16Property Law

responsibilities in dealing with their assets (for example, towards members of their family, or even to employees or colleagues or customers) and their use of their assets can be motivated by positive desires to confer benefits that they have no legal responsibility to confer (for example, perhaps, to amass as large a fortune as possible to leave to their children when they die), by desires for non-financial rewards such as fame or public esteem, or even vindictive desires to cause harm to others even at a loss to themselves. It is not at all clear how far corporate owners can or should do the same. Should we be making special rules to ensure that, so far as possible, the behaviour of a corporate owner replicates that of an honourable, altruistic human owner, or should we acknowledge the inevitable differences and treat corporate ownership as different in kind from individual private ownership? We return to these questions in Chapter 8, where we look at corporate ownership in the general context of the structures the law uses to enable assets to be held on behalf of and for the benefit of others, and the issues arising out of these varying types of split property holding.

Before doing so, however, we need to refine our notion of property, and this is the subject of the next chapter.

Notes and Questions 1.1

1Read Moore v. Regents of the University of California, 51 Cal 3d 120; 793 P 2d 479 (1990) and R. v. Kelly [1999] QB 621, either in full or as extracted at www.cambridge.org/propertylaw/.

2Explain the arguments of the majority and the minority in Moore. Which do you find more convincing?

3Why did the Court of Appeal in Kelly not feel able to accept that human body parts are always ‘property’? On what basis did they nevertheless find that Kelly and Lindsay had been rightly convicted?

4How does the approach of the English Court of Appeal in Kelly differ from the approach of the Supreme Court of California in Moore? Do you consider that either court gave proper consideration to the question of whether human body parts ought to be regarded as property?

5In English law concentration has shifted to the question of the treatment of body parts removed at post mortem examination and retained (in particular at how far relatives have any say in the process) and public enquiries have been held into the practice of organ retention at the Bristol Royal Infirmary and the Alder Hey Hospital in Liverpool. For an account of these developments and an analysis of the legal issues they raise see Mason and Laurie, ‘Consent or Property?’