Property- Dukeminier Chapters 1-5

Front 1

Labor Theory

Back 1

John Locke- Mixing your labor with something unowned (e.g. catching wild fish) you own the resulting mixture of labor & object

Front 2

Utilitarianism

Back 2

David Hume & Jeremy Bentham argued property was utilitarian- we protect others' possessions as property because we desire same protection for our possessions. The implicit root of property in this theory is possession.

Front 3

Economic Efficiency Theory

Back 3

If everything unowned under condition of scarcity, people will unduly deplete resources because individual's gain from depletion is greater than individual's cost. Yet from a social perspective, aggregrate costs are external. Property helps to internalize these costs, so individuals make economic efficient judgments. Example: Cod fishery is unowned. Individual fishermen take as much as they can, since cost of overfishing is borne by others. Eventually source is depleted. If each fisherman has individual property interest, then incentive to overfish decreases, which benefits fishermen & society.

Front 4

Custom

Back 4

People that engage in common activities develop customs that govern relationships between themselves and toward objects of acquisition or husbandry. Some customs require force of law.

Front 5

Property Right of Unowned Things

Back 5

Discovery, Capture, Creation

Front 6

Discovery

Back 6

Related to 1st possession

Front 7

Capture

Back 7

Becomes property of person effecting capture. Must be actually possessed to become property. Actual possession constituted by 1) policy considerations, 2) custom

Front 8

Right to Exclude

Back 8

Not absolute (corollary right)
Pressing social necessity requires some modifications (owner may be required to tolerate unwanted incursions)
Matter of degree- if gov't denies owner right

Front 9

Right to Destroy

Back 9

Social Disutility leads to limits on this right

Front 10

Finder's Law

Back 10

To restore property to true owner, reward honest finders, deliver the reasonable expectations of landowners and discourage trespassers & wrongdoers

Front 11

Abandoned

Back 11

True owner voluntarily intends to give up right of ownership
1st Possessor= Owner (unless possession is wrongful)

Front 12

Lost/ Mislaid Property

Back 12

Finder generally has better title to it except that of true owner; but owner of property where found may have better title than finder in some circumstances.

Front 13

Finder v. Landowner

Back 13

If object is lost and finder is not a trespasser, then finder prevails
If object is mislaid, landowner prevails (on theory that owner is more apt to retrace steps to locate where misplaced)
Finder loses to landowner if finder is employee of invitee or if its embedded in soil

Front 14

Statute Modification

Back 14

Modified by statute typically by awarding all found property to finders after reasonable search for true owner, and true owner not found.

Front 15

Equitable Division

Back 15

For equitable division- divide value between claimants with equal legitimate claims