Chapter 18: The Frontiers of Property

• The concept of property is central to American legal thinking. This follows from several legal propositions that attach more significant legal consequences to property than to contract rights.

• One of the primary propositions is the constitutional principle that neither the states nor the federal government may deprive one of property without due process of law. As a result of this idea, there is an enormous push to regard various government benefits as property rights.

• Social security, welfare payments, unemployment insurance, Medicaid—they could all be treated as vested property rights rather than as mere statutory entitlements. Calling them “property” raises procedural barriers to the government’s denial of payment in particular cases.

• Property also serves as the basis for taking jurisdiction over a dispute in rem or, over the property.

  • A plaintiff could get jurisdiction over any defendant simply by attaching the defendant’s property within the jurisdiction.

• If a leasehold is a property interest according to the common law, then attaching the leasehold generates jurisdiction over the lessor wherever he or she happens to be.

• Property, tort, and contract are all associated with different writs at common law.

Conversion and Contracts

• The writ of trover presupposed a conversion of property.

• An allegation of conversion would justify not the return of the thing but damages for the loss. Significantly, there was no requirement to prove fault.

  • The conversion—taking control and depriving the owner of his property—was sufficient to justify a duty to pay damages.

  • The important point about conversion is that you interfere, without justification, with the rights of the owner. That in itself requires you to pay compensation.

• The distinction between property and contract also plays a major role in criminal law.

• Breach of contract is never a crime. If there are exceptions, they are rare and would be associated with other wrongs, such as fraud. But taking and carrying away movable property is the core of the crime of theft.

• Unlawfully keeping possession of a thing entrusted to you is embezzlement.

• If a person has a property right in his or her bodily parts, he or she abandons and forfeits that right in a medical operation only if informed of the full consequences of the operation.