JURISPRUDENCE

               Characteristics of Ownership

     The term ownership is emerged from the word 'own' which means "to have or to
hold a thing". One who holds a thing as his own is called owner and will have the right
of ownership over it. Therefore, the term ownership literary means “legitimate and
absolute right of a person over a thing or an object having title".

Definition of Ownership: According to Austin: "Ownership means right which avails

against everyone who is subject to the law conferring the right to put thing to user of
indefinite nature." Full ownership is defined as " a right indefinite in point of user, 
unrestricted in point of  disposition and unlimited in point of duration" it is a right in
rem which is available against the whole world.

Characteristics of ownership:

1) Right to possess -
    Possession means "physical control over a thing or an object. To constitute
ownership the owner must be entitled to the possession of the property.

2) Right to possess the thing, which he owns: This right in strict sense. He may not
have necessarily the possession for he may have been wrongfully deprived of it or
may have voluntarily divested himself of it.

3) Right to use and enjoy:The owner of the property has a right to use and enjoy the
property he owns subject to certain restrictions / regulations by law/state. These are
liberties. The right to manage it for example: the right to decide how it shall be used
and the right to income from it. These are in fact liberties; the owner has liberties to
use the thing. I.e. he is under no duty not to use it in contract with other who is
under duty not to use it or interfere with it. 
4) Right to Consume, destroy (liberties) or alienate:
It means right to dispose off or gift or Mortgage or lease etc. The right of owner over
property is absolute, which includes the right of alienation.  The right to consume and
to destroy is straightforward liberties.5) Perpetual right / Indeterminate Duration: 
 The owner of the property has perpetual right or the right for unlimited period over
the property. Those who are not owners may be entitled to possess or use the thing
but the period for which they are so entitled is a limited duration.  But in case of
Ownership, it is of an indeterminate duration. Thus the interest of Bailee or
lessee comes to an end when the period of bailment or lease is over. But the owner's
interest is perpetual and does not terminate even in owner's death, because in that
case the property will go to his legal hairs.

6) Actual right :The right of owner over the property is heritable. It passes to the
legal hairs after his death

7) Ownership has a residuary character: 

            It is possible that an owner has parted or given away so many rights in
respect of the things he owned. Still he continues to be the owner of the things in
view of the residuary character of ownership. For example if and owner gives the
lease of his property to A and easement to B, his Ownership of the land is now
consists of Residual right. For example rights which remain when the lesser rights
have been taken
away.-----------------------------------------------------------------------------------------
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Modes of Aquisition of property

 Meaning :The term property is derived from the Latin word 'properietate' and the
French equivalent 'proprius' which means a thing owned. The concept of property and
ownership are very closely related to each other.There can be no property without
ownership and ownership without property.

Definition :  According to Locke, " Every man has a property in his own person." every
individual has the right to preserve his property, that is his wife, liberty and estate."
Modes of Acquisition of Property- 
According to Salmond, there are four kinds of acquisition of property those are
possession, prescription, agreement and inheritance.

3) Measures of civil and criminal liability :

A branch of these rules is called wrong. When a person has committed a wrong, he is said to be liable.
Thus, liability is the condition of the person who has committed a wrong.

DEFINITION OF LIABILITY Liability, as defined by SALMOND, is the bond of necessity that exists wrongdoer
and the remedy of the wrong2 has more often been said to have contract or delict.

KINDS OF LIABILITY Liabilities can be of many kinds. There are civil and criminal liability, remedial and penal
liability, vicarious liability and absolute or strict liability

Civil liability is the enforcement of the right ofthe plaintiff against tire defendant in civil proceedings.
Criminal liability is the liability to be punished in criminal proceeding. A civil liability gives arise to civil
proceedings whose purpose is the enforcement of certain rights claimed by the plaintiff against the
 defendant. Examples of civil proceedings are an action for recovery of a debt, restoration of property, the
specific performance of a contract, recovery of damages, the issuing of an injunction against the
threatened injury, etc

It is possible that the same wrong may give rise to both civil and criminal proceedings. This is so in cases of
assault, defamation, theft and malicious injury to property. In such cases, the criminal proceeding are not
alternative proceedings but concurrent proceedings. Those are independent of the proceedings. The
wrongdoer may be punished by imprisonment. He may be ordered to pay compensation to the injured
party. The outcome of proceedings in civil and criminal liability is generally different.

“Criminal liability”
An act that may be prosecuted by the state in accordance with the state’s criminal code.
“Civil liability” 
Liability not based on a state criminal code; may include private suits between persons or
organization, and suits against the government. Note that the same conduct may trigger both civil
and criminal liability. 

Ownership in jurisprudence

Jurists have defined ownership in different ways. All of them accept the right of ownership as the complete
or supreme right that can be exercised over anything. Thus, according to Hibbert ownership includes four
kinds of rights within itself.

 Right to use a thing

 Right to exclude others from using the thing
 Disposing of the thing
 Right to destroy it.

 KINDS OF OWNERSHIP
There are many kinds of ownership and some of them are corporeal and incorporeal ownership, sole
ownership and co-ownership, legal and equitable ownership, vested and contingent ownership, trust and
beneficial ownership, co- ownership and joint ownership and absolute and limited ownership.

1) Corporeal ownership is the ownership of a material object

2) Ownership of a house, a table or a machine is corporeal ownership
3) Corporeal things are those which can be perceived and felt by the senses and which are
intangible
4) incorporeal ownership is the ownership of a right
5) Ownership of a copyright, a patent or a trademark is incorporeal ownership
6) Incorporeal ownership includes ownership over intellectual objects and encumbrances.

Possessory Remedies
 The term possession expresses the physical relation of control exercised by a person over a
thing. Salmond says- “the continuing exercise of a claim, to the exclusive use of a thing,
constitutes the possession of it”.

1/ Immediate posession
2. Mediate possession
3. Representative possession
4. Concurrent possession
5. Derivative possession
6. Adverse possession7. Duplicate possession
Possessory remedies are those which exist for the protection of possession even
against ownership. Proprietary remedies are those which are available for the
protection of ownership. In many legal systems, possession is provisional or
temporary title even against the true owner. Even a wrongful possessor who is
deprived of his possession can recover it from any person whatsoever on the ground
of his possession. Even the true owner who retakes his own, must first restore
possession to the wrongdoer and then proceed to secure possession on the ground of
his ownership.
Q.Legal Status of Unborn person?
Ans. Legal person is imaginary person. Unborn person have contingent legal personality depend on his
birth. Without birth unborn person cannot be called as legal person. Even though he has following rights.
1. Death Sentence:- Any pregnant women cannot be hanged to death for any crime because law cannot
punish unborn child who is likely to take birth. 2. Injury :- When any child caused injury before birth then
after birth compensation can be claimed. 3. Miscarriage or Abortion:- Any miscarriage or abortion with out
consent of pregnant women is a crime under Sec 412 of IPC having 5yrs imprisonment. It is legal right of
women to give birth of the child. 4. Partition:- when there is partition of joint family property among the
heirs and after that child have taken birth it is right of the child to claim his share in the property by filling
suit called as reopening of partition. 7Q.

Legal Status of Dead Person?

Ans. Dead person is having rights under the law. But dead person is not a legal person. These rights are as
follows:- Law Students Federation – Jurisprudence Study Material (III Semester) – Dec, 2015. LL.B. (3-YDC)
Second Year, III Semester, Regular. Paper – I Jurisprudence 1. Will :- When a person has enacted a will then
after his death property is given to heirs according to will. 2. Disturbance to Dead body :- Anybody who
cause disturbance to dead body from taking to grave yard is a crime U/S 297of IPC having 2yrs
imprisonment. 3. Right of Decent Burial :- If there are no heirs then it is duty of municipalityto dispose the
dead body with respect.
strict liability 
is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The
claimant need only prove that the tort occurred and that the defendant was responsible.
The law imputes strict liability to situations it considers to be inherently dangerous.

Case Example Rylands VS Fletcher

Vicarious liability 
Vicarious liability, also known by the Latin term “respondeat superior,” is the holding of a
person or entity responsible for damages or harm caused by someone else. Most
commonly thought of in employee-employer relationships, it applies in other situations in
which a person or entity holds a superior position to an agent. For instance, a hospital is
responsible for its doctors’ actions.
in English law is a doctrine of English tort law that imposes strict liability on employers for the
wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an
employee is conducting their duties.

Corporate personality is a legal fiction created only by the effect of law. It is a form of legal person which
is recognised by law and rights and duties are imposed on it as an effect of its legal personality imposed
on it by law.

A Corporation or company is an Artificial person created by law with perpetual existence and common
seal”.

The corporation is of two kinds 1) Corporation sole. A corporation sole is an individual person who
represents an official position which has a single separate legal entity. ... A corporation sole can only be
created by statute.

2)Corporation Aggregate.

A corporation aggregate refers to the group of people who unite to form one body under special
denomination. This body has an artificial form of perpetual succession and is legally vested with the ability
to act and, in some respects, have the same rights as an individual.

Theories regarding purpose of criminal justice

Deterrent Theory
In specific deterrence, punishment is designed such that it can educate the
criminals. Thus, this can reform the criminals that are subjected to this theory.
Also, it is maintained that the punishment reforms the criminals. This is done by
creating a fear that the punishment will be repeated.

While a general deterrence is designed to avoid future crime. So, this is done by
making an example of each defendant. Thus, it frightens the citizens to not do
what the defendant did.

Retributive Theory
Retribution is the most ancient justification for punishment. This theory insists
that a person deserves punishment as he has done a wrongful deed. Also, this
theory signifies that no person shall be arrested unless that person has broken the
law. Here are the conditions where a person is considered as an offender are:

 The penalty given will be equivalent to the grievance caused by the person.
 Performed a crime of certain culpability.
 That similar persons have been imposed for similar offenses.
 That the action performed was by him and he was only responsible for it.
Also, he had full knowledge of the penalty system and possible consequences.
Preventive Theory
This theory has used a restraint that an offender if repeats the criminal act is
culpable for death, exile or imprisonment. The theory gets its importance from
the notion that society must be protected from criminals. Thus, the punishment
here is for solidarity and defense.

The modern criminologists saw the preventive theory from a different view.
They first realized that the social and economic forces should be removed from
society. Also, one must pay attention to individuals who show anti-social
behavior. This is because of psychological and biological handicaps.

Reformative Theory
Deterrence and retributive are examples of classical and non-classical
philosophies. The reformative theory was born out of the positive theory that the
focal point of crime is positive thinking. Thus, according to this theory, the
objective of punishment needs to be reformation by the offender.

So, this is not a punishment virtually but rather a rehabilitative process. Thus,
this process helps in making a criminal a good citizen as much as possible.
Furthermore, it makes the citizen a meaningful citizen and an upright straight
man.

Quasi Contract:

A quasi contract is a contract that is created by a court order, not by an agreement made by the

parties to the contract. For example, quasi contracts are created by the court when no
official agreement exists between the parties, in disputes over payments for goods or services.

Consider the following example of a quasi contract:

Teresa’s brother, Eric, tries to talk her into building a greenhouse in her large back yard.
She declines, but Eric is convinced that, if she were surprised by a lovely greenhouse, she
would love it. Knowing that Teresa makes good money, and could easily afford the
greenhouse, Eric contacts greenhouse builder John, and arranges to have him erect the
structure while his sister is at work one day.
Teresa is not happy by her brother’s initiative, but the deed is done. Eric has directed John
to bill his sister for the greenhouse, and that turns out to be the biggest surprise for her.
She declines to pay, and Eric tells John he cannot afford it. John is now out, not only
payment for his many hours of hard work, but cash for the materials he used.
Absolute duties arc owed only to the state breach of which is termed as crime and remed” is its
punishment. 

Relative duties arc owed to any person other than the one who is imposing them and breach of which is
termed as civil wrong which is remedied by restitution or compensation to the injured party

According to Austin Relative duty is one for which there will be corresponding duty. Absolute duty is one, which has no
corresponding right .