Possession is very difficult to define in English Jurisprudence. But it very important topic. Human life and society would become impossible without retention and consumption of material and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the first to claim possession. It is not just acquisition of things but it is continuing claim for use of them. It may be legal or illegal.
How the possession is acquired: Following are some points which can be referred to acquire or loss the ownership:
1. Possession itself is evidence being owner. Pen in my hand is evidence being owner, regardless legally or illegally.
2. The person in possession is presumed to be the owner. A house in my possession is presumed my ownership along-with all the things lying in it.
3. Anything can be held wrongfully or by fraud.
4. Long possession of twelve years confers the title in property, which may belong to others. When a title is conferred to another even without ownership is acquisition of possession.
Possession is defined as “it is continuing exercise of a claim to the exclusive use of it.” It does not cover incorporeal possession. Possession is different from ownership but normally possession and ownership lie together.
How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general mode of acquisition of possession.
Possession is of two kinds, i.e., possession in fact or de facto and possession in law or de jure. Some discordance in law and fact occurs. Law something presumes which may not actually exist. Normally possession in law and possession in fact exist in a person but it may vary.
1. Possession in fact or de facto: It means the possession, which physically exists in term of control over it. It can be seen landlord and tenant where tenant holds possession of house physically or de facto, but it is not possession in law or de jure.
2. Possession in law or de jure: It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is also called constructive possession. A servant may possess car, but in the eyes of law, it is possession of master. Possession of bailor through bailee is de jure possession on the part of bailor.
Corporeal and incorporeal possession: Corporeal possession is the possession of a material or tangible objects, thus it is continuing exercise of a claim on the use of material or tangible object.
Incorporeal possession is the possession of a non-material or intangible object. Thus it is continuing exercise of a claim on the use of non-material or intangible object.
There are two essential elements of possession, i.e., animus and corpus.
1. Animus is the intent or mental condition or activity or claim of exclusive use of the thing possessed. Cloth at tailor’s shop is in possession of tailor but he may not intend to exclude the owner or subject of the owner.
Animus may be legal or illegal. The only test is whether the man in possession intends to exclude others or not. General intent is enough to constitute possession.
All books in library, all fishes in net, all sheep in flock, are subject of intent whether in knowledge or not, thus possession completes.
2. Corpus is second element, which is essential and completes possession. It is objective part of possession. Both animus and corpus are necessary for possession.
The intent to exclude to others from interfering with the object possessed must be evidenced by physical facts. If there is no action then no intention is expressed. Pen in my pocket, ring on my finger, or goods in my home, are corpus of my possession of each of these.
Completion of possession:
1. Power of possession: It shows possession. Books or watch in my hand excludes others thus possession is complete. Things under lock and key are also possession.
2. Presence of possession: A person may be feeble and unable to exclude other but his presence may command respect. Cash in the hand of child is possession.
3. Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is possession.
4. Continuing use: I use pen continuously, read book continuously, use of transport continuously, is possession.
5. Customs: In some localities people are not allowed to interfere to other things even presence is not there, like in Saudi Arabia where people leave their shops remain open and go to offer prayer and no interference is allowed. It is possession even in absence.
6. Respect of rightful claim: In law-abiding societies people do not interfere in the right of other and rightful claim generally obtain security from general acquisition.
Res nullius means ownerless things or objects. Terra nullius means no man land. A person, who finds lost goods, while passing on road, e.g., a wallet, being first finder, he has good title against the whole world except the true owner, even if it is found on another person property without committing trespass. This is the rule. Any other person who looks at finder of lost goods cannot demand his share from lost goods.
If a customer finds a lost wallet while shopping in a store which is not identifiable, can retain till reasonable time to wait its true owner. He is obliged to bring this matter into the knowledge of shopkeeper and give him his own address. If true owner did not come till reasonable time, he will hold title.
There are many other things which have no owner, i.e., gems stone, metal, gold, silver, natural resources, bird, animal, provided these things are found in way, without committing trespass. Precious stone cannot be held from the area specified by government. Bird or fish cannot be hunt from the area of property holder. Things cannot be hold from others house. Bird cannot be hunt, which is prohibited.
There are three exceptions in this rule:
1. Owner of the property on which the thing is found is in possession of the thing itself as well as property, or
2. If the finder is servant or agent then master or principal has title, or
3. Wrongful act does not constitute possession. Trespass is not allowed.
Natural resources in economic zone like water, sea, land etc. belong to government. If treasure comes out from others property will also belong to government.
Kinds of corporeal possession: Immediate possession means direct or proximate possession without agency and mediates possession means in between or remote possession. It is acquired with agency.
F A being a servant holds something for his master B. A has immediate possession while possession of B is mediate.
F Where both claim possession, e.g., tenant and landlord.
F In case of bailment, pledge or mortgage, both have claim.
A has exclusive right of possession on his land while right of way over his land is concurrent.
Acquisition of possession: Possession is acquired when both the animus and corpus are acquired:
1. By taking: When someone takes anything, he has possession. It may either be rightful or wrongful possession.
2. By delivery: The thing is acquired by delivery with consents of previous possessor.
Actual delivery is a kind in which goods are delivered while constructive delivery is the rental or sold goods.
Showing posts with label Jurisprudence. Show all posts
Showing posts with label Jurisprudence. Show all posts
Dec 10, 2007
Nov 22, 2007
Question Of Fact
An issue that involves the resolution of a factual dispute or controversy and is within the sphere of the decisions to be made by a jury.
A question of fact is a factual dispute between litigants that must be resolved by the jury at trial. It is an issue that is material to the outcome of the case and requires an interpretation of conflicting views on the factual circumstances surrounding the case.
A question of fact is best understood by comparing it to a QUESTION OF LAW. Whether a particular issue in a civil case is a question of fact or law is significant because it can determine whether a party wins the case on SUMMARY JUDGMENT. Summary judgment is a judgment on the merits of the case without a trial. A civil respondent may move for summary judgment at any time after the suit has been filed, but a plaintiff generally must wait a short period after filing the suit (for the defendant to respond) before moving for summary judgment. In determining whether to grant a motion for summary judgment, a court may consider admissions by the parties in their pleadings, answers to interrogatories and depositions, and affidavits of personal knowledge of facts.
A court will order summary judgment in a civil case if there is no genuine issue of fact and, based on the undisputed facts, the moving party is entitled to summary judgment as a MATTER OF LAW. If a case does not involve any questions of fact, the only issues are questions of law, so the fact-finding process of a trial is not needed.
To illustrate, suppose that a plaintiff files suit to enforce an agreement to buy a plot of real estate. The respondent declares in her answer that the agreement was oral, and the plaintiff does not deny that the agreement was oral. The court could then order summary judgment in favor of the respondent because a contract for the sale of land must be in writing to be enforceable. Assuming that no other issues are involved, the admission that the agreement was oral eliminates the only material question of fact in the case. The only issue the court would have to decide would be a question of law: whether an oral agreement for the sale of land is enforceable. It is not, so the plaintiff would lose the case without the benefit of a trial because there are no material facts for a fact finder to decide.
Even if a plaintiff challenges a respondent's answer, a respondent may still win summary judgment by proving before trial that no question of fact exists in the case. To do this, the respondent must prove that no question of fact exists by the evidentiary standard that would be used at trial. In civil trials, this standard is either a PREPONDERANCE OF THE EVIDENCE or the slightly higher standard of clear and convincing evidence.
Whether an issue is a question of fact or law is not always clear. In Cruse v. Coldwell Banker, 667 So. 2d 714 (Ala. 1995), Gary and Venita Cruse were shown a house advertised as new, although the sellers, Randy and Brenda Harris, were living in the house. The Cruses bought the house before making a complete inspection. Upon further inspection they discovered numerous defects, and sued the seller and the brokerage firm for FRAUD. The respondents moved for summary judgment on the grounds that the Cruses knew that the sellers were living in the house and that the Cruses signed a contract that stated that they took the house as it was, without warranties. The trial court granted the motion, ruling that no question of fact existed in the case and that the respondents were entitled to summary judgment as a matter of law. On appeal, the Alabama Supreme Court reversed the judgment. Regardless of the contract and the Cruses' knowledge of previous inhabitants, the description of the house as new carried with it an IMPLIED WARRANTY of habitability. Because no determination had been made as to whether the house was actually new, a material question of fact remained and summary judgment was inappropriate.
A question of fact receives the same treatment in a bench (non-jury) trial as it does in a jury trial. The only difference is that in a bench trial the same person resolves both questions of law and fact because the fact finder is the judge. Nevertheless, in a bench trial, a judge may not decide material questions of fact without first affording the parties the process of a trial.
On appeal, a question of fact is treated differently than a question of law. If an appellant alleges that the fact finder incorrectly decided questions of fact, an appeals court will give deference to the fact finder's decisions. The fact finder gets to see and hear all the evidence and thus is in a better position to make factual determinations than is the appeals court. If an appellant claims that the trial judge incorrectly decided a question of law, however, the appeals court will examine the trial judge's ruling more carefully. Essentially, it is more difficult to over-turn a verdict based on a question of fact than a verdict based on a question of law.
Preponderance of Evidence
A standard of proof that must be met by a plaintiff if he or she is to win a civil action.
In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the BURDEN OF PROOF, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof BEYOND A REASONABLE DOUBT, is used in criminal cases and very few civil cases.
The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.
A question of fact is a factual dispute between litigants that must be resolved by the jury at trial. It is an issue that is material to the outcome of the case and requires an interpretation of conflicting views on the factual circumstances surrounding the case.
A question of fact is best understood by comparing it to a QUESTION OF LAW. Whether a particular issue in a civil case is a question of fact or law is significant because it can determine whether a party wins the case on SUMMARY JUDGMENT. Summary judgment is a judgment on the merits of the case without a trial. A civil respondent may move for summary judgment at any time after the suit has been filed, but a plaintiff generally must wait a short period after filing the suit (for the defendant to respond) before moving for summary judgment. In determining whether to grant a motion for summary judgment, a court may consider admissions by the parties in their pleadings, answers to interrogatories and depositions, and affidavits of personal knowledge of facts.
A court will order summary judgment in a civil case if there is no genuine issue of fact and, based on the undisputed facts, the moving party is entitled to summary judgment as a MATTER OF LAW. If a case does not involve any questions of fact, the only issues are questions of law, so the fact-finding process of a trial is not needed.
To illustrate, suppose that a plaintiff files suit to enforce an agreement to buy a plot of real estate. The respondent declares in her answer that the agreement was oral, and the plaintiff does not deny that the agreement was oral. The court could then order summary judgment in favor of the respondent because a contract for the sale of land must be in writing to be enforceable. Assuming that no other issues are involved, the admission that the agreement was oral eliminates the only material question of fact in the case. The only issue the court would have to decide would be a question of law: whether an oral agreement for the sale of land is enforceable. It is not, so the plaintiff would lose the case without the benefit of a trial because there are no material facts for a fact finder to decide.
Even if a plaintiff challenges a respondent's answer, a respondent may still win summary judgment by proving before trial that no question of fact exists in the case. To do this, the respondent must prove that no question of fact exists by the evidentiary standard that would be used at trial. In civil trials, this standard is either a PREPONDERANCE OF THE EVIDENCE or the slightly higher standard of clear and convincing evidence.
Whether an issue is a question of fact or law is not always clear. In Cruse v. Coldwell Banker, 667 So. 2d 714 (Ala. 1995), Gary and Venita Cruse were shown a house advertised as new, although the sellers, Randy and Brenda Harris, were living in the house. The Cruses bought the house before making a complete inspection. Upon further inspection they discovered numerous defects, and sued the seller and the brokerage firm for FRAUD. The respondents moved for summary judgment on the grounds that the Cruses knew that the sellers were living in the house and that the Cruses signed a contract that stated that they took the house as it was, without warranties. The trial court granted the motion, ruling that no question of fact existed in the case and that the respondents were entitled to summary judgment as a matter of law. On appeal, the Alabama Supreme Court reversed the judgment. Regardless of the contract and the Cruses' knowledge of previous inhabitants, the description of the house as new carried with it an IMPLIED WARRANTY of habitability. Because no determination had been made as to whether the house was actually new, a material question of fact remained and summary judgment was inappropriate.
A question of fact receives the same treatment in a bench (non-jury) trial as it does in a jury trial. The only difference is that in a bench trial the same person resolves both questions of law and fact because the fact finder is the judge. Nevertheless, in a bench trial, a judge may not decide material questions of fact without first affording the parties the process of a trial.
On appeal, a question of fact is treated differently than a question of law. If an appellant alleges that the fact finder incorrectly decided questions of fact, an appeals court will give deference to the fact finder's decisions. The fact finder gets to see and hear all the evidence and thus is in a better position to make factual determinations than is the appeals court. If an appellant claims that the trial judge incorrectly decided a question of law, however, the appeals court will examine the trial judge's ruling more carefully. Essentially, it is more difficult to over-turn a verdict based on a question of fact than a verdict based on a question of law.
Preponderance of Evidence
A standard of proof that must be met by a plaintiff if he or she is to win a civil action.
In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the BURDEN OF PROOF, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof BEYOND A REASONABLE DOUBT, is used in criminal cases and very few civil cases.
The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.
Question Of Law
An issue that is within the province of the judge, as opposed to the jury, because it involves the application or interpretation of legal principles or statutes.
At any stage in a proceeding, before or during trial, a judge may have to determine whether to let a jury decide a particular issue. In making this determination, the judge considers whether the issue is a question of law or a QUESTION OF FACT. If the question is one of fact, it should be decided by the jury at trial. If the question is one of law, the judge may decide it without affording the parties the opportunity to present evidence and witnesses to the jury.
A question of law involves the interpretation of principles that are potentially applicable to other cases. In contrast, a question of fact requires an interpretation of circumstances surrounding the case at hand. Resolving QUESTIONS OF FACT is the chief function of the jury. Resolving questions of law is a chief function of the judge.
If the pleadings and initial evidence in a case show that there are no factual disputes between the parties, a court may grant SUMMARY JUDGMENT to a party. Summary judgment is a final judgment in the case made by the court before trial. A court may grant summary judgment in a case that contains no factual disputes because such a case presents only a question, or questions, of law, so the fact-finding function of the jury is not needed.
On appeal, the trial court's ruling on a question of law generally receives closer scrutiny than a jury's findings of fact. Being present at the trial, the fact finder is in a better position than the appeals court to evaluate evidence and testimony.
An issue may be characterized on appeal as a mixed question of law and fact. A mixed question occurs when the facts surrounding the case are admitted and the rule of the applicable law is undisputed; the issue then is whether the RULE OF LAW was correctly applied to the established facts. In a criminal case, for example, assume that a trial court, over the objection of the defendant, allows the prosecution to present evidence that the defendant was identified as the perpetrator. If the defendant is found guilty and challenges the identification procedure on appeal, the question is one of both law and fact. The appeals court must decide whether the trial court correctly applied the law on DUE PROCESS in identification procedures to the particular identification procedure used in the case. In such a case, the appeals court will scrutinize both the facts and the trial judge's rulings on questions of law.
At any stage in a proceeding, before or during trial, a judge may have to determine whether to let a jury decide a particular issue. In making this determination, the judge considers whether the issue is a question of law or a QUESTION OF FACT. If the question is one of fact, it should be decided by the jury at trial. If the question is one of law, the judge may decide it without affording the parties the opportunity to present evidence and witnesses to the jury.
A question of law involves the interpretation of principles that are potentially applicable to other cases. In contrast, a question of fact requires an interpretation of circumstances surrounding the case at hand. Resolving QUESTIONS OF FACT is the chief function of the jury. Resolving questions of law is a chief function of the judge.
If the pleadings and initial evidence in a case show that there are no factual disputes between the parties, a court may grant SUMMARY JUDGMENT to a party. Summary judgment is a final judgment in the case made by the court before trial. A court may grant summary judgment in a case that contains no factual disputes because such a case presents only a question, or questions, of law, so the fact-finding function of the jury is not needed.
On appeal, the trial court's ruling on a question of law generally receives closer scrutiny than a jury's findings of fact. Being present at the trial, the fact finder is in a better position than the appeals court to evaluate evidence and testimony.
An issue may be characterized on appeal as a mixed question of law and fact. A mixed question occurs when the facts surrounding the case are admitted and the rule of the applicable law is undisputed; the issue then is whether the RULE OF LAW was correctly applied to the established facts. In a criminal case, for example, assume that a trial court, over the objection of the defendant, allows the prosecution to present evidence that the defendant was identified as the perpetrator. If the defendant is found guilty and challenges the identification procedure on appeal, the question is one of both law and fact. The appeals court must decide whether the trial court correctly applied the law on DUE PROCESS in identification procedures to the particular identification procedure used in the case. In such a case, the appeals court will scrutinize both the facts and the trial judge's rulings on questions of law.
Nov 1, 2007
Laws of Nature
law of nature, are asserted to be binding all over the globe, so that " no human laws are of any validity if contrary to this."
Austin never fails to stigmatize the use of "natural laws" in the sense of scientific facts as improper, or as metaphorical. Having eliminated metaphorical or figurative laws, we restrict ourselves to those laws which are commands. This word is the key to the analysis of law, and accordingly a large portion of Austin's work is occupied with the determination of its meaning.
A command is order issued by a superior to an inferior . It is a signification of case he comply not with the desire." " If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command." Being liable to evil in case I comply not with the wish which you signify, I am bound or obliged by it, or I lie under a duty to obey it . The evil is called a sanction, and the command or duty is said to be sanctioned by the chance of incurring the evil . The three terms command, duty and sanction are thus inseparably connected . As Austin, expresses it in the language of formal logic, " each of the three terms signifies the same notion, but each denotes a different part of that notion and connotes the residue." All commands, however, are not laws . That term is reserved for those commands which oblige generally to the performance of acts of a class . A command to your servant to rise at such an hour on such a morning is a particular command, but not a law or rule; a command to rise always at that hour is a law or rule .
Austin never fails to stigmatize the use of "natural laws" in the sense of scientific facts as improper, or as metaphorical. Having eliminated metaphorical or figurative laws, we restrict ourselves to those laws which are commands. This word is the key to the analysis of law, and accordingly a large portion of Austin's work is occupied with the determination of its meaning.
A command is order issued by a superior to an inferior . It is a signification of case he comply not with the desire." " If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command." Being liable to evil in case I comply not with the wish which you signify, I am bound or obliged by it, or I lie under a duty to obey it . The evil is called a sanction, and the command or duty is said to be sanctioned by the chance of incurring the evil . The three terms command, duty and sanction are thus inseparably connected . As Austin, expresses it in the language of formal logic, " each of the three terms signifies the same notion, but each denotes a different part of that notion and connotes the residue." All commands, however, are not laws . That term is reserved for those commands which oblige generally to the performance of acts of a class . A command to your servant to rise at such an hour on such a morning is a particular command, but not a law or rule; a command to rise always at that hour is a law or rule .
Comparative Jurisprudence
It is not concerned with analytical jurisprudence as a theory of legal thought, or an encyclopaedic introduction to legal teaching. Jurisprudence in such a philosophic or pedagogical sense has certainly to reckon with the methods and results of a comparative study of law,
but its aims are distinct from those of the latter: it deals with more general problems. On the other hand, the comparative study of law may itself be treated in two different ways: it may be directed to a comparison of existing systems of legislation and law, with a view to tracing analogies and contrasts in the treatment of practical problems and taking note of expedients and of possible solutions. Or else it may aim at discovering the principles regulating the development of legal systems.
In the first sense, comparative jurisprudence resolves itself into a study of home and foreign law. In the second sense, comparative jurisprudence is one of the aspects of socalled sociology, being the study of social evolution in the special domain of law.
It is only natural, however, that early periods and primitive conditions have attracted investigators in this field more than recent developments. This peculiarity is easily explained if we take into account the tendency of all evolutionary investigations to obtain a view of origins in order to follow up the threads of development from their initial starting-point.
The idea that the legal enactments and customs of different countries should be compared for the purpose of deducing general principles from them is as old as political science itself. It was realized with especial vividness in epochs when a considerable, material of observations was gathered from different sources and in various forms.
there is no determined line of division between ancient and modern comparative jurisprudence in so far as both are aiming at the study of legal development.
The law of Islam or, for that matter, the German civil code, may be taken up as a subject of study quite as much as the marriage customs of Australian tribes.
The fact that the comparative study of legal evolution is chiefly represented by investigations of early institutions is therefore a characteristic, but not a necessary feature in the treatment of the subject. But it is essential to this treatment that it should be historical and comparative.
The immediate incitement for the formation of comparative jurisprudence was given by the great discoveries of comparative philology. When the labours of Franz Bopp, August Schleicher, Max Muller, W. D. Whitney and others revealed the profound connexion between the different branches of the Indo-European race in regard to their languages, and showed that the development of these languages proceeded on lines which might be studied in a strictly scientific manner, on the basis of comparative observation and with the object of tracing the uniformities of the process, it was natural that students of religion, of folk-lore and of legal institutions took up the same method and tried to win similar results.
It is desirable, in conclusion, to review the entire domain of comparative jurisprudence, and to formulate the chief principles of method which have to be taken into consideration in the course of this study.
It is evident, to begin with, that a scientific comparison of facts must be directed towards two aims - towards establishing and explaining similarity, and towards enumerating and explaining differences. As a matter of fact the same material may be studied from both points of view, though logically these are two distinct processes.
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