Private Law Theory

ABSTRACT
The paper considers the ‘right of exclusion’ theory of private property, which equates a property right with a right against interference, correlated with a duty of others against interference, with particular reference to intangible property. It is argued that a right against interference is important but cannot fully explain private property, in particular intangible property. More fundamentally, an owner has a right to the benefit of the property. This right is necessarily presupposed by the right against interference. It also generates a claim to recover property invalidly transferred and a claim for payment for the unauthorised use of property. These claims are not claims for compensation for loss caused by interference; they are claims to recover the benefit of property to which C is entitled, and they directly protect C’s investment in the property rather than his right against interference. This approach explains how intellectual property and contractual rights, including bank accounts, can be understood as property. The law ought to distinguish between claims for compensation in respect of the wrongful interference and claims to recover property invalidly transferred. The law of conversion fails to do this and this was the main reason for the difficulties that arose in the House of Lords in OBG v Allan with respect to the protection of contractual rights as property.

Jaffey, Peter, Private Property and Intangibles (January 1, 2022).