Chapter 1, Section 1 Flashcards
Possession and the Rule of Capture (24 cards)
What are the four incidents of ownership U.S. legal tradition recognizes?
- Possession, 2. Use, 3. Alienation, 4. Exclusion
According to U.S. legal tradition of the four incidents of ownership, define “Possession”.
Physical control over the object.
According to U.S. legal tradition of the four incidents of ownership, define “Use”.
Right to utilize the object.
According to U.S. legal tradition of the four incidents of ownership, define “Alienation”.
Right to transfer ownership (sale/gift).
According to U.S. legal tradition of the four incidents of ownership, define “Exclusion”.
Right to prevent others from entering or using.
What are the two types of property?
- Real Property and 2. Personal Property
Define Real Property.
Land and things permanently affixed (e.g. buildings).
Define Personal Property
All other property, including movable goods and some intangible interests (e.g., Intellectual Property (I.P.), contract rights.
What is the legal significance of possession in personal property law?
Possession can confer ownership or superior rights over others.
Define chattels
Another term for personal property. Extra Credit: o Derives from Anglo-French cattel, rooted in the historical value of cattle.
Define Conversion
Wrongful possession/destruction of personal property. Extra Credit: Also known as Trover
What is the most common remedy for Trover?
Payment of monetary damages.
Define Replevin
Action for return of wrongfully held property.
What is the most common remedy for Replevin?
Court order for return.
Define Trespass to Chattels
Action for damage to personal property.
What is the most common remedy for Trespass to Chattels?
Payment of monetary damages. Extra Credit: Minor interference (trespass) vs. complete deprivation (conversion).
what is the Blackletter rule for capture of wild animals
Property in wild animals is acquired by occupancy (actual possession), not by pursuit alone.
What are the elements of Occupancy?
Actual corporal possession, or
Mortal wounding + continued pursuit, or
Deprivation of natural liberty + certain control (e.g., nets, traps).
What is the first Possession Principle?
“First in time, first in right”: Priority goes to the person who first gained possession.
What is Constructive Possessoin?
(a “court-created fiction”) that treats a person as having possession of property even if they do not have physical control, because the circumstances give them a legally recognized right to possess it.
Ratione Soli
Landowners are treated as having possession of wild animals on their land (a legal fiction).
U.S. Rule on Constructive Possession Ratione Soli
Hunters on private land can take animals unless landowner posts No Trespassing/No Hunting signs.
What is the Tragedy of the Commons?
When a resource is commonly owned or unowned, individuals acting in their self-interest overconsume it. Under the rule of capture, this leads to depletion of the resource because no one has an incentive to conserve.
What is the rule of capture in property law?
The rule of capture grants ownership of a previously unowned resource (e.g., wild animal, oil, water) to the first person who captures or reduces it to possession, even if others were pursuing it. Until capture, the resource is unowned.
