1. Introduction
Friday, 25 March 2022
14:40
Reading
*Gretton & Steven chs 1, 2 and 32
Anderson ch 1
K G C Reid, The Law of Property in Scotland paras 1-6; 11-14; 16 [note this is
a reprint of vol 18 of the Stair Memorial Encyclopaedia and can also be
consulted in that form, including electronically on LexisNexis Butterworths]
R R M Paisley, Land Law pp 1-56
K Reid & R Zimmermann (eds), A History of Private Law in Scotland vol 1 pp
185-210 (for history and general intellectual background) [Oxford Scholarship
Online]
1. General
In Scotland property law is civilian (Roman), although complicated by a
long relationship with feudalism, which ended on 28 November 2004.
p2
o No civil code in Scotland unlike most roman law jurisdictions.
o Feudalism: land is held of the crown; not owned by individuals
absolutely p2
Recent years have seen it become increasingly statutory, particularly
land law. There is also a significant land reform agenda in Scotland.
o Beginning with Land Reform (Scotland) Act 2003; introduced the
right to roam
o Seeking to have land in more peoples hands
Property law is concerned with rights (jus, jura) in things (res).
2. Rights
Rights in things
Right directly in a thing (jus in rem). Usually called a real right. P2
o Property law deals with real rights whereas law of obligation deals with
personal rights
o Real right; enforceable against everyone
o Personal right; enforceable against only the person who is in obligation
to you
Real rights more powerful than personal rights and therefore they are
limited
Probably fixed list (numerus clausus):
,principal real right
ownership (dominium); owner can assert ownership against the world.
Ownership is the right to use, consume, and destroy.
Most important right p2
subordinate real rights (jura in re aliena); rights in someone else's property
lease of land/ immmoveable property(but not hire of moveables);
tenant unaffect if owner of the land lord sells as lease is a real (not
contractual) right meaning they can stay.
proper liferent (but not improper or trust liferent); unaffected if owner
sells.
Servitude; right to make limited use of neighbours land.
o Roman law also had negative servitudes which we do not have;
including not interfering with light. Scots law only has positive
servitude
real burden (negative but not affirmative); positive (maintain boundary
fence) or negative obligation affecting land (prohibition against trading).
o Negative real rights can be enforced against tenant
o Affirmative real rights only enforceable against the owner.
right in security; lender of money (mortgage etc) may want to have
security which can be house; improves chances of the lender being
paid as they can sell the house to recover losses.
Some of these have subdivisions; eg. Security right devides into
pledge, lien and standard security.
Rights against persons
Jus in personam, usually called a personal right (or relatively limited number
of persons).
Some examples:
right in contract; against other party to contract. if other party goes
insolvent then you lose money. Personal right which is only as good as
the person you seek to enforce it against.
right in delict; right is only against the person who committed the delict.
Can only sue that one person.
right in unjustified enrichment; right against other person (condictio
indebiti) to have goods returned to you if it is unjustifiably enriching the
other person.
right of a beneficiary under a trust; assets being held for persons
(beneficiaries) against the trustees. Beneficiary have right against
trustees; only enforceable against certain person or group of people.
Why does the difference matter?
Personal rights are enforceable against a particular person or determinate
group of people.
, Sue the group or person if something goes wrong
Real rights are enforceable against ‘the world’.
Sue persons who challenge your right to the thing.
Numerous clausus (fixed list)
Generally pay a price for having them (the price is publicity in land
registers; informing of the world); ownership has to be publicised.
3. Things (PROPERTY)
On a traditional (but not undisputed) analysis, things may incorporeal
as well as corporeal.
Corpus; corps; body; corporeal is tangible with physical presence
Incorporeal property has no physical presence.
Incorporeal property = (i) rights (both personal and real) + (ii) some odds and
ends, eg gases, electricity. And since one has rights in things, it follows that
one can have rights in rights (ie in incorporeal property).
Example. A has a lease over land belonging to B.
What right does B have in the land (corporeal property)? Real right
What right does A have in the land (corporeal property)? Subordinate
real right
What right does A have in the lease (incorporeal property)? Real right of
ownership of the Subordinate real right of lease.
Thus A's position can be expressed in this way: A has the real right of
ownership in the lease, which is itself a subordinate real right in the land. The
method of expressing A’s position will depend on which thing you are
concerned with (ie the land or the lease).
A lease is a real right. But personal rights are also incorporeal property.
The only right which, on this view, is not considered to be property is
ownership. Thus one can ‘own’ (in normal speech ‘have’) a contract or a right
in security, but to say that one owns ownership itself is meaningless.
There is also a second classification of things, into things heritable
(immoveable) and things moveable. Thus 4 classes of things:
Heritable = immoveable ; land or house
Moveable ; bike
(1) Corporeal heritable property; tangible, immoveable.
Land, and things which form part of land (partes soli) either naturally (eg
soil, minerals and stones) or by accession.
(2) Corporeal moveable property; tangible, moveable
, All other corporeal property.
(3) Incorporeal heritable property; intangible, immoveable property.
Two categories:
(i) ‘All rights connected with or affecting any (corporeal) heritable
subject’: Erskine II.2.5.; lease of land, liferent, standard security (mortgage of
land)
(ii) ‘Permanent’ rights not however connected with corporeal heritable
property. Eg;
title, coat of arms p11
rights which have a tract of future time (tractus futuri temporis);
pension, annuity (right to annual payment)
(4) Incorporeal moveable property; intangible, moveable property
All other incorporeal property; patent, shares in a company, right to sue
under a contract
Can anything be property? How about running water or the wind or body parts
or an Instagram account?
Complex; different approaches in different legal systems
Social media account; generally own contractual rights rather than the
account.
4. Patrimony (economic
Patrimony (sometimes ‘estate’) means the totality of assets and
liabilities held by a person, or by a person in a particular capacity.
Normally the rule is one person one patrimony.
But in the law of trusts a person who is a trustee has two patrimonies, a
trust patrimony and a private patrimony; trust patrimony is separate
from the private patrimony.
Trust assets are separate from trustees personal assets
If the trustee goes bankrupt the assets in the trust cannot be
touched by their creditors
Some commentators take the view that incorporeals cannot be owned, as
such (ie that there cannot be rights in rights). On this view one ‘holds’
personal rights or subordinate real rights, just as one ‘holds’ the paramount
real right of ownership.
This view argues you only own real thing. whether incorporeal can be a
person’s property or not, All agree however that the rights are always
included in someones patrimony
5. Ownership
Friday, 25 March 2022
14:40
Reading
*Gretton & Steven chs 1, 2 and 32
Anderson ch 1
K G C Reid, The Law of Property in Scotland paras 1-6; 11-14; 16 [note this is
a reprint of vol 18 of the Stair Memorial Encyclopaedia and can also be
consulted in that form, including electronically on LexisNexis Butterworths]
R R M Paisley, Land Law pp 1-56
K Reid & R Zimmermann (eds), A History of Private Law in Scotland vol 1 pp
185-210 (for history and general intellectual background) [Oxford Scholarship
Online]
1. General
In Scotland property law is civilian (Roman), although complicated by a
long relationship with feudalism, which ended on 28 November 2004.
p2
o No civil code in Scotland unlike most roman law jurisdictions.
o Feudalism: land is held of the crown; not owned by individuals
absolutely p2
Recent years have seen it become increasingly statutory, particularly
land law. There is also a significant land reform agenda in Scotland.
o Beginning with Land Reform (Scotland) Act 2003; introduced the
right to roam
o Seeking to have land in more peoples hands
Property law is concerned with rights (jus, jura) in things (res).
2. Rights
Rights in things
Right directly in a thing (jus in rem). Usually called a real right. P2
o Property law deals with real rights whereas law of obligation deals with
personal rights
o Real right; enforceable against everyone
o Personal right; enforceable against only the person who is in obligation
to you
Real rights more powerful than personal rights and therefore they are
limited
Probably fixed list (numerus clausus):
,principal real right
ownership (dominium); owner can assert ownership against the world.
Ownership is the right to use, consume, and destroy.
Most important right p2
subordinate real rights (jura in re aliena); rights in someone else's property
lease of land/ immmoveable property(but not hire of moveables);
tenant unaffect if owner of the land lord sells as lease is a real (not
contractual) right meaning they can stay.
proper liferent (but not improper or trust liferent); unaffected if owner
sells.
Servitude; right to make limited use of neighbours land.
o Roman law also had negative servitudes which we do not have;
including not interfering with light. Scots law only has positive
servitude
real burden (negative but not affirmative); positive (maintain boundary
fence) or negative obligation affecting land (prohibition against trading).
o Negative real rights can be enforced against tenant
o Affirmative real rights only enforceable against the owner.
right in security; lender of money (mortgage etc) may want to have
security which can be house; improves chances of the lender being
paid as they can sell the house to recover losses.
Some of these have subdivisions; eg. Security right devides into
pledge, lien and standard security.
Rights against persons
Jus in personam, usually called a personal right (or relatively limited number
of persons).
Some examples:
right in contract; against other party to contract. if other party goes
insolvent then you lose money. Personal right which is only as good as
the person you seek to enforce it against.
right in delict; right is only against the person who committed the delict.
Can only sue that one person.
right in unjustified enrichment; right against other person (condictio
indebiti) to have goods returned to you if it is unjustifiably enriching the
other person.
right of a beneficiary under a trust; assets being held for persons
(beneficiaries) against the trustees. Beneficiary have right against
trustees; only enforceable against certain person or group of people.
Why does the difference matter?
Personal rights are enforceable against a particular person or determinate
group of people.
, Sue the group or person if something goes wrong
Real rights are enforceable against ‘the world’.
Sue persons who challenge your right to the thing.
Numerous clausus (fixed list)
Generally pay a price for having them (the price is publicity in land
registers; informing of the world); ownership has to be publicised.
3. Things (PROPERTY)
On a traditional (but not undisputed) analysis, things may incorporeal
as well as corporeal.
Corpus; corps; body; corporeal is tangible with physical presence
Incorporeal property has no physical presence.
Incorporeal property = (i) rights (both personal and real) + (ii) some odds and
ends, eg gases, electricity. And since one has rights in things, it follows that
one can have rights in rights (ie in incorporeal property).
Example. A has a lease over land belonging to B.
What right does B have in the land (corporeal property)? Real right
What right does A have in the land (corporeal property)? Subordinate
real right
What right does A have in the lease (incorporeal property)? Real right of
ownership of the Subordinate real right of lease.
Thus A's position can be expressed in this way: A has the real right of
ownership in the lease, which is itself a subordinate real right in the land. The
method of expressing A’s position will depend on which thing you are
concerned with (ie the land or the lease).
A lease is a real right. But personal rights are also incorporeal property.
The only right which, on this view, is not considered to be property is
ownership. Thus one can ‘own’ (in normal speech ‘have’) a contract or a right
in security, but to say that one owns ownership itself is meaningless.
There is also a second classification of things, into things heritable
(immoveable) and things moveable. Thus 4 classes of things:
Heritable = immoveable ; land or house
Moveable ; bike
(1) Corporeal heritable property; tangible, immoveable.
Land, and things which form part of land (partes soli) either naturally (eg
soil, minerals and stones) or by accession.
(2) Corporeal moveable property; tangible, moveable
, All other corporeal property.
(3) Incorporeal heritable property; intangible, immoveable property.
Two categories:
(i) ‘All rights connected with or affecting any (corporeal) heritable
subject’: Erskine II.2.5.; lease of land, liferent, standard security (mortgage of
land)
(ii) ‘Permanent’ rights not however connected with corporeal heritable
property. Eg;
title, coat of arms p11
rights which have a tract of future time (tractus futuri temporis);
pension, annuity (right to annual payment)
(4) Incorporeal moveable property; intangible, moveable property
All other incorporeal property; patent, shares in a company, right to sue
under a contract
Can anything be property? How about running water or the wind or body parts
or an Instagram account?
Complex; different approaches in different legal systems
Social media account; generally own contractual rights rather than the
account.
4. Patrimony (economic
Patrimony (sometimes ‘estate’) means the totality of assets and
liabilities held by a person, or by a person in a particular capacity.
Normally the rule is one person one patrimony.
But in the law of trusts a person who is a trustee has two patrimonies, a
trust patrimony and a private patrimony; trust patrimony is separate
from the private patrimony.
Trust assets are separate from trustees personal assets
If the trustee goes bankrupt the assets in the trust cannot be
touched by their creditors
Some commentators take the view that incorporeals cannot be owned, as
such (ie that there cannot be rights in rights). On this view one ‘holds’
personal rights or subordinate real rights, just as one ‘holds’ the paramount
real right of ownership.
This view argues you only own real thing. whether incorporeal can be a
person’s property or not, All agree however that the rights are always
included in someones patrimony
5. Ownership
