Modern Problems Notes

Modern Problems

Reid considers the need for a difference between property and obligations as being based on a policy desire to obtain better protection for property rights instead of contractual rights.

Worthington argues that because the protections traditionally only allowed to property are now also more widely available there is now no real need to maintain the distinction.

Is everything we can deal with property?

• Body parts

There was an old case that stated it was not possible to own body parts. This was to prevent a trade in dead bodies. However it has been eroded as people realise that dead bodies can be useful.

Although the body itself is not property, once work has been done on it then it becomes property. Human medical specimens are property. (R v. Kelly)

The living human body cannot be property. It cannot be owned or possessed. A dead body can be property if it has acquired some attributes differentiating it from a mere body awaiting burial. (Yearworth)

Parts of a human corpse may be property if work has been done on them, as in R v. Kelly, and products of a living body may be property. Sperm can be property of the donor (Yearworth)

• Information

Information can be property, and use of information belonging to a trust is a breach of trust (Boardmann v. Phipps)

The policy arguments in favour of protecting confidential information are insufficient, the same aims could be achieved without making it property (Guardian Newspapers)

So long as there is no trespass then there is no property to be protected when a race is held and third party erects a structure to enable people to view the race without paying for entry (Victoria Park)

There is always a policy question: how much protection does this information deserve. Is it so important that it ought to be classed as property or is there a more sophisticated way to protect it.

Examination paper contents are not property, misappropriation of that information was not theft (Oxford v. Moss)

• Non-assignable rights

If a right is subject to a non-assignment clause then if it is assigned in beach then the owner of the right holds it on trust for the third party assignee (Linden Gardens)

A set of non assignable rights can be divided up between two parties by one party holding some of the rights on trust for the other (Don King v. Warren)

Propery rights, distinctions from obligations (personal)

There are a set of criteria which purportedly, and traditionally, distinguish property rights from mere personal obligations. But these criteria are becoming more blurred now.

1. Property rights are good against the world

In theory property rights are good against the world, and personal obligations only have effect between the particular parties.

However the bona fide purchaser for value has a property right but it is not good against the whole world. There is also a tort of inducing a breach of contract which can apply to any person who induces a breach of contract, it is not restricted to the parties.

But generally this distinction holds.

2. Property rights are assignable to third parties

But there is non assignable property which requires a complex arrangement of trust, and cannot be assigned at law. Also it is possible to assign the benefits of a contract, but not possible to assign an obligation to do something.

This distinction does not hold. Benefits are more akin to property rights

3. The right to proceeds or substitutions

The...

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