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Law Notes History of English Law Notes

Seisin Notes

Updated Seisin Notes

History of English Law Notes

History of English Law

Approximately 129 pages

History of English Law notes fully updated for recent exams at Cambridge, UK. The notes cover all the major History of English Law cases and so are perfect for anyone studying law in the UK or a great supplement for those doing legal history studies abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). These notes are formed from a reading of the cases and numerous textbooks and are vigorous and concise. Every major topic is dealt with in three ways:

A) Sho...

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‘Seisin’ and ‘the right’

‘Seisin’: Definition contested. No definitive answer. Must see what best fits surviving evidence. More or less resembles Roman possession – a factual relation with a corporeal thing.

+ Williams (1910): ‘To be seised of a thing is to be possessed thereof, the word seisin meaning possession’.

‘Right’: More or less a claim to ownership. In the developed common law ‘the right’ (the claim to the right – writ of entry) resembled Roman dominium, the ultimate legal title above which there is no other (though in contrast to dominium ‘the right’ was always relative). It was a relationship between a person and a thing.

Debate: But did ‘seisin’ and ‘the right’ always mean these things?

+ Maitland: Yes. Thought (late 19th c) they did not change definition. Felt that from beginning (once land could be subinfeudated) Ts had a right in rem, and Ls had a proprietary right to services and a future right of enjoyment of the land if the tenancy terminates. So Maitland said there was a concept very like ownership from early on as Ts could exercise their right against their lord and third parties. Says seisin is possession – ‘cardinal’ in our law.

In Maitland’s view, if his seisin was challenged by a 3rd party, D would be asserting a horizontal, abstract entitlement. L is only relevant as the dispute may end up in his court. This is about abstract ownership.

+ Milsom: No. Seisin, he argues, began not as a relationship between a person and a thing (it was not a possessory relationship between a person and their land), but as a relationship between two persons about a thing – a relationship between the lord and T about the land. Essentially it was just a contractual relationship which did not relate to the outside world. If the relationship broke down T could do nothing in relation to the land. The was a different understanding of T’s right to property. Argues that it is only when the common law intervened and created the real actions that T had an enforceable right in rem.

One had to say ‘I am seised of Blackacre by X’. The lord seises the T of the land, so seisin is a contractual relationship between lord and T – lord accepts the tenant. He argues seisin cannot exist in the abstract; it requires a lord who can confirm it. The lord accepts T as tenant of the land and T homages.

A claim ‘to the right’ would not be a claim to ownership; it would be a claim against the lord that the lord is obliged to seise the tenant of Blackacre. It is to claim the benefit of obligation binding the lord.

Milsom’s view is vertical. D is claiming the benefit of an obligation by the lord – the lord must recognise me, D, not T, as your tenant. T will make an opposing claim upwards (vertically) against L. Both are claiming the lord should accept them as the tenant. ‘Tenure is the crux’; the lord is intimately involved and not merely somebody with jurisdiction over land disputes. Double booked theatre ticket is Milsom’s analogy; same tickets, there has been a mistake, same...

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