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“Ownership” “Assets” and Transferability of “Property Rights”*
Published online by Cambridge University Press: 04 July 2014
Extract
1. The connection between the proprietary nature of a right and its transferability was discussed at length in my article, “Some Fundamental Concepts of Property Law: A Critical Survey”. The view expressed there was criticised by Prof. Tedeschi in two articles: the first, “On the Right of Preemption in Land”, and the second — “Property and Transferability — Ownership of Organs Taken from a Living Person”. The latter included criticism of certain things I had written in my article, “Organs as Assets”, in relation to the connection between an object constituting an “asset” and it being “transferable”.
According to my approach, transferability is a central feature of a property right, and of the nature of a thing as an “asset”. Prof. Tedeschi, however, believes otherwise.
- Type
- Bioethics and the Law — Organ Transplants
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993
References
1 (1986) 21 Is. L.R. 529.
2 (1981) 36 HaPraklit 152.
3 (1989) 38 HaPraklit 281. See the English version of this article in this issue, p. 624. All further references will be to the English version.
4 See my article in this issue, p. 610.
5 Supra n. 1, at 552–553.
6 Wurtheimer v. Harari (1982) 36(iii) P.D. 253, at 269.
7 Supra n. 3, at 640.
8 Ibid., at 643.
9 Ibid., at 630.
10 As emerges from secs. 3(2) and 6 of the Law (37 L.S.I. 132). Also see reg. 12 of te Museum Regulations, 1984.
11 Tedeschi, supra n. 3, at 627.
12 In my article, “Organs as Assets” (supra n. 4, at 610), I say that “assets” include only things of which ownership is possible and which can be assessed in monetary terme. In other words, ownership of a thing which is not an “asset” is possible (when the thing cannot be assessed in monetary terms).
13 Supra n. 3, at 638.
14 Ibid., at 628.
15 Ibid., at 635.
16 Ibid., at 629, n. 17.
17 Ibid., at 632.
18 Ibid., at 636.
19 Supra n. 4, at 611.
20 Supra n. 3, at 627.
21 Louisiana Civil Law Treatise (2nd ed., 1980) 82–82, 33. See also Noyes, C. R., The Institution of Property (Longmans Green & Co., 1936) 412Google Scholar; Planiol, et Ripert, , Traité pratique de droit civil francais (Paris, 2nd ed., 1952), vol. III, p. 226Google Scholar; Honoré, A.M., “Ownership”, in Gues, A.G., (ed.), Oxford Essays in Jurisprudence (1961) 130.Google Scholar Tedeschi, who in general disagrees with the transferability requirement, is particularly critical (in his said article — supra n. 3) of the contention that it is not enough to be able to give something as a gift in order that it be considered as property and an asset, and that it must be transferable for money (the element of convertability, in Levontin's terms). The cases to which Tedeschi relates in his criticism, where transferability has usually been curtailed and the law allows only transfer by way of gift, are exceptional and rare. I will therefore not dwell on this matter. (An example, which is not certain either, of a situation to which Tedeschi is referring, can be found in the Wild Animals Law, 1955, sec. 8, which prohibits sale of a wild animal to a person who does not have a license to trade in such animals. It may, therefore, be possible to conclude that whereas transferability for consideration has been ruled out, the possibility of giving wild animals as gifts has not). Furthermore, even in rare cases in which the law only allows for a transfer for no consideration, transfer for consideration may well take place in practice, so that these situations, even in those rare cases in which they are possible, will be transitional only (I discussed this anticipated development, i.e. of a transition from transferability for no consideration to transfer-ability for consideration, in connection with donations of blood, in my article “Organs as Assets”, supra n. 3, at n. 47).