Definition and Classification of Property

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DEFINITION AND CLASSIFICATION

OF PROPERTY

Property connotes many things and it is therefore difficult to define. “The

law of property”, according to Lawson, “attempts to answer a number of

questions about the relations of persons to things”.1

“Property” is used to signify things which are the subject matter of

ownership, e.g., tables, books, cars – these are classified as movable things,

or personal property. Land, on the other hand, is called real property.

Other “things” which are valuable, but which exist as concepts and not as

objects capable of being reduced to physical possession, such as corporate

stocks, bonds, patents and copyrights, are referred to as intangible per-

sonal property or choses in action.

Acontract involves a relationship between persons respecting a thing,

but its principal role lies in the enforcement of promises. Many other

relations between persons affecting things do not have anything to do

with promises. Contract primarily gives rise to a relationship which is in

personam, i.e., a relation between two persons; only the parties to the con-

tract can sue and be sued on it. All other persons are not affected and are,

therefore, excluded.

Property, on the other hand, denotes a right in rem. This means that it

gives rise to rights which are enforceable not only against the parties to the

transaction, but against the whole world.

The distinction between contractual and property rights becomes

blurred when a contract creates a right which can be transferred or

assigned. Such a right becomes an asset, which can be expressed in terms

of monetary value and is therefore protected against invasion by all other

persons.

Invasion of one’s person is protected by law against the whole world,

just as any right in rem, but the right to be free from tortious (negligent or

intentional) injury is not a proprietary right. This is simply because we do

not regard our own bodies as objects of property.

On the other hand, the right to be free from invasion of one’s things is

a right in rem and falls under the classification of property. When any

object of ownership is interfered with, a cause of action arises against the

tortfeasor.

1Introduction to Property, Oxford, 1958, p. 1.

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Property thus may connote (a) ownership as distinct from an object of

ownership. This is the sense in which the concept “property” is used in the

law of sale of goods, when it is provided that the property in ascertained

goods passes when there is a sale. Property can also mean (b) a right less

than ownership, as in the case of a bailee, when it is said that a bailee has

a special property in the goods bailed. Property, in the sense of objects

of ownership, comprises (c) corporal things capable of physical control

as well as (d) valuable rights which may not be capable of physical

possession.

CLASSIFICATION OF PROPERTY

UNDER THE COMMON LAW

(A) Corporeal/Incorporeal

Corporeal property comprises physical objects which can be touched, felt

and are visible, e.g., land, clothes, tables, potatoes. This is described in the

Civil Law as res corporales, i.e., physical things, and it is distinguished from

incorporeal property (or res incorporales).

Res incorporales is an abstract concept used to describe rights available

against persons generally. Incorporeal property has no physical existence;

it cannot be touched or felt; it exists only in the eyes of the law. Res incor-

porales are notional things and are therefore intangible, e.g., patents, copy-

rights, trademarks, rights over land, such as easements and profits à prendre

(or servitudes), and securities, leases and usufruct. Incorporeal things may

include legal obligations.

Under the Civil Law, ownership is described as dominium, which is

classified as res corporales. But the common law classification defines

ownership, which is an abstract concept, as incorporeal property.

(B) Movable /Immovable

The classification of movable and immovable property is rendered in the

civil law as res immobiles, also referred to as res soli (immovables), as dis-

tinct from res mobiles (movables).

Immovables

Immovable property refers to land and things underneath and attached to

it. It comprises:

(a) the earth’s surface,

Commonwealth Caribbean Land Law

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