public, commons property as well?
Underkuffler / What is property? Four elements:
-Theory of rights: which sticks in the bundle? Some idea that the person has decisional power (kind of like a weaker Blackstone, or Harris’ self-seekingness, or Penner’s exclusion view)
-Stringency: what is the extent of limitation on those rights?
-Space/field/physical scope: kind of like the separability idea. The object matters.
-Time: different objects of property have different time associated with them (e.g. land: infinite; IP: 20 years, 75 years, renewability).
Heller / Private property not the only game in town. The reason we have to justify it is because there are other alternatives.
But state, common, private categories inadequate.
There’s also:
-Anti-commons property (hyperfragmentation leads to underuse rather than overuse as in the tragedy of the commons. E.g. Soviet supermarkets, patent holdouts)
-Limited commons property (condo, community centre)
-The ‘bundle’ metaphor is stale – we need a new one. / Doesn’t tell us what the new metaphor should be.
Is this analysis really new?
JW criticism: all these five categories are ideal types. The real incidents of property are somewhere between.
Marilyn Smith, Law & Economics theorists / Real rights are distinct from personal rights because of low information costs for third parties

At the end of the day, can you say that if you can’t sell it, it ain’t property?

(though it doesn’t work the other way around: you can sell personality rights)

2. Does the Extrapatrimonial - Patrimonial Rights Distinction Remain Useful?

ANSWER STRUCTURE

  • Is it time for a Kuhnian paradigm shift?
  • Short answer:
  • Distinction still useful, but there are problems.
  • Courts could maintain a clearer distinction but have not been.
  • Go into critiques of Aubry and Rau view of Patrimonial rights – see chart below. Problems with 1b, 2 but 1, 1a, 3 OK.
  • Go into critiques of traditional view of XPRs (CCQ 3)
  • What are personality rights (perhaps with the exception of right to life)? Possible explanations:
  • Rothman: once they’re marketable, they’re PRs.
  • Like Rothman: PRs don’t have to be completely alienable to be PRs. The XPR is simply the right not to have your PR personality rights completely alienated, kind of like the fact that a patrimony is itself an XPR.
  • L’Heureux-Dubé: since they remain semi-alienable, they’re XPRs, with a ‘patrimonial aspect’.
  • Another idea: since they are attached to the person but can have pecuniary value, they’re quasi-PRs (Aubry, Malo, Deschamps suggest this makes sense, but Moore doesn’t)
  • They’re XPRs, but you can market certain XPRs.
  • They’re both: XPRs and PRs overlap on a spectrum or Venn diagram.

Moore v Regents of the University of California (1990)
Jurisdiction / California
Facts /
  • Moore had leukemia and had cells removed as part of the treatment. Moore had a unique T-cell structure.
  • These cells were taken by doctors, without his permission, reproduced into a cell line, patented and sold in a lucrative medical research scheme.

Issues / Did Moore have a claim in conversion (applicable to property), which would enable him to demand royalties from medical innovations from his spleen and body parts?
Does a person have property rights in their body parts?
Holding /
  • No. (split decision) All Moore has is a claim for damages for the fact that the physicians did not disclose to him that they had an economic interest in his spleen before the operation.

Reasoning / MAJORITY: no cause of action in conversion
  • No precedent
  • Policy implications for scientific research: these are of paramount importance
  • Statute requiring consent for the use of body parts in research doesn’t apply here
  • Rights to an image is different from a generic cell that is common to all people
Other argument not cited in the judgment:
-the value of the patented cell line was created by the researchers’ work and ingenuity. Though the cell line could not have been created without Moore’s cells, his cells had no value without the researchers’ input.
DISSENT:
  • If someone stole it would be theft – implying property.
  • If you can sign your body parts over for research this implies you have control over them
  • Surgeons interfered with his right to determine how his cells would used.

Comments / QC law would say the following:
  • CCQ 22: person’s consent required for the use of the body part.
  • CCQ 25: The alienation of part or product of body shall be gratuitous.
In practice, being able to withhold consent might enable patients to extract money for the body part.
Tough questions:
What are the cells between when it’s a cell and when it’s a patent?
When is it person, and when is it property?
Does the fact that these cells have economic value make them property?
Patrimonial Rights (PRs)

CCQ 2: “Every person has a patrimony. The patrimony may be divided or appropriated to a purpose, but only to the extent provided for by law.”

Classic definition:

  • A “universality”: an aggregate of assets and liabilities considered as a whole, a grouping to be treated as one; existing independently of its components
  • Patrimony is a legal universality: the totality of a person’s assets and liabilities having monetary value
  • Patrimony includes existing and potential wealth (i.e. one’s property, one’s “accounts receivable”, one’s future earnings)
  • Ghestin metaphor: patrimony a ‘container’ – patrimony includes the container and its contents
  • One’s patrimony stands as one’s pledge against all one’s creditors: the creditor has rights to anything in the container if required.
  • Traditional distinction between patrimonial and extra-patrimonial rights: former have monetary value
  • The right to a patrimony is itself an extra-patrimonial right: inalienable.

Aubry and Rau: Subjectivist approach / Critiques / Exceptions
1. Patrimony is derived from personhood. / No debate here.
Implication 1(a)
Each person has (only) 1 patrimony (CCQ 2) / -An individual who owns a corporation
-Family / matrimonial patrimonies
-The patrimony of the deceased person for whom one is the executor
Implication 1(b)
All patrimonies are attached to a physical or moral person
They are therefore fused upon inheritance (although heirs not responsible for net debt) / -What about when heirs refuse a patrimony?
-What about trusts and foundations? SCC once ruled that the trustee appeared to be the owner, CV law used to see it that way, today CCQ has decided that patrimonies can attach to purposes ( CCQ 1256-7, 1260-2). JW: or could we say that trusts are the property of the trustee, just with greater obligations and duties, and with a beneficiary retaining certain rights?
- Ghestin and MacDonald propose an objectivist approach: all patrimonies might attach to a purpose. Among these purposes would be each person being able to engage in economic relations
2. Patrimonies are unitary and indivisible / -What about multiple heirs?
-You can create divisions or identify what you are pledging for your creditors (CCQ 2: ‘it may be divided’)
-There are also heirarchies of claims on your patrimony.
-One can incorporate one’s business
-The tools of one’s trade are inalienable (e.g. plumbers)
-Certain fences can be set up, especially around matrimonial property
3. Everyone’s patrimony is inalienable
Implication:
-You have a patrimony even if there’s nothing in it. / No debate here.
Extra-Patrimonial Rights (XPRs)

CCQ 3: “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable.”

Classic Notions / Critiques / Exceptions
1. XPRs are non-pecuniary /
  • But compensation for what seem to be XPRs is monetary (Phillips, Torrito, Aubry, Malo).
  • One’s XPRs can have value – one can consent to an intrusion of privacy, e.g. pornography, Deschamps (but then does that make it a PR?)

2. XPRs are inalienable:
(a) i.e. non-transmissable upon death or insolvency /
  • This is upheld in Phillips, Laprairie, Libman. Perhaps if it’s transmissible, it’s a PR!
Transmissability of XPRs in a body:
Phillips:The widow was not given damages for the unauthorized autopsy on her husband because she inherited his XPRs. Nor was she given damages because she had property rights in the corpse. Instead, she got damages for pain and suffering. Today: CCQ 42: widow has right to dispose of her husband’s body as per her wishes (failing instructions in a will). This is an XPR.
  • But heirs can protect the deceased’s XPRs (reputation, privacy) indirectly:
Torrito: girl with a horrible illness in institutionalized care. The Foundation that was raising money to support people with this illness used her picture, her parents sued after her death. Did her parents inherit her XPR? No. But they got moral damages themselves.
Transmissability of XPRs in a company:
Laprairie: lawyer-client confidentiality is an XPR, which is not transmissable to successors.
SOQUIA v Libman:confidentiality of a company’s financial information is an XPR, which is not transmissable to successors.
  • JW: The holder of the XPR can authorize certain uses of the XPR, but XPRs don’t automatically transfer to the successors. So XPRs are alienable to a degree (Lametti).

2. XPRs are inalienable:
(b) i.e. non-transferrable (non-sellable) /
  • Malo, Deschamps, Aubry appear to be exceptions: image appears to be sellable.
Malo v Laoun
At Trial, Malo got:
-$10k for what she would have charged for the photo (PR)
-$15k for the usurpation of her artistic identity (PR or XPR?)
-$5k for moral damages – privacy or reputation (XPR)
At Appeal, Rothman gave Malo:
-$10k for what she would have charged for the photo (PR)
-$15k for the lost opportunity to contract for her image to other sunglass companies (PR)
-$5k for moral damages (XPR)
  • Rothman rejects ‘usurpation of artistic image’ category (usurpation is the language of theft),he flips the $15k from XPR to PR. There’s either economic or moral damages. The only moral damage is to privacy. The use of her identity is economic, period.
  • Rothman also said her image was not devalued in general by Laoun’s use of her image, but she did lose her ability to contract for her image to other sunglass stores.
  • JW: potential 4th claim if the image was used distastefully:Possibly both PR damages (devaluation of image) and XPR damages (defamation)
Deschamps v Renault
  • Rothman J goes so far as to say that “the names and likenesses of the petitioners comprise proprietary rights which they are free to exploit commercially”. Injunction granted to stop using the images. Rothman J is basically saying that it is their propreitary right that was violated.
  • Rothman might have gone further in Malo than in Deschamps, where it was just an injunction, In Malo he awards damages for what she would have charged but also lost future income.
Aubry v Editions Vice-Versa
  • L’Heureux-Dubé: Right to privacy trumps freedom of expression here, ‘moral damages’ awarded.
  • But there is also a ‘patrimonial aspect’ to Aubry’s XPR image: she could have gotten money for what Vice-Versa would have had to pay for a model, not just the $2000 for invasion of privacy.
  • Could Aubry have claimed money for the usurpation of her artistic identity, given that it didn’t have marketable value? No. Maybe it has marketable value now that it’s being exploited?
Moore v Regents of University of California
  • Did Moore’s XPR to his bodily integrity become a PR as soon as it was exploited?
  • XPRs may be transferrable under certain conditions without being permanently inalienable, but here he loses all rights to his cell line.

Applying Theorists to XPR / PR distinction
Concept / Theorists / Is it property according to this concept?
Malo, Deschamps’ images / Aubry’s image / Moore’s cells
Sole and despotic domain / Blackstone
Exclusion / Penner
Scarce objects of social wealth / Harris
Bundle of sticks / incidents / Harris, Underkuffler, Honoré
Spectrum of rights / Harris
Asymmetry / Penner
Relations between people / Hohfeld
To objects through people / Lametti, Harris, Honoré
Rules: trespassory, ownership, limitation, duty, expropriation / Harris
Limitations, obligations, duties / Underkuffler, Lametti, Singer
Separability / Penner, Lametti
Social / cultural constructs, norms / Singer, Lametti
Low information costs of real rights / Marilyn Smith
Anti-commons / Heller
Limited commons / Heller
Do you have to be able to sell /alienate it for it to be property? / Jake
3. Does the Distinction Between Real and Personal Rights Remain Useful?
Real rights / Personal rights
Classic notions /
  • Jus in rem
  • In an object
  • Universally opposable
  • Generally corporeal
  • Low info costs
/
  • Jus in personam
  • In a person / claim
  • Specifically opposable
  • Generally incorporeal
  • High info costs

Saleilles:
Everything’s a real right / Determinate real rights / Indeterminate real rights
Planiol
Everything’s a personal right / Personal rights with a universal passive obligation / Personal rights
Ginossar
Spectrum of claims on value / Object – owning / Claim – owing
Ginossar
It’s purposive: its about the purpose of the agreement or the relationship
There’s a spectrum of claims in terms of their strength – you don’t have real or personal rights you just have relative rights – you still can tell who gets the bulldozer in secured lending situations
Kind of like Harris’ ownership spectrum, but including rights in personam
It’s just claims on value not claims on things vs claims on prestations.
This overcomes issues of present property and future property.
MacDonald: similar views to Ginossar
Lametti somewhat sympathetic to MacD and Ginossar, but three problems.
1. what happened to the object – surely it’s more than its value
2. undermines the fact that duties of others don’t change when you sell property
Should we be focussing on the object of the right (old view) or the right in the object (new view)

Ginossar, MacDonald: