Province and Function of Property

This subject is not offered in 2013.

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

This subject will explore the nature of proprietary interests at common law, the distinction between proprietary and non-proprietary interests and the practical and commercial significance of this distinction. There is no consensus among lawyers as to the necessary or sufficient attributes of a proprietary interest whether in land or in personal property, however there are overlapping factors that figure prominently in most if not all proprietary interests. The course will examine these factors and the extent to which they enable an interest to be characterised as proprietary. The distinction between proprietary and non-proprietary (including contractual) interests both at law and in equity is critical to an analysis of the rights and obligations of the holder of the interest, the commercial and noncommercial uses to which it may be put, the competition between interests and the remedies applicable where it is infringed.

Principal topics will include:

• The nature and concept of property
• Historical development of proprietary interests in land, including the development of the trust and of equitable proprietary interests
• The cultural and economic significance of proprietary interests in feudal and industrial societies
• Historical development of personal property interests
• Modern justifications for private property
• The distinction between proprietary and non-proprietary interests, including contractual interests
• The province of modern property interests, including rights to human body parts and tissues, reputation and confidential information
• The sphere of enforceability of proprietary interests, including competition between legal and equitable property and between proprietary and non-proprietary interests
• Proprietary remedies.

A student who has successfully completed this subject will:

• Have a specialised understanding of the distinction between proprietary and non-proprietary interests at law and equity;
• Understand the practical, cultural and commercial significance of this distinction;
• Appreciate the influence of economic and scientific developments on modern concepts of property;
• Understand the tension between the protection of property rights and civil and human rights in modern society;
• Have developed the analytic skills to formulate, understand and evaluate policies to address this tension;
• Be able to identify the relevant legal issues in complex fact situations involving competition between proprietary and non-proprietary rights and resolve that competition;
• Understand the distinction between proprietary and non-proprietary remedies and the circumstances in which these remedies are appropriate.

Class participation (10%)

Take-home examination (90%) (4–7 October)

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Visit the Melbourne Law Masters website for more information about this subject.

This subject is not available as a breadth subject.