Ownership: Salmond, Austin and Dias

Everyone knows what it is to own a thing until asked to define it. The difficulty is that an owner may be out of possession, may have let the thing on lease, may have mortgaged it and may be unable at this moment to do anything at all with it — and yet remain the owner. Any definition must explain how that is possible.

Ownership denotes the relationship between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against the entire world and not merely against specific persons.

The incidents of ownership, which is the list an answer must give:

1. The right to possess the thing owned.
2. The right to use or enjoy it, the right to manage it, the right to decide how it shall be used, and the right of income from it. But note the qualification: the right to possess is not a right stricto sensu, because these are in fact liberties — the owner has no duty towards others, may use the thing as he likes, and nobody may interfere with the enjoyment of his ownership.
3. The right to consume, destroy or alienate. The rights to consume and destroy are again straightforward liberties; the right to alienate — the right to transfer existing rights — involves the existence of a power. That single sentence is where Hohfeld's scheme and the law of property meet, and it is worth using in either question.
4. Indeterminate duration.
5. Residuary character.

Salmond contrasted the owner's rights with the lesser rights of the possessor and the encumbrancer by saying that the owner's rights are indeterminate and residuary in a way in which these other rights are not.

Ownership or property may be described accurately enough as the right to use or deal with some given subject, in a manner or to an extent which, though not unlimited, is indefinite.

Necessarily implied in that description is that the law will protect or relieve the owner against every disturbance of his right on the part of any other person; putting the same thing the other way, all other persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of the right.

Ownership is therefore a species of jus in rem: a right residing in a person, over or to a person or thing, availing against other persons universally or generally, and implying and resting exclusively upon obligations which are at once universal and negative.

After considering Salmond and the other jurists, Dias concluded that a person is owner of a thing when his interest will outlast the interests of other persons in the same thing. That is substantially the conclusion of many modern writers, who have variously described ownership as the residuary, the ultimate, or the most enduring interest.

The conclusion answers the difficulty this study opened with. An owner may be divested of his claims to such an extent that he is left with no immediate practical benefit, and he remains owner nonetheless — because his interest in the thing will outlast that of other persons, and because if he is not presently exercising any of his claims they will revive as soon as those vested in others have come to an end.

In the case of land and chattels, where the owner is not in possession, ownership amounts to a better right to obtain possession than that of the defendant — better in that it lasts longer.

Where the three agree. Dias speaks of the outlasting interest; Salmond of ownership as indeterminate in duration and residuary in nature. The two views substantially agree, and Austin's indefinite extent of dealing is the same idea approached from the side of the owner's liberty rather than from the side of duration.

| Division | The distinction | |---|---| | Corporeal and incorporeal | Corporeal ownership signifies ownership in a physical object, perceivable by the senses; incorporeal ownership is a right or interest, intangible and not perceivable by the senses. | | Sole and co-ownership | One individual owns; or more than one person owns. | | Trust and beneficial | The trustee bears responsibility for the benefit of others and has no right to beneficial enjoyment; the beneficiary has full rights to enjoy. The trustee's ownership is limited — he is merely an agent on whom the law has conferred the duty of administering property — while the beneficiary's is complete. Trusteeship may change hands; beneficial owners remain the same. There is no co-ownership in trust ownership; there can be in beneficial ownership. | | Legal and equitable | Legal ownership has its basis in common law; equitable ownership comes from equity's divergence from common law, and the distinction between them is very thin. | | Vested and contingent | Ownership is vested when the title is perfect, and is absolute; it is contingent when capable of being perfected on the fulfilment of a condition, and becomes vested when the condition is fulfilled. | | Absolute and limited | Ownership is absolute when possession, enjoyment and disposal are complete and vested without restriction, save such restriction as is imposed by law; limited ownership is subject to limitations of use, disposal or duration. |

• The definition question. Salmond's definition, the incidents with the liberty and power qualifications, then Dias's outlasting-interest formulation as the answer to the owner out of possession. A definition question that does not deal with the divested owner is only half answered.
• The comparison with possession, which is the standard paired question: ownership is a relation of right, possession a relation of fact; ownership is indeterminate and residuary, possession is the continuing exercise of a claim; ownership may exist without possession and possession without ownership, and the possessor is nevertheless presumed to be the owner until the contrary is proved.
• The bundle. Where the question is put in terms of property rather than ownership, the eight-fold bundle is the answer: the rights to possess, to use, to manage, to income, to the capital or increases in value, immunity from expropriation, the power of transmissibility, and the absence of a term — with the two obligations that go with them, the duty to forbear from harmful use and liability to have the thing taken in execution by creditors.