Definition and Conceptual

Analysis of Property’

Kokebe Wolde
Introduction to Property Law
In this Presentation:
 What is ‘property’?: the Definition

 Attributes of in rem rights

 Property and the notion of patrimony

What is ‘Property’?

 So, what is property?

 The term is used in different senses in everyday
language as well as in law:-
 Property as the things/objects one controls.
 Property as possession/control of a thing.
 Property as real estate.
 Property as ownership exercised over an
object/thing.
What is ‘Property’? …... ctd.

 In law as well, the term is used in different senses:

 Property as ‘wealth’ – anything with economic value.

BUT:
 Property is not the same thing as wealth;
 There is property without economic value and
economic value without property.
What is ‘Property’? …... ctd.

In law …
 Property as the relationship between a person and a thing.

But this is not true; Because:

1) Essentially, property is not a relationship between a

person and a thing.
2) Material things are not the only objects of property; non-
material/non-physical things (such as shares, patent,
copyright, etc.) can be objects of property.
What is ‘Property’? …... ctd.
In law …
 Property as the collection of all legal rights of a person,
including his/her human rights/rights of personality and
proprietary rights. Salmond, Locke, Hobbes, Madison.
o They seem to equate property with rights a person has,
including his fundamental rights.

o This is too broad and doesn’t help us understand property.

Understanding this, Salmond has refined his definition/theory
of what ‘property’ is as the totality of proprietary rights of a
person.
 What is ‘Property’? …... ctd.

 ‘Property’ as in rem (real) rights:- rights which can be

asserted against everyone in the world in respect of a
determinate thing, be it corporeal (tangible) or
incorporeal (intangible).
o So, property is proprietary rights in rem (over a thing, be it
corporeal or incorporeal); proprietary rights in personam
(interests arising from contractual obligations or from extra-
contractual relations) are not property;
o Rights in personam are proprietary rights arising from in
personam relationships; not from real relationship (i.e.,
relationship of a person with all persons in the world as
regards the exercise of a right in respect of a thing).
What is ‘Property’? …... ctd.
Types of in rem rights/property.
 Ownership
 Usufruct
 Use
 Servitude
 Mortgage
 Pledge
 Antichresis
 Right of recovery
 Right of pre-emption
 Right of promise of sale, and,
 In connection with private use of land,
possessory/leasehold right
The conception of ‘Property’ & Terminology in the
Civil Code

 The conception of ‘Property’ in the Civil Code.

• A cursory reading of the Civil Code reveals that property is
conceived by the Civil Code as in rem right (proprietary right
in/over corporeal or incorporeal goods that are valid against all
persons in the world):
o Title VIII, Book III of the Code uses the term ‘rights in rem’

o Article 1204 defines ownership ‘as the widest right that may be had over
a thing’.

• On terminology in the Civil Code: ‘property’, ‘good’ &

‘thing’ are used interchangeably.
Attributes of in rem rights (property)

1. In rem rights confer on the holder of the right boundless

powers ranging from using (not using) abandoning
/destroying it.
 Of course there is a qualification to this assertion:
 The powers and privileges that come with in rem rights/a
property depend on the type of property right (eg. ownership,
usufruct, use, etc.).
 Further, the in rem rights that are available are not absolute;
exceptions/limitations are provided in the exercise of the
rights, particularly when the object/resource is of common
interest for society.
2. Rights exercised against the whole world, including the
state
Attributes of in rem rights (property) …..ctd.

3. The kind of objects/things/interests over which

property (in rem rights) may be established are
many and this is determined by property laws of
different jurisdictions.

But their may be slight variation according to

the property rules of a particular jurisdiction.
Attributes of in rem rights (property) …..ctd.

4. The holder of property (in rem rights) can rely on

the state to enforce his right.
 The exercise of the right to the exclusion of all
other persons is based on state legal machinery;
not personal might or positive morality.
 Remedies available: possessory action, petitory
action, self-help, criminal sanction, & extra
contractual and unjust enrichment law.
5. In rem rights are not absolute
Attributes of in rem rights (property) …..ctd.
6. Types of in rem rights/property limited:- the menu of
rights called property/in rem rights are close-ended,
i.e., the doctrine of numerus clausus.
 Ownership
 Usufruct
 Use
 Servitude
 Mortgage
 Pledge
 Antichresis
 Right of recovery
 Right of pre-emption
 Right of promise of sale, and
 In connection with private use of land,
possessory/leasehold right
Attributes of in rem rights (property)
7. Should be obtained through legitimate means,
i.e., means recognized by law.
Trying to acquire property through illegitimate
ways prohibited by law is not protected by law.
E.g.: theft, violence, fraud, and other improper
means such as corruption and embezzlement.
 Property & Patrimony: Relationship & Distinction
 In jurisprudence rights of persons are classified into two:
 Patrimonial rights &
 Extra-patrimonial rights
 Extra-patrimonial rights: Rights which are not assessable in terms of money;
 These rights include:
 Rights of personality/fundamental rights and freedoms meant to
guarantee the inherent dignity and worth of human beings.
 Right to exercise power over/for others – parental/guardianship
powers; persons representing legally incorporated entities.
 Moral rights of authors
Property & Patrimony: Relationship & Distinction … ctd.

 Characteristically extra-patrimonial rights are:

• Extra-commercium,
• Have no market value/no monetary value,
• Inalienable/personal/perpetual (last for the life-time of the
right holder),
• Non-transferable,
• Imprescriptible,
• Unnoticeable (no need to signpost (eg. publicity through
registration) or prove being the holder of the right)
 Property & Patrimony: Relationship & Distinction … ctd.
 Patrimonial rights: rights of a person which have economic value.
 These are rights that arise from property, contractual and extra-
contractual relationships.
 Characteristically such rights are:-
• Assessable in terms of money/ have market value,
• Commercium (tradeable),
• Prescriptible,
• Alienable,
• Outlast the life of the right holder/transferable to the next
generation,
• Noticeable (particularly with regard to property rights)
Property & Patrimony: Relationship & Distinction … ctd.

Patrimonial rights are further classified into:

Real rights|in rem rights|iura in rem |Property

&
Personal rights|in personam rights |iura in personam

 These ( in rem rights & in personam rights) form the patrimony

of a person
 Patrimony refers to the totality/universality of a person’s rights
and obligations assessable in terms of money.
Property & Patrimony: Relationship & Distinction … ctd.

 So, property is an element/part of the patrimony of a person

 Comparisons:
Patrimony is indivisible; Property is divisible
Patrimony is inalienable (it is transferable only mortis
causa, not inter vivos); Property is alienable
In rem rights vs. In personam rights: Similarities & Distinctions
real rights |iura in rem personal rights | iura in personam
Property Credit

 Similarity
 Both are rights, i.e., a person’s legally protected interest against
another person;
 Both of them are rights of proprietary in nature;
 Both form the patrimony of a person;
 In both cases there are three elements: right-holder person(s);
duty-bearer person(s); object to which the right relates; and the
law (as the constitutive factor)
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

Differences:
1. Sources of the rights: where do they come from?
 In rem rights (property) arise from in rem (real) relation: that is,
the direct attribution of a thing to a person by law /the legally
protected enjoyment of the benefits of a thing to the exclusion
of all other persons in the world.
 So, to say that there is property, three elements recognized by
law have to exist: person(s) (active subject(s)) entitled to
enjoy the benefits of a thing (object) to the exclusion of all
other persons in the world (passive subjects).
 A critical/enacting factor for the existence of property/in rem
right is the law.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

1. Sources of the rights: where do they come from? …ctd.

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In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

1. Sources of the rights: where do they come from? …ctd.

 In personam rights (creditorship) arise from in personam (personal)
relation; that is,
 the direct relationship b/n persons arising from:
(1) a legally recognized agreement between them (voluntarily/consensually)
OR
(2) directly from law (involuntarily/extra-contractually)

 for the performance/satisfaction/fulfillment of a specified interest (through

action/inaction - to do, to give, or not to do)
 by one of the persons in the bilateral/trilateral relationship - THE DEBTOR
to the other person in the relationship – THE CREDITOR.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

1. Sources of the rights: where do they come from? …ctd.

 So, for an in personam right to be created three elements recognized by

law have to exist: person(s) (the creditor(s)) entitled to demand
specified performance from another person in the relationship
(debtor(s)).

 Again here, a critical/enacting factor for the existence of in personam

right (creditorship) is the law.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

1. Sources of the rights: where do they come from? …ctd.

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In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

2. the nature of the objects of the rights.

The nature of the objects of the rights is different:
-in case of in rem rights (property) -> thing;
-in case of in personam rights (credits) -> performance
by the duty-bearer
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

3. The nature and scope of protection of the rights.

 the scope of protection of the rights is different
› in rem rights (property) are erga omnes or absolute rights; protected against
all persons in the world; the duty-bearers are an unidentified multitude of
persons – passive subjects.
An in rem right holder has the legal protection to fully enjoy the sort of
benefits he has over the object without any interference from anyone.
› in personam rights are relative: they are valid vis-à-vis a particular
person/persons designated as debtor; all persons other than the debtor(s)
are not required to respect the interest of the right holder (creditor);
The right is to be demanded from the debtor, i.e., a specific person(s)
brought to the relationship by law or contract; in personam rights have an
identified active subject as duty-bearer
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

4. The nature of the obligation assumed by the duty-bearers

› In case of property -> negative (abstention/not interfering in the enjoyment of
the thing);
› In case of in personam rights -> performance (fulfilling the right) which may
require:
– taking positive measures (action):- acting as required under the obligation in force - doing
or giving
OR
– inaction (negative):- refraining from taking certain measure which she/he otherwise has
the right to do);
› So, in rem rights pose negative obligation only; in case of in personam rights it
could be positive or negative
› Even the nature of the negative obligations differ in the case of in rem rights
and in personam rights; the obligations in case of in personam rights impact the
patrimony of the duty bearer; the duty to refrain assumed in case of in rem
rights doesn’t have effect on the patrimony of the duty bearers.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

5. The nature or content/elements of the rights:

 In rem rights create immediate powers over a thing (these
powers are classified into two: self-regarding & others
regarding);
 In personam rights create immediate power over a person;
 Even in the case where in personam right involves a thing
(in the case of obligation to give), access to the thing is
through the debtor; in case of property, relation with the
thing is direct.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

5. The nature or content/elements of the rights …ctd.

If ‘A’ is holder of property right (e.g. owner) over bike, then the relationship between ‘A’
and the object (the bike) is direct; no intermediary person needed.

‘A’ (owner) bike

But, if ‘A’ buys a bike from ‘B’, there is no direct relationship between ‘A’ & the bike; ‘A’
can reach/have access to the bike only via ‘B’.

‘A’ (buyer) ‘B’ (seller) bike

So, the role of the duty-bearers is different: in case of in rem right, simply leaving the
right holder alone; in case of in personam rights, fulfilling the right.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

6. Requirement of a thing

 In rem rights exist only in relation to a thing/object; property

(right in rem) cannot exist without a specific thing; the thing
should exist in species
 In personam rights do not necessarily relate with a thing; even if
it involves a thing (as in the case of obligation to give), it can
relate to a future thing/non-existing thing; it should only be
identified in genus (described generally: in terms of quantity and
quality)
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

7. The right to follow the object of the right.

 In rem rights: the right to follow enables to reclaim the object of the
right in whoever hand it may be found. An owner, pledgee,
usufructuary, … if the object of his/her right slips and changes hands,
he/she can recover it in specie by tracing its whereabout.

 In personam rights: no right to follow the object of the right. In

personam rights are protected against specific/identified person(s).
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

8. Preferential treatment of in rem right (property) holders over in

personam right holders.

 In rem right holders are preferred over in personam right

holders.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

9. Type of rights (the menu of rights) to be created: the doctrine of

numerus clausus
 In rem rights: the doctrine of numerus clausus (limited list of rights)
is applicable; persons can acquire/have only those rights
recognized by the law as in rem right (property); individuals cannot
mint their own type of in rem right(s).
 In personam rights: the doctrine of numerus clausus is not
applicable; parties to an in personam relationship can create any
right (obligation) which they want by observing mandatory
provisions of the law; they can create customized right in personam
according to their own needs.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

10. Manner of extinction of rights

 In rem rights can be extinguished at anytime by abandoning the
object of the right;
 In personam rights: extinguishing the right by the right holder
(creditor) requires the consent of the debtor.
In rem rights vs. In personam rights: Similarities & Distinctions …ctd.

11. Enforcement of rights: remedies for violation

 In case of in rem rights (property): three layers of remedies:

– Property law remedies: these are the primary remedies for
infringement of in rem right:
› Possessory action (Art. 1149 CC.)
› Self-help (Art. 1148 CC.)
› Petitory action (e.g. in respect of ownership Art. 1206 CC.)
– Remedies under law of obligations (particularly extracontractual
liability and unjust enrichment law)
– Criminal law remedy, in series cases of breach of property rights
 In case of in personam rights: remedies are available only in
the realm of law of obligations; the forms of remedies are:
specific performance, cancellation, compensation.
END!