Difference between “Corporeal Property” and “Incorporeal Property” – Explained!

The term “property” is used in different senses. In its most comprehensive sense it includes those things, whether animate or inanimate, which belong to a person. It includes all legal rights of whatever description. In this sense a person’s life, liberty, reputation and estate constitute his property.

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This usage has become obsolete and finds place only in the works of the older jurists like Blackstone, Hobbes and Locke.

In its narrower sense it means only proprietary rights but not personal rights. Thus, land, chattels, shares, debts, copyright, etc., constitute one’s property but not his life, liberty or reputation. In this sense, property includes any right, which has an economic value.

In its oldest and narrower sense the term “property” includes nothing more than corporeal property, i.e., the ownership of material objects alone. Bentham refers to such a usage.

In jurisprudence the term “property” is, however, used to refer to only proprietary rights in rem, that is to say, such proprietary rights only as are available against the world at large. This is the meaning adopted by Salmond.

In this sense a patent or a copyright is property, but not so a debt or the benefit of a contract. Proprietary rights which are rights in personam are distinguished as obligations. That part of the law which deals with the proprietary rights in rem is the Law of Property.

Corporeal and Incorporeal Property:

Corporeal property is the right of ownership in material things, such as land, chattel, etc. Incorporeal property are other proprietary rights in rem. Incorporeal property is itself of two kinds, viz., (1) jura in repropria, i.e., propri­etary rights over immaterial things, e.g., patents, copyrights and trademarks, and (2) jura in re aliena (encumbrances) whether over material or immaterial things, e.g., leases, mortgages and servitudes.

Ownership of Corporeal Property:

Salmond defines the right of ownership of a material thing as the general, permanent and inher­itable right of user of the thing.

In the first place, the ownership of a material object is a right to the general or aggregate use of the thing. The owner of a material object is entitled to its use except in so far as it is restricted by natural limits or restrictions arising from the effect of encumbrances.

In the second place, the right of ownership is a permanent right existing so long as the material thing is in existence.

And, lastly, the ownership of a material object is inheritable and the right survives after his death.

Movable and Immovable Property:

Corporeal property is of two kinds: movable and immovable. Thus, land is immovable prop­erty, while chattels denote movable property.

Immovable properly, according to Salmond, includes the following five elements: (1) A determinate portion of the earth’s surface; (2) The ground beneath the surface down to the centre of the earth; (3) A reasonable space above the surface necessary and sufficient for the free beneficial enjoyment of the surface land;

(4) All objects which are on or under the surface in its natural state, e.g., minerals and vegetation forming part of the land; and (5) All things attached to the earth, i.e.; all objects placed by human agency on or under the surface, with the intention of permanent annexation, e.g., buildings, doors, fences.

Real and Personal Property:

Corporeal property is divided into real and personal property. The former comprises all rights over land; the latter comprises all other proprietary rights, whether in rem or in personam.

The distinction between real and personal property is identical with immovable and movable property though the former has an his­torical origin. In Roman law real property was such property that could be recovered by a real action. A real action in English Law is one in which a res may be specifically enforced, and land was the only res which could be so enforced. Hence land was regarded as real property and movable as personal property.

Although, strictly speak­ing, the distinction between immovable and movable property does not exactly correspond to real and personal property which is a result of feudal ideas, they are now almost interchangeable terms.

Immaterial Forms of Property:

The subject-matter of a right of property is either a material or immaterial thing. The law of property mostly relates to a material thing. Professor Salmond observes that the only immaterial things which are recognised by law as the subject-mat­ter of rights are the various immaterial products of human skill and labour.