LAW OF PROPERTY

Law of Property

Assignment 1

Law of Property

Answer - 1

The division of property into real and personal represents in a great measure the division into immovable and movable incidentally recognized in Roman law and generally adopted since. "Things personal," according to Blackstone, "are goods, money, and all other movables which may attend the owner's person wherever he thinks proper to go" (Comm. ii. 16). This identification of things personal with movables, though logical in theory, does not, as will be seen, perfectly express the English law, owing to the somewhat anomalous position of chattels real. In England real property is supposed to be superior in dignity to personal property, which was originally of little importance from a legal point of view. This view is the result of feudal ideas, and had no place in the Roman system, in which immovables and movables were dealt with as far as possible in the same manner, and descended according to the same rules. The main differences between real and personal property which still exist in England are these. (I) In real property there can be nothing more than limited ownership; there can be no estate properly so called in personal property, and it may be held in complete ownership. There is nothing corresponding to an estate-tail in personal property; words which in real property would create an estate-tail will give an absolute interest in personalty. A life-interest may, however, be given in personalty, except in articles quae ipso usu consumuntur. Limitations of personal property, equally with those of real property, fall within the rule against perpetuities. (2) Personal property is not subject to various incidents of real property, such as rent, dower or escheat. (3) On the death of the owner intestate real property descends to the heir; personal property is divided according to the Statute of Distributions. (4) Real property as a general rule must be transferred by deed; personal property does not need so solemn a mode of transfer. (5) Contracts relating to real property must be in writing by the Statute of Frauds, 29 Car. II. c. 3, s. 4; contracts relating to personal property need only be in writing when it is expressly so provided by statute, as, for instance, in the cases falling under s. 17 of the Statute of Frauds. (6) A will of lands need not be proved, but a will of personalty or of personal and real property together must be proved in order to give a title to those claiming under it. (7) Devises of real estate fall as a rule within the Mortmain Acts (see Charity And Charities; Corporation); bequests of personal property, other than chattels real, are not within the act. (8) Mortgages of real property need not generally be registered; mortgages of personal property for the most part require registration under the Bills of Sale Acts (see Pledge, and Bill Of Sale).

Personal estate is divided in English law into chattels real and chattels personal; the latter are again divided into ...