NOTES ON JURISPRUDENCE (BS LAW 6TH SEMESTER)

LEGAL RIGHTS

Definition of right.
According to Prof. Holland right is a one man’s capacity of influencing the acts of another, not of his own strength but
on the opinion on the force of society.
According to Austin, a person has a legal right when another or others are bound by law to do or forbear towards him.
Definition of legal rights
According to Pollock, legal right is a freedom allowed and power conferred by law for example right to property, life
and freedom.
Salmond says, legal right is that power which a man has to make a person/persons do refrain from doing certain act so
far as power arises from the society imposing a legal duty.
According to Justice Holmes, legal right is nothing but a permission to exercise certain natural powers and upon
certain conditions to acquire protection, restitution or compensation by the force of public.
Essentials of Legal rights

1. It is available to a person who may be the owner of the right, the subject of it.
2. It is available against a person upon whom lies the correlative duty. He may be called as the person bond or as
a subject for duty.
3. It obliges the person bound to an act or omission in favour of the person entitled. This may be termed as the
content of the right.
4. The act or omission is related to something which is subject matter of the right.
5. Every right has a title. The source and the relation by which the title has been vested in its owner.

Kinds of legal rights

1. Perfect and imperfect rights:

A perfect right is that which corresponds to a perfect duty, it is not only recognized by
the law but also enforced by it. e.g to recover a debt within a limitation period.
An imperfect right is one which may be recognized by the law but not enforced by it. e.g
right to claim a debt barred by the lapse of time.

2. Positive and negative rights:

Positive right corresponds to a positive duty means it entitles its owner that something be
done for him. e.gto receive money from the debtor.
Negative rights have negative duties and entitle its owner that some act may be omitted
for him. e.g money in the pocket not to be snatched by anyone is a negative right

3. Right in rem and right in personam:

A right in rem is that right which is available against the whole world (world at large). It
is available against all persons generally. e.g right to ownership and possession.
A right in personam is available against specific person/persons. It corresponds to a
duty imposed upon determinate person. e.g right to receive price or amount of debt

4. Proprietary and personal rights.

Proprietary rights constitute a man`s property or wealth. It possesses some economic or monetary value
constitute th estate of a person. It may be acquired by inheritance or purchase etc.

Personal rights have no economic value and related to his well being or status. e.g right of life.freedom
and reputation etc.

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POSSESSION

Possession is one of the most important right in law. Possession is like an evidence of ownership.
Disturbing a possession needs to show either title or a better possessory right. It is said that possession is
9/10th of ownership.

Definition:-
 Salmond: Possession reflects a relation of a person with a material objet which is the continuing exercise
of a claim to the exclusive use of it.
Prof. Maine::- Physical detention coupled with the intention to hold the thing as one`s own.
Prof: Bentham::- Actual possession is a title to property which precedes all others .It is against all others
Holland::- Legal possession is indispensible in every department of Law. It is also essential for
determination of international controversies arising out of settlement of new countries.
Kinds of possession:

1--Immediate and mediate possession /Direct and indirect possession

Possession acquired and retained by a person directly is called immediate possession for example A
person purchases a commodity and take possession of it .
Possession held by a person on behalf of other is called a mediate possession. For example A send his
agent to bazar to purchase a commodity and takes it. This possession is mediate possession.
Other examples are:
1. Possession of servant ,agent on behalf of his principal.
2. Possession of tenant at will
3. Goods under the possession of bailee or pledger.

2—Corporeal and incorporeal possession.

Possession of a material object. Possession of a house,land and car. It is also called
“Possessioncorporis” Incorporeal possession is that which is not of material object. E.g possession of copyright,
trademark it is also called “ possessiojuris”

3—Representative possession.
Where the owner of the object has possession through an agent or servant.e,g A send his servant to
market to purchase something. Till delivery to the master the posesion of servant is a representative possession.

4—Concurrent possession.
When the possession of an object is in the hands of more than one person without have adverse claim to each
other. For example possession of land in the hand of owner and other person who has right of way over that land.

5—constructive possession.
It is not actual possession It possession in Law and not a possession in fact. When A gives key of his houde to
his tenant he is giving constructive possession to the tenant.

Res nullius.

According to this principal a number of objects have no title or ownership and first finder of these properties
has a good title to that thing against all but the real owner.

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OWNERSHP

Definition
Professor Salmond says that ‘ownership denotes the relation between a person and right vested in him’.
According to Sohm, ownership is ‘a right, unlimited in respect of its contents to exercise control over a
thing’.
Austin says that ownership is ‘a right indefinite in point of user, unrestricted in point of disposition and
unlimited point of duration.’
Holland defines ownership ‘as a plenary control over an object’. Hibbert says that ‘ownership involves
four rights, the right of using the thing, excluding other from using it, disposing of the thing and destroying the thing.’
While Paton defines it as the power of possession, enjoyment, the power to alienate and leave others by
will.
Characteristics of ownership
1. Ownership is absolute or restricted. It may be limited to a lesser or greater extent either voluntarily or
under compulsion of law.
2. Right of ownership may be restricted during national emergency, during war and other emergency,
during war and other emergency, palatial buildings are acquired for the use of army.
3. An owner has to pay tax to the state and the exercise of his right of ownership is subject to paying
taxes and other dues chargeable on property.
4. An owner cannot exercise hi right of ownership by infringing the rights of other owners. The rule laid
down in Ryland vs. Fletcher, was that if a person brings anything on his land which if it should escape
causes damage to his neighbours would make the personal liable.
5. An owner has not the freedom to dispose of his property in any way he likes. He cannot transfer the
property to defraud his creditors.
6. Infants and lunatics are debarred from the exercise of right of ownership over immovable property
and their guardians or friends act for them.
7. Ownership does not terminate with the death of the owner. It passes on to legal heirs in case of
intestacy, i.e., in case of death without leaving a will.

Kinds of ownership

1. Corporeal and incorporeal:

Corporeal ownership is the ownership of a material object. Corporeal things are those which can be perceived
and felt by one of the human senses. For example, a house, a coin, land, etc. can be seen.
Incorporeal ownership is the ownership of a right. Incorporeal things are those which cannot be
perceived by the senses. For example, a debt, a patent, goodwill, copyright, etc.
2. Sole and co-ownership:
If the right is vested in a single person, the ownership is sole.
If the right is vested in more than one person jointly, it is co-ownership. The co-ownership is further
divided into following categories:-
(a) Common ownership: In common ownership, the rights of a dead man descend to his successors like other
inheritable rights.
(b) Joint ownership: In case of joint ownership, on the death of one of the two joint owners, the ownership
dies with the deceased and it survives to other co-owners by virtue of survivorship.
3. Trust and beneficial:
Trust ownership is an instance of duplicate ownership brought about by equity. Trust property is owned by
two types of persons at the same time, so that the trustee is placed under an obligation to use his ownership for
the benefit of the beneficiary or cestuique trust.
Thus the ownership of the trustee is trust ownership, while the ownership of the beneficiary is called
beneficial ownership. “A trustee is the nominal owner while the beneficiary is the real owner.”
4. Legal and equitable:
In English law, ownership of beneficiary is equitable ownership and ownership of trustee is legal ownership.
Legal ownership has its origin in the rules of common law and equitable ownership is that which
proceeds from rules of equity.
5. Vested and contingent:
Ownership is vested when the title of owner is already perfect. It is contingent ownership when the title of
owner is yet imperfect but is capable of becoming perfect on the fulfillment of some conditions.
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TITLE
Legal term Tittle is referred to a link existsbetween a person and an object. It is a right to ownership of
property. A title is the “de facto” link of which right is the “de jure” consequent. It is a fact by which right gets
vested in its owner. Prof Holmes says that every right is a consequence attached by the law to one or more
facts which the law defines and wherever the law gives any one special rights not shared by the body of the
people.
Title may be called “investitive facts”. The facts as a result of which a right is given to its owner. Which
means that if someone owns a shop the law gives some right to me which reside in me with th exclusion of
others. Such facts constitute my title in the shop.
Investitive rightscreate rights. It is second name of title. These rights may be original or derivative. It is
original when it is created for the first time e.g a person catches a fish and when fish is sold to another person
it is derivative for the other person.
Contrary to this divestitive facts destroy rights. If a right is destroyed by extinction (selling out fish to
other person) this will be a extinctive fact.
Creation, transfer and extinction of rights may be voluntary or involuntary. It is voluntary when consent
of all the parties is there e.g in case of sale or agreement and it is involuntary when property is transferred
through “will”
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SUBSTANTIVE LAW AND PROCEDURAL LAW

Procedure is the mode by which a legal right is enforced as distinguish from the law which actually gives
or defines the rights and which by means of proceedings the court is to administer the machinery.

Definition:
Salmond:
Law of procedure is that branch of the law which governs the process of litigation. It is a law of actions
which includes all legal proceedings, civil or criminal. It is the rule governing the institution and prosecution of civil
and criminal proceedings. Whereas the substantive law is concerned with the ends (purpose) which the administration
of justice seeks. It deals with the rights and remedies.
Procedural law is that law which tells the ways and means to get the rights given by the state.for example
criminal procedure code, civil procedure code and law of evidence which is part and parcel of both laws.
Examples
Where substantive and procedural law are equivalent:-
1. Procedural law says that a child under the age of 8 cannot have a criminal intention, while substantive law
exempts such a child from punishment.
2. Procedural law says that the acts of the servant are done with the authority of the master while substantive law
makes the employer liable for the acts of his employs.
3. The procedural law can be distinguished from the substantive law on the following grounds.
Sl Procedural Law Substatantive law
No
1. It governs the process of litigation and It is that portion of law which concerns purposes and
relates to actions or civil and criminal subject matters of litigation.
proceedings.
2. It deals with the means and instruments by It deals with the ends which the administration of
which the ends of administration of justice justice seeks.
are to be attained.
3. It regulates the conduct and relations of It determines the conduct and relations of the parties
courts and litigants in respect of litigation. inter se in respect of the matter litigated.
4. It regulates the affairs inside the courts. In It relates to matter outside the courts. What facts
what courts and within what time constitute a wrong and whether an offence is punishable
proceedings are to be instituted are by fine or by imprisonment or questions of substantive
questions of its realm. Also, what facts law.
constitute proof of a wrong as a matter of
this law.
5. It governs the institution and prosecution of It defines the right and the remedy.
civil and criminal proceedings.
6. It regulates the conduct of the affairs in the It regulates he affairs controlled by such proceedings.
courts of judicial proceedings.
7. It is created and connected with parties It is related and connected with the public at large.
before the court.
8. Ends of justice is the ultimate object by End of justice s the ultimate object.
applying the rules and the regulations
9. Abolition of Imprisonment for debt is Abolition of capital punishment is an alteration of
merely an alteration in procedural law. substantive law.
10. Procedural Law is subordinate to the Substantive law is promulgated by the supreme
substantive law. legislature.

According to Professor Salmond that in case of clash between substantive and procedural law substantive
law shall prevail.

REQUISITES OF PROCEDURAL LAW OR ELEMENTS OF JUDICIAL PROCEDURE

1. Summons; It enables the parties interested in litigation to present their case before the court of law
for settlement and decision of the claim.
2. Pleadings; pleadings means that the complaints or written statements filed respectively by the
plaintiff (the person who files the case) and defendant (the person against whom case is filed). The
object of pleading is to narrow the parties to definite issues (points of dispute)
3. Proof; proof is the process by which the party supply the court the information through evidence
necessary for the decision of the case. The law of evidence is related to the following three terms.
a. Proved
b. Unproved
c. Disproved
4. Arguments;The arguments are the detailed discussions and debates about the case before the court of
law.
5. Judgment;Judgment means the statements given by the judge of the ground of a decree or order itself
for the settlementof the dispute of the parties.
6. Execution; It is process by which the court enforces its decision. It is an act of completing or carrying
into effect the judgment.
Purposes of procedural law:
Procedural Law is nothing to do but has a simple mission ; the promotion of justice. The task
of court is not to play as umpire in a technical game but to decide the dispute between the parties and
dispensation of justice. And one guiding principal is not to exaggerate the efficacy of procedural defects where
issues of public concerns are involved and a public authority interested in the attention of the court to the
problem.

Mode of acquiring property:

1. Possession; possession of a material object is conceded as owner ship of it a person who claims anything as
his own makes good his claim by way of possession of the particular thing in fact and by way of owner ship
in law. If at the time of taking possession the property is free from any ownership (res nullius and no one is
claiming over it) it will confer good title to the possessor.
2. Prescription; prescription means the laps of time in which law can extinguish right. In other words if a
property alienated within a limited time and that time has elapsed then the property cannot be separated
from the possessor.
3. Agreement; with the mutual consent of the parties the property may be transferred along with its existing
rights to the other party. Agreements are either formal or informal. Formal are those wherein formalities are
dually completed for example delivery of possession is basic necessity to complete a gift. Informal are those
other than formal agreements.
General rule is that no person can transfer to another a title better than what hehimself has possessed
(Nemodatquard non ehabet)
4. Inheritance; on the death of aperson his property devolves on his survivors. Therefore such rights are
heritable. However the personal rights die with the dead person but his other rights will be transferred to his
legal representatives.

IMPORTANT QUESTIONS

1. What are the primary and secondary functions of a state?

2. Distinguish between citizen ship and nationality?
3. What are the main sources of law in English jurisprudence?
4. Legislation is a better source of law discuss in detail?
5. Enumerate the advantages and disadvantages of codification of law?
6. Write brief note on
a. Stare decisis.
b. Obiter dicta.
c. Ratio decidendi
7. What is a precedent and its classification?
8. Define legal damage, rights, legal rights and fundamental rights
9. Perfect and imperfect right?
10. Rights in rem and rights in personum?
11. Ownership and its various aspects?
12. Possession and possession in law?
13. Substantive and procedural law and its differences.
14. Property and its mode of acquisition?
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WISH ALL OF YOU SUCCESS IN INCOMING EXAMINATION.