Lecture 1: Introduction to Property. Assoc Prof Cameron Stewart. The Blind Men and the Elephant. John Godfrey Saxe . What is property? Real & Personal.
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Assoc Prof Cameron Stewart
(c) Chose in action – a movable incorporeal thing - rights which are enforceable by action – eg shares, patents copyrights, equitable securities, contractual rights, promissory notes, cheques, mere equities
(ii) Incorporeal and intangible
(iii) Bare right – not occupation and enjoyment
Knapp v Knapp  SASR 257 at 261 per Mayo J:
"The general right of ownership embraces subsidiary rights such as exclusive enjoyment, to destroy, to alienate or to alter, and, of course, the right to maintain, and to resume and recover possession from other persons"
Ownership indicates the relationship between a person and a corporeal or incorporeal legal object. It confers a bundle of rights to enjoy, use possess, dispose of and alienate a "thing" as well as the capacity to ward of any encroachment on the thing. Ownership can be limited by other rights but is not dependent on other rights.
Professor LoaneSkene (2002; 2007) is a leading advocate of why property rights should not be recognised in human tissue. She states that following public policy issues justify the law’s failure to recognise property rights (2004: 166):
Non-regenerative tissue may be donated for transplantation into the body of another person. There must be a delay of at least 24 hours after the consent to the donation has been made before the tissue may be removed. In South Australia the consent must not be given in the presence of the donor’s family. . In Western Australia the consent must not be given in the presence of the adult’s family and friends.
A medical practitioner may certify that:
consent was given in the presence of the medical practitioner (in Queensland, the designated officer);
the nature and effect of the removal of the tissue had been explained;
the adult was of sound mind and the consent was given freely.
In all jurisdictions, except South Australia and Western Australia, the time of the consent must be included in the written consent (in New South Wales the day and time must also be included). When the written consent has been gained and the certificate signed, the tissue may be removed for the approved purpose.
Subject to the certain conditions below, a designated officer may authorise removal of tissue from the body of a deceased person where the body is at a hospital and the purpose is for transplantation to a living person or other therapeutic, medical or scientific purposes.
Deceased’s views known
Where the designated officer has made reasonable inquires to determine whether the deceased had expressed a wish or had consented to removal of tissue after death and (except in Victoria) it had not been withdrawn or revoked, the removal may be authorised (in writing) in accordance with the wish or consent.
Deceased’s views not known
Where there has been no explicit expression of consent by the deceased and the deceased had not objected during their lifetime, and the senior available next-of-kin does not object (in New South Wales, Queensland, Tasmania and Victoria actually consents), the designated officer may authorise the removal of tissue.
In the ACT, Northern Territory, South Australia and Victoria, if the senior available next-of-kin cannot be contacted the designated officer may authorise the removal of tissue: Transplantation and Anatomy Act 1978 (ACT), s 27(3); Human Tissue Transplant Act 1979 (NT), s 18(3); Transplantation and Anatomy Act 1983 (SA), s 21(3); Human Tissue Act 1982 (Vic), s 26(1). . ‘Senior available next-of-kin’ means (in the following order of priority):
in relation to a child –
a parent of the child;
a brother or sister who has attained the age of 18 years; or
a guardian of the child
in relation to any other deceased person –
the spouse of the deceased (some jurisdictions will recognise a same-sex relationship in this category);
a son or daughter who has attained the age of 18 years;
a parent of the deceased person; or
a brother or sister of the deceased person who has attained the age of 18 years.
Boris Becker and wrongful use of sperm? Conversion? Breach of Confidence?
Kay v SESAHS
This Part does not apply to:
(a) any provision of a deed, will or other instrument, whether made before or after the commencement of this Part, that confers charitable benefits, or enables charitable benefits to be conferred, on persons of a particular race, colour or national or ethnic origin; or
(b) any act done in order to comply with such a provision
(c) For us the easiest course would be to uphold the claims of the men to have had ownership of the sperm for present purposes by reference to the principle first identified in Doodeward. We would have no difficulty in concluding that the unit's storage of the sperm in liquid nitrogen at minus 196°C was an application to the sperm of work and skill which conferred on it a substantially different attribute, namely the arrest of its swift perishability. We would regard Kelly as entirely consistent with such an analysis and Dobson as a claim which failed for a different reason, namely that the pathologist never undertook to the claimants, and was not otherwise obliged, to continue to preserve the brain.
(d) However, as foreshadowed by Rose LJ in Kelly, we are not content to see the common law in this area founded upon the principle in Doodeward, which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the body, for example, a finger which has been amputated in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before starting the necessary medical procedures, be able to escape liability on the footing that the body part had not been subject to the exercise of work or skill which had changed its attributes?