The term property is derived from a French word ‘properties’ and a Latin equivalent word ‘proprietary’ which literally provides a meaning of a thing or an object owned by an individual to which he/she has a complete right or ownership of the possessions[1]. The article is a detailed discussion of concept of property.
The term property, in general, could be defined as both, living and non-living possessions owned by an individual or simply the term property denotes the objects which have the ownership rights of a person expanded. The property not only includes tangible objects (the objects which could be seen or felt) such as money, jewellery or ornaments, cars etc., but also intangible goods (which cannot be touched or be seen) such as shares, lands owned, debts, goodwill etc. or possession which generate income or wealth for a person in future or present whenever needed.
The concept of law of property according to Salmond was defined or distinguished the law of proprietary right ‘in personam’ or ‘in rem’ as the law of obligation of a person i.e. according to him the property is a lease or freehold land owned by a person under his/ her name, also the property of the person would include copyright or the patent rights an individual has over any object, but the debt which a person has against the other or within a contract signed is not considered as a property of a person. Salmond has defined property into three different types which are, legal rights, Corporeal property, and intellectual rights. The legal rights are where a person is entitled over the materials objects legally or under the law, these rights include the proprietary as well as the personal rights, say if a person possessing a house under his name shall have the legal right of the property along with the ownership. The property or the object which can be seen or is real is defined under the corporeal property such as chattel, land etc. The intellectual rights could be the proprietary rights of the person which he/she owns but not the personal rights such as the right to reputation or right to live.
What is a patent search and how to do it?
According to John Austin, he states that the law of property or property, in general, is which a person has over the proprietary and personal rights under the law, or he defines the property as an ‘enjoyment’ which a person holds say it land, money, shares, chattel, or even the rights which he/she has over the property or himself. When it comes to both John Hobbes and Jeremy Bentham, they define the law of property as an individual’s right or a legal right which he/she has under the law.
The concept of property is further divided into two, the corporeal and the incorporeal property. The corporeal property is the kind of property which consists of material objects which can be touched or felt (tangible), under which the person owning an object is the owner of the property i.e., say if a person who owns a car (tangible object) under his name or which he legally owns is known to be termed as his property and he has full rights on the said property which here is the car. The incorporeal property, on the other hand, is the right where the proprietary right of an individual is distinguished in relation to the immaterial object and the material objects. Here, the material objects are all the objects which are physical or real whereas the immaterial objects are the objects or are the subject- matter of the right over something i.e., the right a person has over the work they have done or which was the outcome of their skill or hard work or simply the ownership a person has over the copyrights, patents or the goodwill he/she was given.
Table of Contents
Concept of Property defined by various Jurists: In detail
As observed considering the origin of a state or simply the property, in the beginning, was considered as a corporeal object, with a pass of time the jurists from the contract theory or from the observance of the theory wanted to expand the scope of the meaning of the term ‘property’, according to jurists it was observed that both, law and the state, came into being for the sole reason of protecting one’s property from the other, through which the authority in the place is providing all the necessary development, security, protection for the individuals from the other for the purpose of development of the society[2].
There were several views or definitions provided by various jurists over the term property and the definition respectively which are as follows:
According to John Salmond, the concept of both the right in rem and right in personam is being distinguished, here the right in rem could simply be defined as a right an individual or a person has against the world as a whole, whereas the right in personam, on the other hand, is the right an individual possesses against a particular individual, which in sense includes the leasehold or freehold of the land, copyrights and patent rights a person holds for the object invented or ID being brought to public notice, are all considered as a property which a person owns according to Salmond, whereas it was also observed that the shares or debts or benefit or considerations arising out of a contract is not to be considered within the concept of property. The property has further been defined by John Salmond based on the following:
Legal Rights
The right or a legal right is the right which a person has over the objects or possession he is possessing legally, which could include the both incorporeal as well as the material objects. The definition based on the property pertaining to legal rights was also used by both William Blackstone as well as Thomas Hobbes in this sense.
Corporeal Property
The corporeal objects in the case of property of an individual are considered to be the objects which the person has a right of ownership or possession of the material object in the case such as the watch, horse, ownership of land, any piece of jewellery, chattel etc., here the debts or shares are not considered as a property or a possession of the person
Proprietary Rights
The proprietary rights do not include all rights under the case i.e., the person has rights over the land or property he/ she owns or has a right over the debts or shares he/ she has but not on the rights such as the right to reputation, right to speech or right to life etc. these are not considered as a person’s or an individual’s rights.
Whereas, the definition according to John Austin includes the personal rights or the servitudes to which legally they are entitled as observed above including the enjoyments a person possesses or holds, therefore it simply implies that according to Austin the property is the combination of both enjoyment, as well as the legal or personal legal rights an individual gets to enjoy i.e., say a person is possessing a land, this land here, is considered to be legally his/hers as it’s registered under the name of the person. The same person has the right to profess his job or his dream job legally, say the person wanted to do a real-estate job by owning a few assets such that the person is trying to start his profession as a real-estate agent. Hence, in the above case according to Austin’s definition, the person has the property under his name after his legally registering it or the person simply enjoys the possession he owns, along with the right of professing his job or career he chose to opt which also is being considered as a property.
The influence or impact of John Locke on the development of the property laws followed by the land laws was enormous, he regarded the ordinary views over the right to property as beyond the prevailing system or predominant system. Therefore, the development of property rights or the areas pertaining to that of property was observed to grow after John Locke’s theory, this theory of rights was proposed in the Second Treatise of Government in 1690. This theory permits people or individuals to exercise their control of rights over certain things in the world such as material resources and land, this theory simply provides the rightfulness or legality of the private property right to that of an individual. Locke’s theory of property rights has two parts, the first part being the part which provides the original legacy is valid whereas the exclusion in the case is grounded or not considered, the second part talks about the validity of both exclusion and original appropriation or legacy in the case.
The issue pertaining to private property rights, it was observed from the view of Thomas Hobbes who supported the use of legal rights or the definition of legal rights provided by John Salmond, also stated that rule or the governance protecting these rights or the private property is to be framed by the political authority, which later was followed by the view of David Hume that the property right rules are the evolved from a mutual acknowledgement of the individuals in the society or this rights are the pre-legal rules or conventions which acquire the legality[3].
The Supreme Court’s view over the term Property
Article 19(1)(f) of the Indian Constitution which later was omitted provided that “the rights which by themselves and taken independently, are capable of being acquired, held or disposed of as property”.
Considering the case of Chiranjit Lal Choudhari v. Union of India[4], where, in case, the validity of the provision or act (The Sholapur Spinning and Weaving Company (Emergency Provision) Act, 1950) passed by the legislature, and was being challenged by the petitioner on the grounds of infringement of Articles 14, 19(1)(f) and 31 of the Indian Constitution. The Supreme Court simply provided that the court or the legislature has the authority to pass a provision with respect to a single company class for protecting any particular danger from the said class or company in the case. Therefore, the provisions could be extended to the proprietary rights of the company and its employees and the government has authority over the operation of the company. A case, Cormier, HRE v. Lakshmindra[5], provided a definition to the term property under Article 31 of the Indian Constitution by stating that property could be understood or viewed as a corporeal, enjoyment or as a private or an original appropriation in a legal sense of the rights prescribed for the owner or the person owning land or a property or possessing any of the objects provided under the municipal laws with regard to the enjoyment and use of the things or objects to exclusion of all other respectively.
It was recently held by the Supreme Court of the country that an individual residing, or a citizen has a right to own private property in the country, which is a human right or the right which every individual living has. The state or any higher authority cannot occupy the provided land of a person or individual without a particular notice or procedure prescribed by law, which was provided in reference to the case of State of Haryana v. Mukesh Kumar[6] in which the court held that the property owned by an individual is not just a statutory or a constitutional right but also is a human right. Considering in 1967, the right to property under Article 31 of the Indian Constitution was regarded as the fundamental right, after the 44th Constitutional Amendment in 1978, it provided that the right to property is ceased to be considered a fundamental right and was made a constitutional right under Article 300(A) of the Indian Constitution.
https://effectivelaws.com/dimensions-of-ipr-in-cyberspace/
Classification of Property and Intellectual Property
The concept of property or property is further classified into two types:
- Corporeal property – the corporeal property is the property which is in the form of material objects i.e., an intangible object which is owned by a person or an individual. Here, the right of the person or the owner over the property is limited only for the purpose of use of the object. Objects such as a car, watch, bike, a house etc. are considered to be corporeal property owned by an individual. This type of property is further divided into two types, which are as follows:
- Movable property – the property of an individual or owned by the individual in the case which can be easily moved from one place to the other by the help of a person, the movable objects or property under which could be a car, bike, ornament, chattels etc.
- Immovable property – any property or a tangible property which cannot be moved from one place to the other as that of the movable property and which is attached permanently to the earth is referred to as the immovable property. The properties such as land, walls, or a piece of land could be considered as examples of immovable properties.
- Real property – real property is the property owned by a person or is legally recognised by the law.
- Personal property – personal property is the property which is of the individual including all the proprietary rights of an individual be it right in personam or right in rem.
- Incorporeal Property – incorporeal property is also referred to as conventional or intellectual property, which includes the valuable interests of an individual which are safeguarded before the eyes of the law, this type of property is intangible in nature i.e. which cannot be sensed or touched, the properties such as the trademarks, copyrights or the patent rights owned could be considered as examples of the incorporeal property. The incorporeal property d further divided into two types, which are as follows:
- Jura in re propria – the proprietary rights of a person could be in the form both material as well as non-material objects, the material objects are all the physical objects, whereas the non-material objects are all the rights attached to the physical objects or simply objects which are owned by the person. It is simply the right which a person acquires due to his/ her hard work, labour or skill, and the rights such as copyrights, patent rights or commercial goodwill are some of the rights in re propria.
- Jura in re aliena – the rights are also called encumbrances, which include the ownership of the object or property which is of one person but is in the hands of the other for a particular motive, the rights of a person over the lease, or the personal rights or servitude a person has, trusts, securities in the form of material objects for the future purpose are all referred to as the right in re aliena.
The intellectual is classified or divided into various types, which are as follows:
Patent – the patent under the intellectual property is a right which is granted for an invention done by a person or a group of persons which is the product of the hard work, skill, labour etc. for the result of a particular object which is being invented or which acts as a solution for any specific problem, if a person or anybody wanting for a patent right over the object or solution invented the information related to the same is to be reminded confidential i.e. it should not be disclosed to any other person or to the public. This patent once obtained is in force or is provided for a term of 20 years.
Trademark – the trademark is a sign provided for the goods or products produced by a company i.e. the trademark is an exclusive mark which is provided for a product manufactured by a company, it differs from one company to the other enabling the customer or the consumer to identify the product or brand.
Trade Secret – Trade secret is a strategy or technique which is adopted by the person owning a business or the owner of the business, which may be confidential business information with an edge in the market globally with the commodity or the product which the company or business deals with. This helps the business to run smoothly, i.e. the trade secret is essential for the business or the information or techniques of the products are to be confidential if any person involved in the production is using or providing the information or strategy of the product to the other, he/ she shall be held guilty for unfair trade practice.
Copyright – The copyright is the right which is available or is provided to the creators or the persons involved with creating any artistic, dramatic, literary, musical, artistic, sound recording or the producers of a particular cinematography or any such acts, this is or could be considered as a unique intellectual property available for the creator who has a right to decide if their work or their original work be used by another person. The copyright could be in the form of symbols on a particular product or on a label of a product.
Geographical Indicators (GI) – the geographical indicators are used for a specific product with a specific location or a geographical origin, which possesses qualities to the product based on its place of origin. The gi sign provides the identity of a particular product in a given quality, specific characteristics, place or reputation.
Real Estate Investment: Legal Considerations for Property Buyers
Conclusion
The property is the possession of an individual. It is very important to draw that the property is the result of an individual’s hard work. The property as observed could be concluded to be both personal as the proprietary right of an individual as put forth by various jurists, a person be it financially stable or not as financially stable owns something or the other, could be an expensive car or a car for daily use for the ends to meet, but it still is an individual’s hard work or a possession they own irrespective of the cost or the possession’s status or the way one uses it. It could also be provided that, even a piece object they own is considered as their property if any unfair use of the same by the other is considered as an offence against the person’s property.
Recommendation
Considering the property especially land a person is fixed to buy the land irrespective of the area it is being used as, agricultural land nowadays is being bought and is turned into a fancy apartment or a gated community in urban areas, agriculture is not as important as buying a and is for certain individuals. Which might be due to the increase in employment opportunities, population growth or the migration of people from rural to urban areas. The demand for buying lands or agricultural lands is to be considered, due to the fact that the agriculture of farming land is as important as destroying proper land for development or construction purposes.
REFERENCES
[1] William T. Gallagher (ed.), Intellectual Property (Taylor & Francis pub, 2017).
[2] Theories on the origin of the state, available at: https://www.politicalsciencenotes.com/essay/state/theories-on-the-origin-of-state-essay-theories-political-science/1513 (last visited on December 24, 2020).
[3] Property Rights, Lockean, available at: https://www.csus.edu/faculty/s/kyle.swan/docs/lockean%20property%20rights-revised.pdf (Last visited on December 24, 2020).
[4] 1950 SCR 869.
[5] AIR 1954 SC 282.
[6] (2009) 154 PLR 753.
BY G.N.V.N.S GAMYA SREE | SYMBIOSIS LAW SCHOOL, HYDERABAD