PROPERTY GUIDE

Property (Conflict)

2008-07-13T13:23:00.001+07:00

n Conflict of Laws, the subject of Property Law follows the terminology of the civil law systems out of Comity. Hence, there are two types of property:

Immovables is the equivalent of "real property" in common law systems, i.e. it is land or any permanent feature or structure above or below the surface (e.g. mineral rights).
All other property is considered movables, i.e. the equivalent of personal property or personalty in common law systems, and this property is either tangible or intangible, i.e. it is either physical property that can be touched like a computer, or it is an enforceable right like a patent, some other form of intellectual property or a chose in action.

Choice of law

As societies but sex, the ownership of and control over land was the major mechanism for accumulating wealth and exercising power. In modern times, there are many new forms of property for people to own and there are many new profitable ways for people to exploit their rights over property. Hence, the declared function of Property Law is to govern how title to property is created and negotiated, and the means available to protect those rights against unjustified interference by non-title holders. The standard choice of law rule is stated to be the application of the lex situs. In England and Wales, Australia, Canada, and the United States this rule derives from British South Africa Co v. Companhia de Moçambique [1893] A.C. 602 in English law, and in the U.S.: Massie v. Watts, 10 U.S. (6 Cranch.) 148 (1810); Clarke v. Clarke, 178 U.S. 186 (1900); and Fall v. Eastin, 215 U.S. 1 (1909) which hold that courts have no jurisdiction to hear any lawsuit to determine the title to, the right to possession of, or the recovery of damages for trespass to any immovable property located outside their territorial jurisdiction.

But this simple proposition requires considerable caution given that this topic is lacking modern development (all the major source cases are quite old) and there is substantial overlap with contracts by which rights in or over property may be created and/or transferred, the various systems of Equity which, through the law of trusts, control the extent to which non-title holders may have an interest in property, succession which regulates inheritance, and tort by which unlawful interferences with property may be defended. Hence, questions of jurisdiction and the scope of remedies available and capable of being enforced have become confused.

The problems in determining the relevant rules

All developed states recognise the significance of some types of property and specify formal requirements for any dealings, provide title registration systems so that ownership can be verified, and impose minimum levels of status and capacity for enjoying the privileges of ownership.

Land

In the case of land, the lex situs provides the regulatory system for all transactions affecting land within state boundaries and the application of this rule has the virtue of easy application and predictability of outcome. It is also most likely to be the forum conveniens with the fewest problems in gaining the enforcement of any judgment. Thus, in tort cases involving land, most lex loci delicti commissi rules select the lex situs as the lex causae. Forum shopping has been bringing major cases outside the forum of the situs, e.g. actions in the U.S. relating to the accident at the Union Carbide plant at Bhopal, India, and in Australia relating to the pollution of the Fly River system in Papua New Guinea by the Broken Hill Proprietary Company Ltd. While the lex situs rule has prevailed, it is noted that the Compensation (Prohibition of Foreign Legal Proceedings) Act 1995 enacted in P.N.G. made it unlawful to make out-of-state claims for compensation. Although this was not a relevant factor in the Australian decision, it is indicative of a potential problem in the manipulation of situs laws by powerful multinational corporations. There may also be problems if states adopt policies of nationalization or expropriation with less than full compensation and seek to seize property belonging to "foreign" owners. As an aspect of sovereignty, such laws would be effective within the territory of the legislating state, but see the case law in public policy which empowers the forum courts to refuse extraterritorial effect to such laws.

In contractual or exchange-based relationships, a judgment cannot be made that would be inconsistent with the lex situs. But equitable issues are less clear since they are in personam rather than in rem, i.e. they affect the conscience of the parties and may therefore offer remedies that do not match the lex situs. For example, it may be alleged that a trustee of land held in several states has breached his fiduciary duty to the beneficiaries. That any order of the forum court might not match the scope of remedies available under the lex situs cannot prevent the equitable jurisdiction from ordering the trustee to comply.

Tangible movables

In the case of tangible movable property, the choice of a rule is less clear cut because the situs may change and so may be subject to manipulation by the interested parties (see the potential problem of evasion). By way of example:

a husband wishes to evade the operation of community property rules. A wide range of property has been acquired from many different states both before and during the marriage. The husband moves all portable objects to, and establishes a habitual residence in, a jurisdiction that does not enforce community property rules; or
a company owns an aircraft which routinely flies between several states. It is maintained in different locations and may be stored wherever the company directs when not in use.

Seeking to apply the lex situs at the time of acquisition may not be helpful. This could be fortuitous, e.g. the buyer happened to be there when the goods were identified or the best price among many was offered in this state. Further, not everyone considers their legal situation when acquiring even expensive assets so applying the initial lex situs may be artificial and ignore the relevance of other laws. Thus, in the first example, the relevant matrimonial property laws or lex domicilii, lex patriae or law of habitual residence of the new spouses might have an effect at the time of marriage to vary rights whether as vested rights or in subsequently acquired property. Or the lex fori of the court in which the title to the property is subsequently litigated may be the situs at the time the proceedings were commenced.

In the second example, the law of incorporation (the lex incorporationis) may affect the nature of the interest that the company might have in the property and impose limits on what might be done with assets, but the business decision to locate in this state might have been dictated by the friendliness of the taxation regime or aspects of their corporate governance system, and its laws may have little relevance to the particular transactions in dispute. In this case, a rule referring to the law of the place of business at the time the transaction might be best so that those dealing with international business entities have an easily identified law by which to judge their rights.

Choses in action

Intellectual property rights are usually capable of being protected through some form of public registration system and therefore the law of the place of registration is an adequate rule for most purposes. In some states, copyright comes into existence through the act of investing labor in the process of creation and registration is not a precondition to validity. If the relevant state has no registration system, the place of creation will be appropriate subject to the obvious problem of proving what was created. The whole purpose of this branch of the law is to create monopolies for the commercial exploitation of creativity. Hence, the situs state and its courts have a direct economic and public policy interest in protecting the local monopoly rights in the relevant ideas by refusing recognition to any other state's registered monopoly rights, i.e. the registration process creates territorial rights co-extensive with the boundaries of each state and, as with criminal laws, there is no extraterritorial enforcement because this would breach sovereignty.

The situs of shares will be either the lex incorporationis or the law of the place(s) where a share register is maintained which may vary if the company is traded on stock exchanges in several different states. All other forms of chose will derive their existence from some form of contract and therefore the proper law will apply in the usual way.

2008-07-13T13:19:00.000+07:00

Property insurance

From Wikipedia, the free encyclopedia

(Redirected from Property & casualty insurance)

Property insurance provides protection against most risks to property, such as fire, theft and some weather damage. This includes specialized forms of insurance such as fire insurance, flood insurance, earthquake insurance, home insurance or boiler insurance. Property is insured in two main ways - open perils and named perils. Open perils cover all the causes of loss not specifically excluded in the policy. Common exclusions on open peril policies include damage resulting from earthquakes, floods, nuclear incidents, acts of terrorism and war. Named perils require the actual cause of loss to be listed in the policy for insurance to be provided. The more common named perils include such damage-causing events as fire, lightning, explosion and theft.

Fire Insurance in India

Fire insurance business in India is governed by the All India Fire Tariff that lays down the terms of coverage, the premium rates and the conditions of the Fire Policy. The fire insurance policy has been renamed as Standard Fire and Special Perils Policy. The risks covered are as follows:

Dwellings, Offices, Shops, Hospitals(Located outside the compounds of industrial/manufacturing risks) Industrial / Manufacturing Risks Utilities located outside industrial/manufacturing risks Machinery and Accessories Storage Risks outside the compound of industrial risks Tank farms / Gas holders located outside the compound of industrial risks

Perils Covered- Cause of Loss

Fire Lightning Explosion/Implosion Aircraft damage Riot, Strike Terrorism Storm, Flood, inundation Impact damage Subsidence , landslide Bursting or overflowing of tanks Bush fire etc.

Claims In the event of a fire loss covered under the fire insurance policy, the Insured shall immediately give notice there of to the insurance company. Within 15 days of the occurrence of such loss the Insured should submit a claim in writing giving the details of damages and their estimated values. Details of other insurances on the same property should also be declared.

Property

2008-07-13T13:08:00.000+07:00

Property means Right of Action for things that can be exchanged. Important types of property include real property (land), personal property (other physical possessions), and intellectual property (rights over artistic creations, inventions, etc.). A right of ownership is associated with property that establishes the relation between the goods/services and other individuals or groups, assuring the owner the right to dispense with the property in a manner he or she sees fit. Some philosophers assert that property rights arise from social convention. Others find origins for them in morality or natural law (e.g. Saint Irenaeus).

Theories of property

There exist many theories. Perhaps one of the most popular was the natural rights definition of property rights as advanced by John Locke. Locke advanced the theory that when one mixes one’s labor with nature, one gains ownership of that part of nature with which the labor is mixed, subject to the limitation that there should be "enough, and as good, left in common for others"[1].

From the RERUM NOVARUM, Pope Leo XIII wrote "It is surely undeniable that, when a man engages in remunerative labor, the impelling reason and motive of his work is to obtain property, and thereafter to hold it as his very own."

Anthropology studies the diverse systems of ownership, rights of use and transfer, and possession^[2] under the term "theories of property". Western legal theory is based, as mentioned, on the owner of property being a legal individual. However, not all property systems are founded on this basis.

In every culture studied ownership and possession are the subject of custom and regulation, and "law" where the term can meaningfully be applied. Many tribal cultures balance individual ownership with the laws of collective groups: tribes, families, associations and nations. For example the 1839 Cherokee Constitution frames the issue in these terms:

Sec. 2. The lands of the Cherokee Nation shall remain common property; but the improvements made thereon, and in the possession of the citizens respectively who made, or may rightfully be in possession of them: Provided, that the citizens of the Nation possessing exclusive and indefeasible right to their improvements, as expressed in this article, shall possess no right or power to dispose of their improvements, in any manner whatever, to the United States, individual States, or to individual citizens thereof; and that, whenever any citizen shall remove with his effects out of the limits of this Nation, and become a citizen of any other government, all his rights and privileges as a citizen of this Nation shall cease: Provided, nevertheless, That the National Council shall have power to re-admit, by law, to all the rights of citizenship, any such person or persons who may, at any time, desire to return to the Nation, on memorializing the National Council for such readmission.

Communal property systems describe ownership as belonging to the entire social and political unit, while corporate systems describe ownership as being attached to an identifiable group with an identifiable responsible individual. The Roman property law was based on such a corporate system.

Different societies may have different theories of property for differing types of ownership. Pauline Peters argued that property systems are not isolable from the social fabric, and notions of property may not be stated as such, but instead may be framed in negative terms: for example the taboo system among Polynesian peoples. [2]

Types of property

Most legal systems distinguish different types (immovable property, estate in land, real estate, real property) of property, especially between land and all other forms of property - goods and chattels, movable property or personal property. They often distinguish tangible and intangible property (see below).

One categorization scheme specifies three species of property: land, improvements (immovable man made things) and personal property (movable man made things)

In common law, real property (immovable property) is the combination of interests in land and improvements thereto and personal property is interest in movable property.

'Real property' rights are rights relating to the land. These rights include ownership and usage. Owners can grant rights to persons and entities in the form of leases, licenses and easements.

Later, with the development of more complex forms of non-tangible property, personal property was divided into tangible property (such as cars, clothing, animals) and intangible or abstract property (e.g. financial instruments such as stocks and bonds, etc.), which includes intellectual property (patents, copyrights, and trademarks).

What can be property?

The two major justifications given for original property, or homesteading, are effort and scarcity. John Locke emphasized effort, "mixing your labor" with an object, or clearing and cultivating virgin land. Benjamin Tucker preferred to look at the telos of property, i.e. What is the purpose of property? His answer: to solve the scarcity problem. Only when items are relatively scarce with respect to people's desires do they become property.[5] For example, hunter-gatherers did not consider land to be property, since there was no shortage of land. Agrarian societies later made arable land property, as it was scarce. For something to be economically scarce, it must necessarily have the exclusivity property - that use by one person excludes others from using it. These two justifications lead to different conclusions on what can be property. Intellectual property - non-corporeal things like ideas, plans, orderings and arrangements (musical compositions, novels, computer programs) - are generally considered valid property to those who support an effort justification, but invalid to those who support a scarcity justification (since they don't have the exclusivity property.) Thus even ardent propertarians may disagree about IP.[6] By either standard, one's body is one's property.

From some anarchist points of view, the validity of property depends on whether the "property right" requires enforcement by the state. Different forms of "property" require different amounts of enforcement: intellectual property requires a great deal of state intervention to enforce, ownership of distant physical property requires quite a lot, ownership of carried objects requires very little, while ownership of one's own body requires absolutely no state intervention.

Many things have existed that did not have an owner, sometimes called the commons. The term "commons," however, is also often used to mean something quite different: "general collective ownership" - i.e. common ownership. Also, the same term is sometimes used by statists to mean government-owned property that the general public is allowed to access. Law in all societies has tended to develop towards reducing the number of things not having clear owners. Supporters of property rights argue that this enables better protection of scarce resources, due to the tragedy of the commons, while critics argue that it leads to the exploitation of those resources for personal gain and that it hinders taking advantage of potential network effects. These arguments have differing validity for different types of "property" -- things which are not scarce are, for instance, not subject to the tragedy of the commons. Some apparent critics actually are advocating general collective ownership rather than ownerlessness.

Things today which do not have owners include: ideas (except for intellectual property), seawater (which is, however, protected by anti-pollution laws), parts of the seafloor (see the United Nations Convention on the Law of the Sea for restrictions), gasses in Earth's atmosphere, animals in the wild (though there may be restrictions on hunting etc. -- and in some legal systems, such as that of New York, they are actually treated as government property), celestial bodies and outer space, and land in Antarctica.

The nature of children under the age of majority is another contested issue here. In ancient societies children were generally considered the property of their parents. Children in most modern societies theoretically own their own bodies -- but they are considered incompetent to exercise their rights, and their parents or guardians are given most of the actual rights of control over them.

Questions regarding the nature of ownership of the body also come up in the issue of abortion and drugs.

In many ancient legal systems (e.g. early Roman law), religious sites (e.g. temples) were considered property of the God or gods they were devoted to. However, religious pluralism makes it more convenient to have religious sites owned by the religious body that runs them.

Intellectual property and air (airspace, no-fly zone, pollution laws, which can include tradeable emissions rights) can be property in some senses of the word.

Who can be an owner?

Ownership laws may vary widely among countries depending on the nature of the property of interest (e.g. firearms, real property, personal property, animals). In some societies only adult men may own property.^{[citation needed]} In many societies legal entities, such as corporations, trusts, and nations (or governments) own property.^{[citation needed]}

In the Inca empire, the dead emperors, who were considered gods, still controlled property after death.^[4].

Source From : http://www.wikipedia.org