Object: Something you can have rights in, sold, transferred, use, destruction. Requires human agency – no animation.
Subjects: People, capacity to think
Replevin:recover of possession of a disputed object pending outcome of dispute. Grey and Symes
Trover – right to recover someone who has found your goods and refuses to return. Either recover chattel or award profits. Clifton v Kane This gets more complicated with things like slavery, marital relationships, bodily rights
Star Trek example:
Subject to object to subject: initially accepted as subject with decorations, then dismantled and turned off, and finally accepted as a subject with the freedom to choose.
A subject is one who can control an object (has free will), and object is what is controlled (owned) by a subject. Refer to Hegel, and that subjects have the capacity to think.
Subjects and Objects of Property Law : The Deed of a Sale of a Slave Sold at Winder, N. S. in 1779. P109
A slave named Mintur is sold by Joseph Northrup of Falmouth to John Palmer of Windsor.
Mintur is an object, seen as 2/3 of a person… so is the last third of the objective part you can own.
K. J. Gray and P. D. Symes: “A Brief History of the Doctrine of Conjugal Unity” p. 110 – Women made objects after marriage
The old CML LAW doctrine was that upon union of a man and a woman, their legal personalities merged and became one. This was called conjugal unity.
Conjugal unity:
Is of Judaeo-Christian origin: husband and wife become one-flesh.
Divorce was impossible: marriage forged an indissoluble link under God which no earthly power could break.
Was eventually used as a means of domination and oppression.
Blackstone: “the very being or legal existence of the woman is suspended during the marriage.”
Pollock and Maitland: “…not so much a fusion…but (the relationship) was more in the nature of a profitable guardianship (for the husband).”
Hyde J. in Manby v Scott: The wife was a mere appendage or extension of her husband’s body.
The husband had a writ of ravishment or trespass against a seducer of his wife.
In Canada, the Charter has abolished this anachronistic legal concept.
Some provinces have extended the action for loss to be gender neutral: both a husband or wife can sue for damages in the event of the loss of care and companionship (Newfoundland, Alberta, Ontario).
B.C has taken an opposite position, repudiating such doctrine on the basis that the union of marriage does not amount to any property rights.
The woman is thus moving between subject and object, has some subject rights… but is an object in many respects until suffrage is complete
Moore v Regents of the UCLA, California, 1990; 113 – Rights in excised body tissue denied (when modified)
Facts: Moore (M) of Seattle, WA, has a rare form of cancer, hairy-cell leukemia and is treated several times by the Medical Center of the University of California in L.A. between 1976 and 1983 for he is told that such visits were necessary and required for his health and based upon the trust inherent of the physician-patient relationship. Meanwhile his doctors were using M’s blood and removed spleen to do research that eventually lead to a patent and subsequent licensing agreement with Sandoz. M had no knowledge of the work done using his removed organs.
Issue: Are a person’s body parts personal property? [NO] What is the extent of the doctor-patient fiduciary duty? [Limited]
Rule: It is up to the legislator to decide if the law of property applies to body parts. Doctors owe a fiduciary duty to obtain their patient’s informed consent regarding R&D work using the patient’s body parts. Failing this fiduciary duty does not lead to disgorgement of profits arising from R&D activities for the patient’s benefit.
Failure to obtain the patient’s consent - results in a breach of fiduciary duties and give rise to a cause of action.
The doctor has conflicting loyalties:
Treat the patient or,
Profit from research done using the patient’s organs.
M cannot claim under the tort of conversion because this is a novel claim:
Conversion = a tort that protects against interference with ownership interest in personal property
1 – Conversion under existing law, 2 – Should conversion liability be extended.
Never been used in this context.
Regulations concerning the disposal of biohazards implies that M did not own his body parts once they were removed.
On the other hand, the statute does not permit scientific use contrary to the patient’s expressed wish.
M’s body parts are not “property” (for policy reasons).
The tort of conversion liability should not be extended for it would be anti-utilitarian:
This is a strict liability tort.
Extending the tort might mean that pharma companies might stop R&D activities for fear of being sued by patients claiming that their organs are being used against their will.
Performing title searches on body parts would be difficult.
The patient’s rights arise from the breach of fiduciary duty not from the tort of conversion.
Balancing the interests of patients in their body parts versus pharma R&D activity is best decided by the Legislator.
M’s damages can be claimed under the breach of fiduciary duty and lack of informed consent however, he does not have a right to disgorge profits because has fails to meet the requirements of the tort of conversion.
Arabian, J (concurring):
Human tissue is not a fungible article of commerce.
Leave it up to the legislator to decide on the issue of whether body parts should be treated as personal property.
Broussard, J (concurring and dissenting):
The doctor was disloyal and had a conflict of interest.
He may have removed spleen for no medical reason but only for his own personal gain.
Therefore, the patient has a right to sue under the tort of conversion because the property was removed from his body, not taken from the biohazard waste. (for conversion)
It is not proven that pharma R&D will decline if the tort of conversion is allowed.
Mosk, J (dissenting):
M should be allowed to participate in the profits.
M’s body was being harvested for its blood and organs. (for conversion)
Application of the law of conversion does not mean pharma R&D will be hindered.
Proper recordkeeping (i.e. keeping title) would ensure that patients have provided their consent and protect pharma’s from being held liable.
This is just another form of slavery, and treats the human body as a commodity.
The parties are not in an equal bargaining position and the person furnishing the tissue should be justly compensated so that unjust enrichment (enrichment where one person benefits from someone else’s property) is prevented.
But for the patient’s cells, the medical value of the bioengineered cells would be negligible.
In addition, he completely dissociates himself of the scientific analysis of his colleagues: they are not competent to explain points of medical science.
People did not consent to their genes being used, they want a cut. But are all products of the body then a commodity?
Judge
Justification used for/against liability
Panelli + 4
1. Labour – took cells and produced a cell line – Patent.
2. Utilitarian argument – greatest good comes from such research using excised cells.
3. Economics – Allowing liability for conversion would amount to disincentives for researchers to engage in research and earn economic benefits from their work.
Broussard
1. Freedom and Personality – It is a demonstration of one’s personality as to how the excised bio-material ought to be used.
Mosk
1. Freedom and Personality – Demonstration of one’s individual personality as to how cells be used and to be able to reap benefits from their use. Without Moore, no cell line could be produced.
2. “every individual has a legally protectable property interest in his own body and its products.”
It is quasi-property. It is not property per se but because of the nature of the parties and the dispute, news is property. Normally, it would be part of the common domain. Here, it is quasi-privatized.
Victoria Park v Recreation Grounds Ltd.
Is a spectacle property?
No.
Although it provides revenue, the right to revenue from the spectacle does not trump viewing rights, even though VP is seeking to profit from where it has not sown.
Mintur
Slavery
Distinction between subject and object.
Moore v Regents
Are harvested body parts property?
No.
Because the patient consented to the removal of his spleen and by statute, this is then common property. Problem here is there was bad faith and breach of FD by the doctors (duty to patient and no self-interest). Courts find that the FD breach does not allow disgorgement because there is no underlying tort (that is BS) since you cannot convert body parts in personal property.
Breathing life into dead capital, The Economist, 2004, p128 – importance of property rights; possession v title
African countries lack a secure system of property rights. The notion of title is lacking because registries are ill kept and the only proof of ownership in land is the say-so of the village chief. Thus, land in Africa is considered “dead-capital” because it cannot be used as security for asset-backed lending. The estimated value of this dead capital is $1 trillion, nearly 3x the sub-Saharan Africa’s annual gross domestic product (GDP).
There is violence in the absence of clear title. Different people think land is theirs for different reasons. In Cote d’Ivoire, the central government invited workers from neighbouring Burkina-Faso to harvest land while the inhabitants had migrated to cities to work in factories. When the economic bubble burst, the migrants returned to their land, only to find it taken by the Burkinabe planters, leading to a civil war.
This article highlights the difference between possession and property and the importance of a title system and land registry.
New frontiers: Chinese gamer sentenced to life, 132 – Value is all that is required for some to want property right.
Are virtual things property?
A gamer stabs his friend when he learns that the friend sold the virtual sword he lent him. There is no law in China to protect virtual property.
On one hand, virtual things are property because people spend time and money to acquire them.
On the other hand, these things are just data provided by game companies.
In Holland, a teenager is arrested for stealing virtual furniture. Furniture is deemed property because it is paid for with money.
From lowly orcs to Grand Wizards of the Dark Realm, China’s online gamers are storming castles and expanding their domain. The government however, is playing too. P134
A hodge podge of stories:
Chinese men and women are hired by online gamers for $0.30/hr that don’t have enough time to play or want to “level up” their characters.
A Chinese gamer wins the restitution of his virtual property against a hacker that stole it.
Some people sell their virtual property online in exchange for real cash.
Others use their virtual currency to buy real-world goods.
