ABSTRACT
How do courts decide whether property might exist in a thing, be it tangible or intangible, moveable or immoveable? Of course, in many cases, the answer is dictated by extensive pre-existing law, both judicially and legislatively created. That is certainly the case when a court is asked to determine whether property exists in land. The doctrines of tenure and estates and the legislative Torrens modifications provide the legal framework, with disputes usually involving no more than determining whether a given set of facts satisfy the substantive requirements of an existing proprietary interest. Cases involving personal property perhaps require slightly more judicial innovation, although most of those, too, usually have readily available legal solutions that provide at least a partial answer. Still, some cases raise the ‘property question’, where judges are called upon to decide an entirely novel dispute about whether property exists in a good, a resource, or an item of social wealth. Cryptocurrency, for instance, represents a topical example of the property question.
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Babie, Paul T and Nikias, Kyriaco, Legislators, Judges, and the Content of Property (February 12, 2021). (2020) 28 Australian Property Law Journal, University of Adelaide Law Research Paper No 2021-03.
First posted 2021-02-13 09:34:20
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