75.
property right to tangible goods should eschew metaphors and avoid conflation of different juristic concepts by being expressed simply as the right to exclude others or, by a correlative, as a duty upon those others not to interfere physically with the chattel. For chattels, this is the "necessary and sufficient condition of identifying the existence of property"[1].
205 Even despite the (powerfully criticised[2]) bundle of rights and concentration of power metaphors, the Supreme Court of the United States has still characterised the right to exclude others as "one of the most essential sticks in the bundle of rights"[3]. Indeed, even the most vociferous supporter of the "bundle of rights" has described the right to possession – that is, the right to control physical access – as "the foundation on which the whole superstructure of ownership rests"[4]. Similarly, in the passage by Professor Gray from which members of this Court borrowed the slogan of a "legally endorsed concentration of power"[5], the power in relation to a thing was described as the "control over access" of the thing and the ability to exclude others from it[6], with Gray later adding that "[b]eyond the irreducible constraints imposed by the idea of excludability, 'property'
- ↑ Merrill, "Property and the Right to Exclude" (1998) 77 Nebraska Law Review 730 at 731.
- ↑ For instance, Penner, "The 'Bundle of Rights' Picture of Property" (1996) 43 UCLA Law Review 711; Merrill, "Property and the Right to Exclude" (1998) 77 Nebraska Law Review 730; Smith, "Property Is Not Just a Bundle of Rights" (2011) 8 Econ Journal Watch 279; Douglas and McFarlane, "Defining Property Rights", in Penner and Smith (eds), Philosophical Foundations of Property Law (2013) 219.
- ↑ Kaiser Aetna v United States (1979) 444 US 164 at 176.
- ↑ Honoré, "Ownership", in Guest (ed), Oxford Essays in Jurisprudence (1961) 107 at 113.
- ↑ Yanner v Eaton (1999) 201 CLR 351 at 366 [18]; Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230–231 [44].
- ↑ Gray, "Property in Thin Air" (1991) 50 Cambridge Law Journal 252 at 299.
Ltd v W C Penfold Ltd (2001) 40 ACSR 319 at 325–326 [44]; Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2009] QB 22 at 32 [15]; Bride v Shire of Katanning [2013] WASCA 154 at [72].
