Relativity of Title and Causa Possessionis
Chapter in Henry Smith & J.E. Penner, eds., The Philosophical Foundations of Property Law (OUP 2013)
17 Pages Posted: 6 Jul 2014
Date Written: July 3, 2014
It is often said nowadays that to any dispute between those who claim possessory rights in a thing, the common law proposes a clear and simple answer: ‘first in time, stronger in right’. Whether the dispute is between a ‘true owner’ and a finder; between two finders; between a bailee and a thief; between two thieves; or between any other putative possessors, the same simple rule claims to tell us whose right is superior. This rule is attractive in its simplicity — temporal priority is all that matters when deciding these disputes — but it is also surprising in its disregard for all other possible considerations. Shouldn’t the law care about the type of possessory claims we are concerned with? Doesn’t it matter (for reasons going beyond the temporal priority of his claim) that one party is in possession as the true owner, or only as a thief, etc.? And don’t the prior interactions between the parties matter to the law, as well? For instance, shouldn’t it matter whether or not one party put the other party into possession in the first place? All these considerations seem to have moral salience when considering who should be entitled to possess a thing. It would be odd if the law took no notice of them.
In this paper, I argue that “first in time, stronger in right” fits best with a view of ownership, and all other rights to possess, as identical rights to exclude. I develop normative, conceptual and doctrinal arguments for another view of the relativity of title that is consistent with a subtler and richer account of ownership as a position of exclusive authority (one that is qualitatively different than other rights to possess). On this account, we resolve disputes among putative possessors in terms of their ‘causa possessionis’ — the normative ground of their claims to possession — and not merely in terms of the temporal priority of their claims. I argue that first in time is not always stronger in right, for these other considerations may sometimes trump temporal priority. Even when the ‘first in time’ rule generates the right answer, it does so in a way that obscures the larger normative framework that explains why that is the right answer.
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