Fiche révision common law

Topic 1 : nature and protection of property rights

Property rights : rights over things. You do not sell a thing, you sell the rights to a thing.
who es entitled to use such things
how they are entitled such things

Different property rights : personal right (not binding to C) , property right, persistent right (both binding to C).

personal right : it is a right against aperson. B can bind A but not C.

Ex : A makes contractual promise to B to mow B’s land. A then gives his mower to C as a gift.
Solution : B has a personal right against A but not against C since it’s a personal right, and as such; not binding to C.

property right : right against a thing. Its is binding to C. B must focus on the thing rather then on the person. B’s property is prima faciebinding on the rest of the world. It is an exclusif right to B, and gives a duty for anybody no to interfere with B’s property right against a thing. B has an exclusif control over that thing.
B may have to show he has acquired a certain right by registrating his right, for example in Land registry. Therefore C will know that B has a pre-existing right over C.

persistent rights : it isa right against a right. It is binding to C. B does not need a particular thing or person. Instead B needs to show that C has aquired a right that depends on the right against which B has a right. The main rule is that if A has a charge with C, B just needs to show he has a pre existing right over A, binding to C (prima facie). B has a persistent right whenever he can show that A is under a dutyto B in relation to a specific thing.

How are property rights protected ?

The ownership in the common law system cannot be summoned directly : it is done indirectly. B will have to show that he has a property right over a thing, and that C is interfering with B’s thing, meaning he is in breach over the duty not to interfere with B’s property rights. C has hence committed a wrong :property rights are protected through the law of wrongs.

It is easy to defend, and is not direct since property right is a form of background right (B shall not come and say i have physical integrity, he will have to prove a breach ; B shall not say i own that thing, he will have to prove that C interfered with his property right).

Since C using B’s thing is an interference, C has no defenseagainst B and his action will always count as a wrong.

tort of trespass : C takes B’s thing, even if C acts innocently, in the mistake that he believes he is entitled to take the thing. B must have physical control.

tort of conversion : If C buys from A he does not commit the tort of trespass since B did not have physical control of the thing at the time C interfered. C takesdeliberately the thing for his own benefit and hence is preventing B from exercising his prima facie right

Costello v Chief Constable of Derbyshire 2001

Stolen car. A : original owner. X : thief. Mr Costello : possession. Police takes the car because they know it was stolen. The PACE of 1984 are allowed to cease a car if they believe it was stolen. The investigation is finished. Costellosues the police into tort of conversion : by keeping the car the police comitted the tort of conversion. Costello has to show that the police had a duty not to interfere.
Can costello show he is the owner ?

A may have a property right because he bought the car and can sue the police/ Mr Costello bases his property right because of his possession and can sue the police. The possession gives anindependent right to sue the police. To get a property right is whenever you take possession. It means that the thief also had a property right.
Mr Costello wins : it is possible for A to have a property right, for Mr C as well. Possession gives rise to a property right. Police has a property right for possession ! Why can’t the police say that ? Because costello had it first. If we apply…