In this article, we shall study the subject matter of ownership and the modes of acquisition of ownership.
The Subject Matter of Ownership:
The main subject-matter of ownership consists of a material object, such as land and chattels. But ownership is by no means limited to things of this category. A man’s wealth1 may consist not only of his land and goods but of such things as interests in the land of other people, debts due to him by his debtors, shares in companies, patents, copyrights, and his interests in trust funds. None of these are materials or physical things. They are in fact nothing other than right i.e. right to recover the debt from the debtor, the rights of a shareholder under company law, the right of exclusive exploitation of the patent or copyright, and the right to be paid out of the trust fund.
According to Salmond besides material objects, the right may also be the subject-matter of ownership through a man. From this point of view, many rights cannot be considered as the subject-matter of ownership. For example, one has a right of speech or right of reputation but it is never said that he owns these rights, nor can he alienate them. It must also be stated that though material objects from the subject-matter of ownership but there are certain exceptions to this general observation. For instance, wild animals living in forests cannot be owned. Likewise, since slavery has now been abolished, living persons cannot form the subject matter of ownership. Again, the air, the sea, the sun, the moon, the star, corpses, etc. cannot be owned.
From the above discussion, we can conclude that a man’s wealth consists of lands and goods; these are material objects of ownership. But his wealth also consists of interests in other people’s lands, debts due to him, shares in companies, patents, copyrights, etc. These are not material objects or physical things. They are rights. We shall see the subject-matter of ownership as “owning of things ’’ in the sense of both owning of material objects and also rights. Precisely what things in the wise sense can form the subject-matter of ownership will depend upon the rules of a given system of law. Whether ownership, in the sense of individual ownership, is at all ethically justified and whether state or corporate ownership gives rise to a managerial cadre possessing very much the same powers as owners and having the same defects are not the subject-matter of study in jurisprudence. But the trend seems to be to restrict or burden ownership in social interest.
Modes of Acquiring Ownership:
There are various modes of acquiring ownership over a thing. The ancient Roman and Hindu jurists have given the following modes of acquisition of ownership.
- Inheritance
- Gain
- Purchase
- Conquest
- Application of wealth
- Employment, and
- Acceptance of gift form proper persons.
Many of these modes of acquisition of ownership have been well recognized and some of them exist in a modified form even today. We shall study those methods applicable in modern days. According to Salmond, basically a person is said to acquire ownership in two ways:
- By operation of law, or
- By reason of some act or event.
In modem times the chief modes of acquisition of ownership may be either original or derivative
Original Acquisition:
This mode of acquisition of ownership is said to have taken place when ownership is acquired by reason of some act on part of the acquirer or event. It is of three types, viz.
- Absolute
- Accessory, and
- Extinctive
Absolute Acquisition:
When things are acquired which have not or have never had an owner “ers nullius”. Romans termed them as cases of absolute original acquisition. Manu has termed this mode of acquisition as Pratigraha. The type of absolute ownership is acquired in two ways: occupatio and specificatio.
Occupatio:
“Occupatio” in Roman means taking possession. If a thing is without owner, anyone is at liberty to take and keep it; he makes it his own by the very act of taking possession. Manu, a celebrated jurist in ancient India, has also given a similar view. He said that the first strike of an arrow to prey becomes the owner of it. The person taking possession must be able to show by some such act or fact that the previous owner really intended to divest himself at his ownership. Occupatio was considered as the original mode of acquiring all ownership.
A thing might be without owner because that thing was never possessed by anybody or because somebody who before owned it
- had voluntarily relinquished or abandoned it,
- had thrown it away or had given up exercising the rights of an owner.
Examples of Absolute Ownership by Occupatio:
- Undomesticated animals as long as they have their natural freedom are considered as without an owner.
- If the caged bird escapes from its confinement, the owner’s right ceases, until he can catch and confine it again. If anybody else catches it while free, he is entitled to keep it as his own. The previous owner cannot take it from him.
- The man who can catch a hare, may keep it and cook it. And this, even if he caught it in his neighobour’s land, where he had no right to go. In such a case he is liable to punishment for his poaching in neighbour’s land but was not required to restore the hare to the neighbor.
game - Treasures or valuable which had been concealed so long that none could tell whom they belonged, considered as being without an owner. If a man found such treasures, on his own land whether accidentally or by searching for them, was entitled to make them his own. It is to be noted that he is not allowed to search for them on his neighbour’s land. In such a situation that would be a gross violation of his neighbour’s rights. If he explored the lands of another for this purpose, he could lay claim to anything that he found. But if he was in anybody’s land for other purposes and chanced while there to come upon such a hidden treasure, he could keep half of it for himself and the other half going to the owner of the land.
- In England, hidden treasure belongs to the crown whereas under Roman law; it is equally divided between the finder and the owner of the place where it was found.
Specificatio:
Specificatio in Roman means making of new species or kind of product. For e.g. a man making cloth from another man’s wool, or bread from another man’s grain, a sculptor making statute out of clay collected from other person’s land, etc. In such acquisition of ownership, the material belonging to one person is given a new shape by another person. Thus the right of ownership was acquired in something which was previously without an owner. But there are cases in which a thing that had an owner passed without his consent into the ownership of another person. Now in such acquisitions, there are two rights involved: first the right of the owner of the material and the second the right of the manufacturer. There was a difference of opinion between two great schools of jurists. The Sabinian School maintained that the owner of the material was entitled for ownership, whereas the Proculian School maintains that the ownership belonged to the manufacturer. The main point, however, with regard to the principle of specifictatio is that it regards ownership of a thing as a result of individual labour.
Accessory:
When the ownership of property is acquired by way of accession to some existing property, then the acquisition of ownership is called accessory acquisition. Examples are the produce of lands or animals or fruits of trees. Manu has termed this mode of acquisition as Prayog. It was immaterial to see which party made the union; the previous owner of the principal thing, however, became the owner of the new whole, while the owner of the accession lost his right of property and could only claim compensation for his loss. Let us understand the case, by the following examples:
- X owned a piece of cloth. Y made embroidery on that cloth using his own blue thread. In this case, embroidery with blue thread is an accession to the principal thing the cloth. Now X, the owner of the cloth (principal thing) is the owner of the cloth after accession. While Y has lost is ownership of the thread.
- A man erected a building on another man’s land acting in good faith, believing the land to be his own i.e. he believed that the title was in his own name. In the judicial decision, it was proved that the title was defective. In this case, the land is the principal thing and the erected building is accession. Thus the man erecting building loses his ownership. The owner of the land is the owner of the building. This rule is applicable when the structure so erected is fixed and permanent and cannot be easily detached from the soil (res soli). If the structure is demolished, the materials of which the structure is composed, ceased to have any close connection with the soil, they were no longer “res soli” and could be claimed by the erector of the building.
Extinctive
When ownership is acquired by a person by some act on his part, which destroys the title of the previous owner, it is called extinctive acquisition. For instance, the acquisition of ownership by prescription is extinctive acquisition. There may be acquisitive prescription in which, after the expiration of the necessary period, the law gives to the adverse possessor a full legal title. In India, adverse possession by a person of the land of another for 12 years extinguishes the ownership of the previous owner and the person being such adverse possession becomes the owner.
Derivative Acquisition:
A person is said to acquire derivately when he accepts a conveyance of title from a previous owner. This type o mode may include the acquisition of ownership by inheritance – intestate and testamentary, and transfer inter-vivos-purchase, acceptance of gift, etc.
Acquisition of ownership by derivative method of different types of property can be deemed to be complete and effective only when the formalities laid down therein in concerned statute are complied with accordingly. In India, these formalities may be found in the Transfer of Property Act, 1882 “for the transfer of immovable property”, the Sale of Goods Act, 1930 “for the transfer of movable property”, the Partnership Act, 1932 “for the transfer of firm property”, the Companies Act, 1956 “for the transfer of company property”, the Registration Act, 1908, and many other acts.
For example when a gift of an immovable property is made, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. In case of a gift of movable property, transfer may be effected either by a registered instrument signed as aforesaid or by delivery of possession.