Property Law

Chapter One: Property Rights

1.1 Meaning and Features of Property Rights
1.2 Relationship between Property Rights and
Objects of Property
1.3 Historical, Philosophical and Economic
Perspective of Property Rights
1.4 Rights in Personam and Rights in Rem
 1.1 Meaning and Features of Property Rights

Property refers to rights such as ownership,

possession, usufruct, use, and rights of
servitude, recovery, preemption and promise of
sale. In general, property law may be defined as a
branch of private law regulating relations
between persons with respect to things or
objects.

In lexical definition, property = thing (matter)

In legal definition, property = rights a person
have on a thing (matter)
Distinguishing property rights
•Patrimonial vs. extra-patrimonial classification

Patrimonial rights = rights which can be valued in terms

of money such as property rights, contractual rights,
extra-contractual rights
Extra-patrimonial rights = rights w/c can’t be expressed
in terms of money such as human rights (family, political,
religious etc…)
Patrimony = is the totality of unity of rights and
obligations (owns + owes) a person has on a certain thing.
The characteristics of patrimony are the following:
•Patrimony is inseparable from the person
•Every patrimony presupposes a person who is its holder
•Every person has a patrimony, but only one.
•Real rights vs personal rights classification

Real rights = it is a right that a person can

claim from anybody in the world

Personal rights = it is a right which results

from contractual agreement or extra-
contractual events. Such right can be
claimed only from the person who has
previous relationship.
 1.2 Relationship between Property Rights and Objects of
Property
Property Rights are legal entitlements that a person have acquired
by law over objects of property (things or materials)
Objects of property are things which make up the discussion of
property rights such as the following:
•Res communes= things which a person cant use exclusively
such as air and water etc…
•Res Nullies= things that have never been owned before. It can
be owned at any time, such as forests, minerals, fish stocks in
the sea etc…
•Res Derilectus= things which had owners before, and not
now. They are things whose owners are impossible to trace, or
the owner should have expressly shown disowning the thing.
In its legal usage, the term thing refers to some possible
or potential mater of rights and duties which, conceived
as a whole and apart from all others, can be separately
perceived by the senses. According to this definition, the
term may refer to;
• A thing, which is corporeal and tangible matter, which
has an organic or physical unity, for example a horse,
block of marble.
• A thing, which is corporeal and tangible, but consists
of specific things, for example, a flock of sheep, a
house.
• A thing, which is neither material/ corporeal/, nor
tangible but which is an element of wealth, for
example a copyright or a patent right, a claim for
payment of sum of money…etc.
Accordingly, under Ethiopian law, objects of property,
herein after called thing /good may refer to;
• Things /goods which have material existence such as a
car, an ox a house/ corporeal things/ (Art 1127), as well
as claims and rights contained in securities to bearer
which are incorporeal or intangible by nature but which
are assimilated to corporeal things (Art 1128) and
• Things which have no physical or material nature but
which are perceptible by senses for example natural
forces of economic value such as solar and wind powers
which are mastered and put to use by mankind (Art
1129)
Note: ‘goods’ and ‘things’ are used interchangeably in the
code to refer to the same concept (Articles 1126_1140).
 1.3 Historical, Philosophical and Economic Perspective of
Property Rights
1.3.1 Historical background of property rights
(Theories Regarding Origin Of Property)

•Positivist theory (utilitarianism).. things should be seen in light of

the benefits to human being. According to Jeremy Bentham, Property
and law are born together and die together. Before laws were made,
there was no property; take a way laws, and property ceases.

However, this theory is criticized on the ground that the state and
private property are the results of the same social and economic
forces and we can hardly say one is the creation of the other. John
Locke argues that the state is the result of a social contract in which
the society transferred some of their rights to the state for the purpose
of protection their rights including the right to property
•The Hegelian Theory..
a human person is merely an abstract unit of free will or
autonomy that does not have a concrete existence until that
will acts on the external word. The person must give its
freedom an external sphere in order to live as an idea. This
external sphere, capable of embodying the person’s
freedom, consists of the rest of the word, everything that is
distinct from the person.

From the need to embody the person's free will from the
abstract realm to the actual, Hegel concludes that ‘the
person becomes a real self only by engaging in a property
relationship with something external’.
Occupation (first possession) theory…
Property, both in lands and movables, originally
acquired by the first taker, which taking amounts to
declaration that he intends to appropriate the thing
to his own use, it remains in him, by the principle of
natural law, till such time as he does some other act
which shows his intention to abandon it; for then it
becomes, able to be appropriated by the next
occupant.

However, what become useless to one is useful to

another, who is ready to give something in exchange
that was equally desirable to the former. This
natural convenience introduced commercial traffic
and the reciprocal transfer of property by sale,
grant or conveyance; which may be considered as
the continuation of the original possession of the
first occupier or as an abandonment of the thing by
•Labor Or Entitlement Theory
Though the earth and all the creatures are common to all men, every
man has a property in his own person to which nobody has any right
to but himself. The labor of his body and the work of his hands, we
may say, are properly his. So where a person appropriates a land or
any one of its fruits, he has mixed his labor with, and joined to it,
such thing is his own and thereby makes it his property. This is
because he has removed it from the common state of nature and has
placed it in to something which is exclusively his own.

However, this theory has certain problems, first, in the absence of

prior theory of ownership, it is not self evident that one owns even
his/her own labor that is mixed with something, second, the labor
theory does not provide guidance in determining the scope of the
right that one establishes by mixing one’s labor with something else.
Robert Nozick described this problem as follows, “suppose I pour a
can of tomato juice in to the ocean: do I now own the sea?”
 1.3.2 Justification Theories of property rights
A) Occupation theory tries to justify the existence of
private property on the ground that the first occupier
should be rewarded and property acquired in such a
manner is ethically justifiable He who first reduces in
to possession of a piece of property has the best of
justifications for remaining in control, and hence the
institution.

B) Labor theory… private property is the result of individual

labor because industry (hard work) should be encouraged by
granting to a worker the ownership of the res, which is created
by his labor so that even greater productivity is achieved.
C) The Utilitarian theory… the function of the legislator/ state is to
maximize the sum of human felicity (Utility) or happiness, and
private property, which is the expectation of protection provided by
the state, is justifiable because it increases human felicity/ happiness.

D) Hegelian Theory- Property is a part of the personality of the

owner and the protections provided for property of the person are
protections for the person. This, thus, the existence of the person and
hence his/her property is just. Furthermore, some control of property
is essential for the proper development of personality.

The community has slowly evolved from status to contract, from

group holding to individual property. freedom liberty has grown in
the process and it is the control of property that makes men free.
However, the theory does not justify the present system, which
allows the concentration of property in a minority of the community.
E) Marxist Theory- According to the
communists, the history of all societies in
the world is the history of class struggles
between the slaves and freemen, feudal
lords and serfs or vassals, the bourgeoisie
and the proletariat.

These struggles are always between those

who control the means of production and
those who do not and hence that have to
depend on the former for their livelihoods
by selling their labor. These relations were
not always based on equal or even fair
exchange of labor and wages or other
form of payments.
The slave’s labor was freely
exploited, the serf /vassal was
forced to toil for a meager reward
and the products of his labor taken
away by the feudal lord and the
proletariat receives a wage that
does not cover the bare minimum of
his needs.
In effect private property served
and is serving as a means of
exploitation of the slave by the slave
owner, of the serf/vassal by the
landowner of the proletariat by the
 1.3.3 Economic perspectives of property rights
Classical economists such as Adam Smith and Karl Marx
generally recognize the importance of property rights in the
process of economic development, and modern mainstream
economics agree with such a recognition. A widely
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accepted explanation is that well-enforced property rights

provide incentives for individuals to participate in economic
activities, such as investment, innovation and trade, which
lead to a more efficient market.

This can be exemplified by the development of property

rights in Europe during the Middle Ages. During this epoch,
political power was fully placed in hand of kings and
hereditary monarchies, who often abused their power to
exploit producers, impose arbitrary taxes, or refuse to pay
their debts..
The lack of protection for property rights provided
little incentive for landowners and merchants to
invest in land, physical or human capital, or
technology. After the Civil War of 1642 and the
Glorious Revolution of 1688, shifts of political
power away from the Stuart monarchs led to
strengthening of property rights of both land and
capital owners.

Consequently, rapid economic development took

place, setting the stage for Industrial Revolution.
Property rights are also believed to lower
transaction costs by providing an efficient
resolution for conflicts over scarce resources.