Hello, and welcome. My name is Shyma Balganesh, and I'm a professor at the University of Pennsylvania Law School where I research and write in the areas of property and intellectual property law. I'm trained in the legal systems of three different countries of India, the UK, and the United States. And in the next one hour segment, I will attempt to answer a relatively straightforward questions. Mainly, what is American property law? Now, while this seems like a relatively straightforward question. In reality, it involves two separate sub questions. Each of which I will attempt to answer independently. The first of which is, what is property law? And the second is what is distinctive about American property law? These are the two questions I will attempt to answer in the next one hour. So let's start with the first of these. What is property law? So I define property law in rather broad and simple terms in the following way. Property law represents the legal rules governing human interactions as they relate to various identifiable things. Now as you will see from this rather straightforward but abstract definition it involves three separate but related components. So what are the three components of this definition? First, property law is about human interactions. So to put it very simply, it is about the dealings, the various dealings, the rights, the duties, the privileges and the immunities that people have because of each other and their interactions. It is not about the relationship that humans have to external or outside objects. This is a common misnomer. In some countries and in some legal systems, property might indeed be considered in such terms as entailing the relationship between a human being and an outside object. But this is not so in the American common law system of property. So that's the first aspect that the definition captures. The second element of the definition is that the interaction, the human interaction, must relate to a thing. This is perhaps the most important component of the definition. Now, the nature of this relating to a thing, namely that the interaction must relate to a thing, can of course vary. The most ordinary and basic form entails the thing in question mediating the human interaction, or the relationship. What does this mean? Here's an example. Let's say you're walking through a public parking lot filled with cars of various kinds. Now while you don't ever know the exact identity of the owners of each car, you know that they are indeed owned by distinct individuals. But in dealing with the part cars, say by kicking it, by colliding with it, by trying to pry open a door, legally speaking, you are dealing indirectly with each owner even though you don't know their actual identity. But in dealing with each individual owner, you are doing so through the thing in question, namely the car. So the thing, the car, is mediating your relationship indirectly to the owner of the object in question. Now mediation need not be the only form in which the relating can take place. The thing can also be the subject of a transaction. For example, a sale. A transaction to buy and sell a car is a contractual agreement, but the subject of that transaction involves a thing, namely the car. When this happens, property law now begins to interface with contract law. And what we begin to see, is that ideas, devices, concepts, from both areas, begin to intermingle. A very good example is the law of leases. Now, a lease is a contract, a contractual arrangement between individuals. But it is imbued with ideas from property law for the simple, undeniable reality that it always relates to a land, building, or other object. So the thing in question, since it's a transaction that involves a thing in question, it takes a different shape and starts getting imbued with ideas from both contract and property law. So that's the second element, and perhaps the most important component of the definition. Namely, that the interaction in question must relate to a thing, and the nature of this relating can, of course, vary. It can be simple mediation, or it can be in the form of the thing forming the subject of the interaction in question. Let's move to the third component of the definition. Namely that the thing in question can be of various kinds. It can be immovable, it can be movable, it can be intangible or better still it can be notional. So as long as we have some minimal level of identifiability, identification is critical, the precise level of such identifiability can, of course, vary. So, as long as we have the minimal level, that's all the law cares about. Immovable property involves land and other things permanently attached or affixed to the land. Movable property is just the opposite. It involves what we call in the law chattel, or things that are not permanently attached to land in any way or form, and that can be freely moved. Intangible property is a separate category, and this would cover things that are more ephemeral in nature. Like information, expression, or names brand names for example. So these are the three principal categories, immovable, movable, and intangible. However, property law, especially American property law, recognizes another category, which I will call notional property. Notional property in American property law is a reference to the idea that sometimes legal roles, themselves, create a fictional asset, or a fictional object, within a particular context, and attach consequences to it. So, in other words, the legal rules themselves mimic the working of an ordinary tangible object. Here's a very good example. What we call the right of sepulcher. The right of sepulcher is the right that the next of kin have to control the disposition or the way in which something is treated, namely a dead human body. So what's the right the next of kin have to control the treatment of a dead human body. Now since the right in reality is said to originate, to quote an old decision, in the mystery and sorrow of death, rather morbid of course. The law hesitates to characterize the dead human body as a usual, movable, tangible property. However, to a detailed set of rights and an elaborate set of rules, it nonetheless confers control on the next of kin over that very human body. It dictates what they can and cannot do over the body. What kinds of actions they can prevent in relation to interferences with the human body, and so effectively these legal rules create a property regime functionally over the human body without ever explicitly describing the human body as a form of property. So this is the third component of the definition. Namely that the thing can be of various kinds but nonetheless going back to the second component, there must be a thing and going back to the first component the thing must form the basis of the human interaction. So these three components of the definition I just laid out, and its emphasis on the human aspect of the interaction begin to make sense when we start studying property law and see that in reality about 75% of our property law interfaces with the area of tort law, or the law of civil liability, which provides for certain kinds of civil causes of action in relation to the object. And another 25% of what we call property law, interfaces with contract law or the law of consensual agreements relating to these objects in question. But the object is the key focal point for what defines property law. So in other words, what makes the subject of property law distinct from these other areas, despite this tremendous overlap is its continuous emphasis on the thing in question at all times, which, in other words, simply put, injects nuances into those other areas. We saw how this works, as I mentioned before in relation to the law of leases, which combines the law of contracts and the law of property. Let me illustrate this now with another example. So consider the tort of trespass upon land, the civil claim that allows an owner of land or other immovable property, to commence an action against anyone who intentionally enters upon his or her land without prior authorization. So, there must be an intentional entering upon the land without prior authorization, and this is the civil action of trespass upon land. We've all come across the word trespass, it normally relates to this civil action. However, unlike a vast, vast majority of other types of torts, the law of trespass upon land doesn't care one bit whatsoever about the plaintiff, that is, the, the land owner, or the owner of the immovable property, showing that he or she sustained any actual harm from the invasion. So, a simple 30 second boundary crossing is enough to trigger the action. Just cross over the fence with your foot and technically there is an action. Also, the law doesn't care at all whether the trespasser, that is the person crossing onto the land, did so maliciously or mistakenly. As long as the act was intentional in the sense of being volitional, where the actor knows the physical consequences, not the legal consequences of the action. The action of trespass upon land can be brought. So, the law doesn't care about actual tangible harm, nor does it care about the state of mind of the person actually crossing on to the land. Why is this so, you might ask? Why is that trespass upon land as a tort varies from other tortious actions. The answer is simple, because it relates to land, and land is a thing. So here's a little bit of history which explains this anomaly so to speak. The action of trespass upon land emerged historically as the principle or primary way by which owners could have the boundaries of their property determined authoritatively. So in other words to figure out what the actual contours of one's land was, was in many ways dependent on bringing the action of trespass upon land. The action came to perform a function known in the law as the vindication of ownership, where the dispute forms the basis for determining the boundaries of the property owners' land or the boundaries of the ownership, so to speak. And for this to work, and for it to work effectively, tort law's otherwise extensive emphasis on fault, or the state of mind of the actor, and the harm, tangible or actual, suffered by the owner, had to be thrown out, or jettisoned. And so it's because trespass upon land relates to a thing, the land, or the other immovable property that American property law, in trespass upon land actions, got rid of effectively, both fault and harm, as requirements for the cause of action. So despite its reliance then on tort law, the law of civil liability, and contract law or the law of consensual agreements for its formal structure, American property law has never once suffered from what we might describe as a coherence anxiety. It's always known what its fundamental precepts and underlying foundations were. And the reason for this, is because it's analytical or architectural, so to speak, connection to the thing. The thing in question as the lens through which to approach human interactions in various contexts and various ways has always and at all times seemed intuitive, simple and undisputed. That in a sense is what property law is. [MUSIC]
