Corporeal versus Incorporeal Possession and Ownership

Think of a music lover who buys a vinyl record of a famous album. He owns the disc: he can play it, lend it, sell it, even break it. But he cannot lawfully press a thousand copies, because the copyright in the recording and the songs belongs to someone else. Now think of his neighbour, who for thirty years has walked across the music lover's garden to reach the road. He owns no part of the garden and holds nothing in his hands, yet the law says he possesses something: the continued enjoyment of a way. The disc is corporeal; the copyright and the way are incorporeal. Building on Notes 30, 31 and 79, this note explains how possession and ownership each divide into these kinds, and why the divisions do not line up.

1. Things and Rights: the Roman Starting Point

The division comes from Roman law. Gaius, in his Institutes, repeated in Justinian's Institutes, divided things (res) into res corporales, things that can be touched, such as land, a slave, a garment or gold, and res incorporales, things that cannot be touched and consist in rights, such as an inheritance, a usufruct and obligations. The oddity of the scheme, noticed by every later analyst, is that it placed a usufruct among incorporeal things but left the owner's own right, dominium, among corporeal things by simply identifying it with the land or the slave.

Roman law also stretched possession beyond material things. Strictly, only a corporeal thing could be possessed, but the praetor protected the person who enjoyed a servitude such as a right of way by interdicts modelled on those that protected possession. This was quasi possessio, or possession of a right (iuris possessio). English law kept the same idea in its division of hereditaments into corporeal (land itself) and incorporeal (easements, profits, rents and similar rights), a scheme Blackstone expounded in his Commentaries.

2. Salmond on Corporeal and Incorporeal Possession

Salmond defines possession in its primary sense as the continuing exercise of a claim to the exclusive use of a material object (Note 30). That is corporeal possession: possession of land, a car or a book, made up of corpus and animus. But he recognised that the law also protects the continuing exercise of claims that are not claims to the exclusive use of a thing. The person who habitually walks along a path over his neighbour's land, receives light through his windows, draws water from another's well or fishes in another's river exercises a claim continuously and would resist interference with it. That is incorporeal possession, the possession of a right: its continuing exercise and enjoyment.

On analysis the two kinds share one structure. In both, what the possessor has is the de facto exercise of a claim, and in both the law can protect that exercise without asking whether the claim is well founded. They differ in the content of the claim: in corporeal possession it is a claim to exclusive use of a thing, in incorporeal possession a claim to something less, such as a limited use of land that remains in another's corporeal possession. So the servient owner possesses his land corporeally while the dominant owner possesses the way over it incorporeally, without conflict.

Not every right can be possessed. Possession requires a continuing exercise, so a right that is extinguished by being exercised is incapable of possession. A debt is the standard example: the creditor owns it, but its only exercise is payment, which ends it. Rights exercised continuously over time, above all easements, profits and similar rights over land, are the true field of incorporeal possession.

3. Salmond on Corporeal and Incorporeal Ownership

Since ownership is the relation between a person and a right vested in him (Note 31), corporeal ownership is the ownership of the right of ownership in a material thing, and incorporeal ownership is the ownership of any other right. In ordinary speech we say a man owns his house; strictly he owns a right, the right of ownership in the house, and we identify the right with the house by a figure of speech. The figure is harmless for the fullest right in a tangible thing, but breaks down where the right is less than full ownership or has no material object, and there the law must speak of the right itself.

Incorporeal ownership therefore covers two groups. The first is rights over material things owned by others, the jura in re aliena or encumbrances (Notes 28 and 82): a lease, an easement, a mortgage. The lessee does not own the land, but he owns his leasehold, which he may sell, mortgage or bequeath. The second is rights with no material object at all: a debt, a copyright, a patent, a trade mark, goodwill, shares in a company. In every case what is owned is a right; the only question is whether it is the right of ownership in a material thing.

4. The Pairs Do Not Match

It is tempting to assume that corporeal ownership goes with corporeal possession and incorporeal ownership with incorporeal possession. The correspondence is rough at best. Corporeal ownership and corporeal possession may be in different hands, as when a thief possesses goods he does not own (Note 79). Incorporeal ownership may exist with no possession possible, as with a debt. Incorporeal possession may exist without ownership, as when a neighbour enjoys a way he has no legal right to, which is exactly how prescription begins: his possession of the way is a fact, and only after the statutory period does it become an easement he owns.

5. How Incorporeal Possession Is Protected

Incorporeal possession is not a curiosity: the law protects it, and it ripens into ownership, exactly as corporeal possession does. Under s.15 of the Indian Easements Act 1882, where a way, a flow of air or light, or another easement has been peaceably enjoyed as an easement and as of right, without interruption, for twenty years, the easement is acquired by prescription; the period is thirty years where the servient land belongs to the Government. Section 25 of the Limitation Act 1963 lays down the same rule. The prescriptive owner acquires the easement not by any grant but by the length of his incorporeal possession, just as the adverse possessor of land acquires title by the length of his corporeal possession (Note 79).

The Easements Act also gives the dominant owner a suit for disturbance of the easement, with compensation and injunction, and the criminal law protects the enjoyment of such rights in the interest of peace. Where a dispute over the right of use of land or water, such as a right of way, is likely to cause a breach of the peace, the Magistrate may inquire into who has been exercising the right and prohibit interference with it until a civil court decides (formerly Section 147 CrPC, carried into the BNSS). The inquiry is into enjoyment, not title.

6. Incorporeal Property in Indian Law

Much of modern wealth is incorporeal. Shares in a company are movable property transferable in the manner provided by the articles (s.44 Companies Act 2013); most are now held in dematerialised form under the Depositories Act 1996, where the depository is the registered owner for the purpose of transfer and the investor is the beneficial owner with all the rights and liabilities attached to the shares. Debts and other claims not in possession are actionable claims (s.3 Transfer of Property Act 1882), transferred not by delivery but by an instrument in writing (s.130). Copyright (Copyright Act 1957), patents (Patents Act 1970) and trade marks (Trade Marks Act 1999) are incorporeal property created by statute; an assignment of copyright must be in writing (s.19). The buyer of a finished painting owns the canvas, but unless the copyright was assigned, the artist keeps the right to reproduce it.

7. Evaluation

The distinction is useful because it tracks real differences in how rights are acquired, transferred and protected. Corporeal things pass by delivery and are protected by possessory remedies and the law of theft; incorporeal rights pass by writing or registration and are protected by specific statutory remedies. Its weakness is that the line is sometimes drawn by policy rather than logic, as the cases on electricity and software show: whether an intangible is treated as goods or property depends on the statute and its purpose. And incorporeal possession sits uneasily with Salmond's own definition of possession in terms of material objects, so many writers prefer to speak of the enjoyment of a right.

8. Frequently Asked Questions

Q. What is incorporeal possession?
A. The continuing exercise and enjoyment of a right that is not a claim to the exclusive use of a material thing, such as using a way over another's land or receiving light through one's windows. The Romans called it quasi possession.

Q. Is the ownership of a house corporeal or incorporeal?
A. Corporeal. Strictly the owner owns the right of ownership in the house, but because that right is the fullest right in a material thing, the law identifies it with the house by a figure of speech. A lease of the same house, owned by the tenant, is incorporeal.

Q. Are shares corporeal or incorporeal property?
A. Incorporeal. A share is a bundle of rights against the company, movable property under s.44 of the Companies Act 2013. The share certificate is only evidence of the right, and dematerialised shares have no certificate at all.

See also: Note 30 (possession), Note 31 (ownership), Note 32 (property), Note 28 (rights and duties), Note 79 (possession versus ownership), Note 82 (ownership versus property), Note 130 (mediate versus immediate possession).