Attracta Ingram
- Published in print:
- 1994
- Published Online:
- November 2003
- ISBN:
- 9780198279631
- eISBN:
- 9780191599545
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198279639.003.0004
- Subject:
- Political Science, Political Theory
This chapter discusses the conceptual inadequacy of the whole proprietary approach to rights. It argues that the concept of a right cannot be reduced to the conception of rights under capitalism, ...
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This chapter discusses the conceptual inadequacy of the whole proprietary approach to rights. It argues that the concept of a right cannot be reduced to the conception of rights under capitalism, i.e., property conception. The proprietary conception cannot be the favoured interpretation of rights because it fails to explain the possibility of a transition from capitalism to a form of socialism that embeds individual rights in its social structure. A system of proprietary rights cannot be agreed upon by all in a modern democracy.Less
This chapter discusses the conceptual inadequacy of the whole proprietary approach to rights. It argues that the concept of a right cannot be reduced to the conception of rights under capitalism, i.e., property conception. The proprietary conception cannot be the favoured interpretation of rights because it fails to explain the possibility of a transition from capitalism to a form of socialism that embeds individual rights in its social structure. A system of proprietary rights cannot be agreed upon by all in a modern democracy.
Shalini Venturelli
- Published in print:
- 1998
- Published Online:
- October 2011
- ISBN:
- 9780198233794
- eISBN:
- 9780191678998
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198233794.003.0006
- Subject:
- Literature, Film, Media, and Cultural Studies
This chapter attempts to present a clear-cut examination and detailed analysis of the direction of the policies in the information society for content regulation, ownership, intellectual property ...
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This chapter attempts to present a clear-cut examination and detailed analysis of the direction of the policies in the information society for content regulation, ownership, intellectual property rights, and audiovisual policy. This chapter argues that the resolution of conflict between people's rights to content production and distribution and proprietary rights will determine the potential of the information age to impact economic growth and the political community. This chapter examines the political implications of the proliferation of the economic incentives intellectual property rights (IPR) concept. This chapter points out that the aforesaid IPR concept is an ordering principle which regulates ownership rights over content in the public sphere. It discusses the Treaty of the Commission of the European Communities which fails to govern the political rights of the citizens of the European Union. The goal of the treaty is merely to regulate the activities of both public and private legal corporate entities.Less
This chapter attempts to present a clear-cut examination and detailed analysis of the direction of the policies in the information society for content regulation, ownership, intellectual property rights, and audiovisual policy. This chapter argues that the resolution of conflict between people's rights to content production and distribution and proprietary rights will determine the potential of the information age to impact economic growth and the political community. This chapter examines the political implications of the proliferation of the economic incentives intellectual property rights (IPR) concept. This chapter points out that the aforesaid IPR concept is an ordering principle which regulates ownership rights over content in the public sphere. It discusses the Treaty of the Commission of the European Communities which fails to govern the political rights of the citizens of the European Union. The goal of the treaty is merely to regulate the activities of both public and private legal corporate entities.
William Swadling
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199661770
- eISBN:
- 9780191778612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661770.003.0004
- Subject:
- Law, Law of Obligations, Company and Commercial Law
The law of property is concerned with certain types of rights between persons with respect to things, those things being either land or goods, and those rights being proprietary rather than personal. ...
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The law of property is concerned with certain types of rights between persons with respect to things, those things being either land or goods, and those rights being proprietary rather than personal. This chapter discusses the types of rights which qualify as proprietary, the ways in which such rights can be held, the ways in which they are created and transferred, and, finally, the ways in which they may come to an end. It covers the law of real property (land law), the law of personal property (goods), and the law of trusts.Less
The law of property is concerned with certain types of rights between persons with respect to things, those things being either land or goods, and those rights being proprietary rather than personal. This chapter discusses the types of rights which qualify as proprietary, the ways in which such rights can be held, the ways in which they are created and transferred, and, finally, the ways in which they may come to an end. It covers the law of real property (land law), the law of personal property (goods), and the law of trusts.
Attracta Ingram
- Published in print:
- 1994
- Published Online:
- November 2003
- ISBN:
- 9780198279631
- eISBN:
- 9780191599545
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198279639.003.0007
- Subject:
- Political Science, Political Theory
The conception of autonomy described in the previous chapter yields interconnected norms of Equal Respect, Reasonableness, Generality, Symmetry, Secularity, and Universality. The interpretation of ...
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The conception of autonomy described in the previous chapter yields interconnected norms of Equal Respect, Reasonableness, Generality, Symmetry, Secularity, and Universality. The interpretation of these norms is led by an understanding of autonomy which precludes the possibility of any conversation constrained by them concluding in favour of self-ownership and its proprietary rights. If autonomy is our moral and political ideal, we are committed to an expressivist rather than a modus vivendi view of politics.Less
The conception of autonomy described in the previous chapter yields interconnected norms of Equal Respect, Reasonableness, Generality, Symmetry, Secularity, and Universality. The interpretation of these norms is led by an understanding of autonomy which precludes the possibility of any conversation constrained by them concluding in favour of self-ownership and its proprietary rights. If autonomy is our moral and political ideal, we are committed to an expressivist rather than a modus vivendi view of politics.
Graham Virgo
- Published in print:
- 2015
- Published Online:
- September 2015
- ISBN:
- 9780198726388
- eISBN:
- 9780191793271
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198726388.003.0022
- Subject:
- Law, Law of Obligations, Company and Commercial Law
Once a claimant has established that he or she has a legal or equitable proprietary interest which can be followed or traced into property which had been received by the defendant, the claimant can ...
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Once a claimant has established that he or she has a legal or equitable proprietary interest which can be followed or traced into property which had been received by the defendant, the claimant can establish a restitutionary claim to vindicate his or her proprietary rights. This chapter examines the following questions: What is the nature of the claim to this property? What is the appropriate remedy to vindicate this proprietary right? These remedies can take two forms. The first are proprietary remedies where the claimant is able to recover the property itself or acquire a security interest in the property which is in the defendant’s hands. The second are personal remedies where the defendant is only able to recover the value of the property received by the defendant.Less
Once a claimant has established that he or she has a legal or equitable proprietary interest which can be followed or traced into property which had been received by the defendant, the claimant can establish a restitutionary claim to vindicate his or her proprietary rights. This chapter examines the following questions: What is the nature of the claim to this property? What is the appropriate remedy to vindicate this proprietary right? These remedies can take two forms. The first are proprietary remedies where the claimant is able to recover the property itself or acquire a security interest in the property which is in the defendant’s hands. The second are personal remedies where the defendant is only able to recover the value of the property received by the defendant.
Shalini Venturelli
- Published in print:
- 1998
- Published Online:
- October 2011
- ISBN:
- 9780198233794
- eISBN:
- 9780191678998
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198233794.003.0004
- Subject:
- Literature, Film, Media, and Cultural Studies
This chapter constructs a diagram and framework for a participatory public space. It opens a discussion on the application of the concept of a participatory diagram of public space and a detailed and ...
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This chapter constructs a diagram and framework for a participatory public space. It opens a discussion on the application of the concept of a participatory diagram of public space and a detailed and exhaustive analysis of a number of major policy initiatives in the realm of information society in several countries and nations. It discusses the participatory theory of public space and how it begins with the normative basis for information structures. Several key issues in information society policies have been identified in this chapter such as the principles and criteria for minimum conditions of non-discriminatory access to the information network by individuals or groups; positive content regulation to guarantee adequacy of information services; rules on content and infrastructure ownership; the structure of intellectual property rights and proprietary rights governing content ownership; rules on governance, accountability, and public interest standards in functioning and development of the multimedia public sphere, the implications of privatization law; construction of the competitive order of the information society; and the provisions to ensure priority on citizens' constitutional rights to expression and information.Less
This chapter constructs a diagram and framework for a participatory public space. It opens a discussion on the application of the concept of a participatory diagram of public space and a detailed and exhaustive analysis of a number of major policy initiatives in the realm of information society in several countries and nations. It discusses the participatory theory of public space and how it begins with the normative basis for information structures. Several key issues in information society policies have been identified in this chapter such as the principles and criteria for minimum conditions of non-discriminatory access to the information network by individuals or groups; positive content regulation to guarantee adequacy of information services; rules on content and infrastructure ownership; the structure of intellectual property rights and proprietary rights governing content ownership; rules on governance, accountability, and public interest standards in functioning and development of the multimedia public sphere, the implications of privatization law; construction of the competitive order of the information society; and the provisions to ensure priority on citizens' constitutional rights to expression and information.
Graham Virgo
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199298501
- eISBN:
- 9780191713613
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298501.003.0026
- Subject:
- Law, Law of Obligations
All restitutionary claims, regardless of the underlying cause of action, are subject to a defence of illegality. This stems from the fundamental principle of law, known as ex turpi causa non oritur ...
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All restitutionary claims, regardless of the underlying cause of action, are subject to a defence of illegality. This stems from the fundamental principle of law, known as ex turpi causa non oritur actio, that the courts will generally not assist the claimant to obtain a remedy where his or her action is founded on an illegal transaction. There is, however, another principle which is particularly relevant to restitutionary claims, and this is known as the in pari delicto potior est conditio defendentis defence. If the claimant seeks restitution in connection with a transaction which was tainted by illegality, the claim may be defeated by the in pari delicto defence. This chapter discusses the general principles of illegality, illegality at common law, consequences of a transaction being tainted by illegality, methods for avoiding the operation of the in pari delicto defence, vindication of proprietary rights despite illegality, and reform of the law.Less
All restitutionary claims, regardless of the underlying cause of action, are subject to a defence of illegality. This stems from the fundamental principle of law, known as ex turpi causa non oritur actio, that the courts will generally not assist the claimant to obtain a remedy where his or her action is founded on an illegal transaction. There is, however, another principle which is particularly relevant to restitutionary claims, and this is known as the in pari delicto potior est conditio defendentis defence. If the claimant seeks restitution in connection with a transaction which was tainted by illegality, the claim may be defeated by the in pari delicto defence. This chapter discusses the general principles of illegality, illegality at common law, consequences of a transaction being tainted by illegality, methods for avoiding the operation of the in pari delicto defence, vindication of proprietary rights despite illegality, and reform of the law.
Peter Birks
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199276981
- eISBN:
- 9780191699917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276981.003.0003
- Subject:
- Law, Law of Obligations
Enrichment at the expense of another is neutral in itself. This chapter asks only whether the defendant was enriched. A conclusion that the recipient was not enriched puts an end to the inquiry. The ...
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Enrichment at the expense of another is neutral in itself. This chapter asks only whether the defendant was enriched. A conclusion that the recipient was not enriched puts an end to the inquiry. The defendant may still be liable, but not in unjust enrichment. A person who has received a service but cannot be said to have been enriched may yet be liable to reimburse an uninvited intervener in his affairs. In the great majority of unjust enrichment cases the enrichment in question is passed over unnoticed. This is not because it does not require an answer but because the defendant has usually received money. Since money is the measure of wealth, there is very rarely any contest on the enrichment issue where money has been received. Most of the problems relating to enrichment fall under one or the other of two heads. The first is the subjectivity of the value of non-money benefits. The second problem deals with the relationship of unjust enrichment and property in the last chapter. This chapter also discusses enrichments in kind, extant enrichment and instant disenrichment, retention of pre-existing title, raising of new proprietary rights, and two conceptions of wealth.Less
Enrichment at the expense of another is neutral in itself. This chapter asks only whether the defendant was enriched. A conclusion that the recipient was not enriched puts an end to the inquiry. The defendant may still be liable, but not in unjust enrichment. A person who has received a service but cannot be said to have been enriched may yet be liable to reimburse an uninvited intervener in his affairs. In the great majority of unjust enrichment cases the enrichment in question is passed over unnoticed. This is not because it does not require an answer but because the defendant has usually received money. Since money is the measure of wealth, there is very rarely any contest on the enrichment issue where money has been received. Most of the problems relating to enrichment fall under one or the other of two heads. The first is the subjectivity of the value of non-money benefits. The second problem deals with the relationship of unjust enrichment and property in the last chapter. This chapter also discusses enrichments in kind, extant enrichment and instant disenrichment, retention of pre-existing title, raising of new proprietary rights, and two conceptions of wealth.
Graham Virgo
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199298501
- eISBN:
- 9780191713613
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298501.003.0028
- Subject:
- Law, Law of Obligations
For reasons of public policy, most civil actions are subject to a time bar whose effect is that, once a particular period of time has passed, the defendant can no longer be sued on that particular ...
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For reasons of public policy, most civil actions are subject to a time bar whose effect is that, once a particular period of time has passed, the defendant can no longer be sued on that particular action. There are two distinct legal regimes relating to the barring of restitutionary actions by the passage of time. The first and most important regime is contained in the Limitation Act 1980, which specifies particular limitation periods for different types of actions. The second regime is the equitable defence of laches, which determines whether an equitable action is time barred by reference to the justice of the case having regard to all the surrounding circumstances. This chapter discusses reversal of the defendant's unjust enrichment, qualification of the general limitation period for particular restitutionary claims, restitutionary claims founded on the commission of tort or breach of contract, restitutionary claims founded on equitable wrongs, vindication of proprietary rights, and function of the laches defence.Less
For reasons of public policy, most civil actions are subject to a time bar whose effect is that, once a particular period of time has passed, the defendant can no longer be sued on that particular action. There are two distinct legal regimes relating to the barring of restitutionary actions by the passage of time. The first and most important regime is contained in the Limitation Act 1980, which specifies particular limitation periods for different types of actions. The second regime is the equitable defence of laches, which determines whether an equitable action is time barred by reference to the justice of the case having regard to all the surrounding circumstances. This chapter discusses reversal of the defendant's unjust enrichment, qualification of the general limitation period for particular restitutionary claims, restitutionary claims founded on the commission of tort or breach of contract, restitutionary claims founded on equitable wrongs, vindication of proprietary rights, and function of the laches defence.
Graham Virgo
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199298501
- eISBN:
- 9780191713613
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298501.003.0005
- Subject:
- Law, Law of Obligations
Where the claimant wishes to obtain restitution from the defendant on the ground of unjust enrichment, it is not enough to show that the defendant has been enriched in circumstances which fall within ...
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Where the claimant wishes to obtain restitution from the defendant on the ground of unjust enrichment, it is not enough to show that the defendant has been enriched in circumstances which fall within one of the grounds of restitution. The claimant must also establish that this enrichment was obtained at the claimant's expense. This requires the claimant to establish a connection between the receipt of an enrichment by the defendant and the claimant's loss so as to justify the restitutionary claim against the defendant. One important question is whether the claimant's gain must correspond with the defendant's loss. This chapter discusses the privity principle and exceptions to this principle, including restitutionary claims to vindicate the claimant's proprietary rights, restitutionary claims founded on wrongdoing, agency, and the principle of interceptive subtraction. The issue of whether non-money benefits received by the defendant were received at the claimant's expense is also considered.Less
Where the claimant wishes to obtain restitution from the defendant on the ground of unjust enrichment, it is not enough to show that the defendant has been enriched in circumstances which fall within one of the grounds of restitution. The claimant must also establish that this enrichment was obtained at the claimant's expense. This requires the claimant to establish a connection between the receipt of an enrichment by the defendant and the claimant's loss so as to justify the restitutionary claim against the defendant. One important question is whether the claimant's gain must correspond with the defendant's loss. This chapter discusses the privity principle and exceptions to this principle, including restitutionary claims to vindicate the claimant's proprietary rights, restitutionary claims founded on wrongdoing, agency, and the principle of interceptive subtraction. The issue of whether non-money benefits received by the defendant were received at the claimant's expense is also considered.
Kenneth McK Norrie
- Published in print:
- 2011
- Published Online:
- September 2015
- ISBN:
- 9781845861193
- eISBN:
- 9781474406246
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9781845861193.003.0033
- Subject:
- Law, Family Law
Discusses the English House of Lords decision of Stack v Dowden [2007] 2 AC 432 which was a claim for property division between ex-cohabitants. The case was decided under the common law since England ...
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Discusses the English House of Lords decision of Stack v Dowden [2007] 2 AC 432 which was a claim for property division between ex-cohabitants. The case was decided under the common law since England lacks the legislation that Scotland has in the Family Law (Scotland) Act 2006. Title was in joint names but the claimant sought a division of the property other than 50-50. The House of Lords discusses the underlying principles to deal with such a claim. The commentary also discusses two Scottish claims that are made under the concept of unjustified enrichmentLess
Discusses the English House of Lords decision of Stack v Dowden [2007] 2 AC 432 which was a claim for property division between ex-cohabitants. The case was decided under the common law since England lacks the legislation that Scotland has in the Family Law (Scotland) Act 2006. Title was in joint names but the claimant sought a division of the property other than 50-50. The House of Lords discusses the underlying principles to deal with such a claim. The commentary also discusses two Scottish claims that are made under the concept of unjustified enrichment
