Document Type

Response or Comment

Publication Date

1917

Abstract

The fact of possession has been so correlated with the theory of property that it is difficult to dissociate ownership from the possibility of physical possession. One finds that the average lawyer, even though he may defind a right in rem as a right enforcible against any person, is extremely apt, unless after especial thought, to explain that it is enforcible against anyone because it pertains to a thing capable of physical possession and control, a thing that could be actually sequestered, from all other persons. Not at all infrequently the term property has been judicially stripped even of its significance of a right, and confined to the objective material thing to which the right might apply. As a matter of fact, comparatively few things have ever been legally recognized as the object of property which have not been tangible. The right to one's reputation, and, more lately recognized, the right to privacy, for instance, are rights in rem, although incapable of tangible possession. The right to have a contract performed without interference by a third party and, it has been said, the right created by assignment of a chose in action, are equally rights in rem. These, and other res, are mere concepts, in no sense whatever corporeal, although the rights concerning them so appertain to the particular person in whose favor they exist as to be truly property rights, and correctly said to be owned by him. But the whole number of these is small compared to the quantity of tangible things which are the subject of property, and even these rights are not usually spoken of, even judicially, in terms of property, as are those pertaining to tangible things.


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