3\3c

r t i. 537

ETHIOPIAN PROPERTY LAW

A TEXT BOOK

Muradu Abdo
Assistant Professor of Law

School of Law, Addis Ababa University

Addis Ababa
September, 2012

kdama Science & Tecflf101OQV

1niveSS'1 ubrarv .
Copyright (US and Ethiopia 2012) by Muradu Abdo ("Author") and the American Bar Association
("ABA"). All intellectual property rights reserved except as specified herein.
Nothing contained in this publication may be considered as the rendering of legal
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Requests to reproduce this publication or portions hereof for any other purpose
should be sent to the Copyrights & Contracts Department, American Bar
Association, 321 North Clark Street, Chicago, Illinois, USA. (First Published In 2012)

II
 CONTENTS
Tableof Contents ........................................................................................................ Ill
Acknowledgement ..................................................................................................... viii

Chapter1: Introduction ................................................................................... 1

1.1 A brief discussion on the origins of Ethiopian property law................................1
1.2 Sources of property law in Ethiopia ....................................................................3
1.3 Jurisdiction over property law ............................................................................4
1.4 Style and methodology used in this book...........................................................6
1.5 An overview of the contents of this book ..........................................................7
Listof Authorities.................................................................................................... 10

Chapter 2: The Concept of Property................................................................... 11

2.1 introduction ...................................................................................................... 11
2.2 Conceptions of Property................................................................................... 12
2.3 The notion of property under the Code............................................................ 21
2.4 Common features of rights in rem.................................................................... 23
2.5 Conclusion......................................................................................................... 29
2.6 Review questions............................................................................................... 30
Listof Authorities.................................................................................................... 35
Chapter 3: Objects of Rights in Rem ....................................................................... 37
3.1Introduction...................................................................................................... 37
3.2 Views on the meaning and scope of objects of property................................. 38
3.3 Laws of other jurisdictions................................................................................ 40
3.4 Ethiopian Laws.................................................................................................. 42
3.4.1 The Constitution...................................................................................... 42
3.4.2 The Civil Code ................................... ....................................................... 43
3.4.3 Other Ethiopian laws............................................................................... 46
3.5 More on the meaning of the subject matter of property rights....................... 48
3.6 Conclusion ......................................................................................................... .50
3.7 Review questions............................................................................................... 51
Listof Authorities .................................................................................................... 5].
Chapter 4: Primary Classification of Goods........................................................... 53
4.1Introduction ...................................................................................................... 53
4.2 Criteria of classification into movables and immovables.................................. 53
4.3 Reasons for the classification............................................................................ 54
4.4 Consequences of the classification................................................................... 58
45 A Movable thing................................................................................................ 60
4.5.1 Movable by nature.................................................................................. 60
4.5.2 Things which the law deems movable.................................................... 61

in
 Intrinsic elements of movables
4.5.3 .62
4.5.4 Accessories to movables......................................................................... 64
4.5.5 Movable by anticipation......................................................................... 64
4.5.6 Incorporeal movables............................................................................. 66
4.5.7 Real property rights which attach to movables...................................... 67
4.6 Immovables....................................................................................................... 67
4.6.1 Immovables by nature............................................................................ 69
4.6.2 Real Rights that have the status of immovables..................................... 71
4.6.3 Intrinsic elements of immovables........................................................... 72
4.6.4 Accessories to immovables..................................................................... 75
4.7 Accessories versus intrinsic elements............................................................... 83
4.8 Conclusion ......................................................................................................... 84
4.9 Review questions ............................................................................................... .85
Listof Authorities.................................................................................................... 86

Chapter 5: Subsidiary Classification of Goods ......................................................87

5.1 Introduction...................................................................................................... 87
5.2 Corporeal and incorporeal goods...................................................................... 89
5.3 Consumable and non-consumable things .............................. .......................... 91
5.4 Fungible and non-fungible things...................................................................... 93
5.5 Divisible and indivisible things.......................................................................... 94
5.6 Principal things and their fruits.........................................................................97
5.7 Things In the public and private domain......................................................... 101
5.7.1 The basis of the classification ................................................... 102
5.7.2 Legal effects.......................................................................................... 105
5.7.3 Possibility of limited marketability........................................................ 106
5.7.4 Enlargement of the public domain........................................................ 107
5.7.5 Shrinkage of the public domain............................................................ 107
5.8 Personal and collective things ......................................................................... 108
5.8.1 Nature and basis of the classification ................................................... 108
5.8.2 Reasons for the classification ................................................................ log
5.8.3 Implications of the classification ........................................................... 109
5.9 Collective things versus common things, jointly owned property versus
things in the public domain of the state ........................................................ 111
5.10 Ordinary movables and special movables..................................................... 114
5.11 Conclusion..................................................................................................... 114
5.12 Review questions........................................................................................... 114
Listof Authorities.................................................................................................. 115

Chapter6: Possession.............................................................................................. 116

6.1 Introduction ....................................................................................................116
6.2 Defining possession.........................................................................................117
6.2.1 The corpus element ............................................................................... 117
6.2.2 The animus element.............................................................................122

lv
 6.3 Jutns . 131
6.3.1 Public order theory . 131
6.3.2 Will theory............................................................................................ 131
6.3.3 Ownership theory................................................................................. 133
6.3.4 Continuity of possession theory............................................................ 133
6.3.5 The entitlement theory......................................................................... 134
6. 3.6 Law and economics perspective............................................................ 135
6.4 Acquisition and transfer of possession........................................................... 136
6.5 Protection of possession................................................................................. 140
6.5.1 Possessory actions................................................................................ 140
6.5.2 Self-help................................................................................................ 145
6.6 Possessory action versus petitory action........................................................ 149
6.7 Vices in possession .......................................................................................... .[50
6.8 Effects of possession....................................................................................... 152
6.9 Loss of possession ....................................................................-..................... 153
6.10 Conclusion..................................................................................................... 153
6.11 Review questions........................................................................................... 154
Ustof Authorities.................................................................................................. 157
Chapter 7: Individual Ownership .......................................................................... 159
7.1 Introduction.................................................................................................... 159
7.2 Individual ownership versus collective ownership.......................................... 161
7.3 Various conceptions of ownership.................................................................. 162
7.3.1 Ownership as an exclusive right............................................................ 163
7.3.2 Ownership as an absolute right............................................................ 163
7.3.3 Ownership as the sum total of rights.................................................... 165
7.3.4 Ownership as a synergy of certain rights.............................................. 168
7.3.5 Ownership as the widest right.............................................................. 170
7.3.6 Ownership as a functional concept....................................................... 171
7.4 Conclusion....................................................................................................... 173
7.5 Review questions............................................................................................. 173
Ustof Authorities .................................................................................................. 168
Chapter 8: Transfer and Acquisition of Ownership ........................................... .179
8.1 Introduction .................................................................................................... 179
8.2 Modes of obtaining ownership and the basic functions of property
rules................................................................................................................179
8.3 Transfer of ownership.....................................................................................180
8.3.1 Meaning of transfer of ownership........................................................181
8.3.2 Modes of transfer of ownership........................................................... 181
8.3.3 Conclusion.............................................................................................204
8.4 Acquisition of ownership................................................................................204
8.4.1 Occupation............................................................................................205
8.4.2 Possession In good-faith ....................................................................... 212

V
 8.4.3 Usucaption . 218
8.4.4 Accession ..............................................................................................222
8.5 Establishing and extinguishing ownership......................................................229
8.6 Conclusion.......................................................................................................232
8.7 Review questions.............................................................................................233
Listof Authorities..................................................................................................239

Chapter 9: Joint Ownership.................................................................................... 241

9.1 Introduction.................................................................................................... 241
9.2 Characteristics of joint ownership .................................................................. 241
9.3 The pros and cons of joint ownership ............................................................. 243
9.4 The differences between joint & other forms of shared ownership............... 243
9.5 Creation of joint ownership ............................................................................ 245
9.6 The rights and obligations of a joint owner..................................................... 247
9.7 Special cases of joint ownership ..................................................................... 264
9.7.1 Party walls............................................................................................. 264
9.7.2 Multiple owners of floors or parts of a building................................... 265
9.7.3 Condominiums ...................................................................................... 271
9.8 Extinction of joint ownership.......................................................................... 275
9.9 Conclusion....................................................................................................... 276
9.10 Review questions........................................................................................... 277
Listof Authorities.................................................................................................. 280

Chapter10: Usufruct ............................................................................................... 281

10.1 Introduction .................................................................................................. 281
10.2 Scope, nature and manners of creation of a usufruct .................................. 281
10.3 The rights and duties of a usufructuary........................................................ 286
10.3.1 Generally............................................................................................. 286
10.3.2 Possession........................................................................................... 287
10.3.3 Use and enjoyment............................................................................. 292
10.4 The obligations of usufructuary.................................................................... 298
10.4.1 Sound management of the property .................................................. 298
104.2 Duty to restore and to preserve the property..................................... 298
10.4.3 Payment of certain costs..................................................................... 301
10.4.4 To protect the owner's interest in the property ................................. .304
10.5 Special rules regarding usufruct of credits and Incorporeal rights............... 307
10.6 Right of occupation of premises ................................................................... 309
10.7 Termination of usufruct................................................................................ 311
10.8 Effects of extinction of usufruct.................................................................... 313
10.9 Conclusion..................................................................................................... 314
10.10 Review questions ................................................... ...................................... 314
Listof Authorities.................................................................................................. 316

V1
Chapter 11: Servitudes . 317
11.1 Introduction . 317
11.2 Current applicability...................................................................................... 317
11.3 Attributes of servitude.................................................................................. 318
11.4 Sources and types of servitude..................................................................... 324
11.5 Extinction of servitude.................................................................................. 326
11.6 Conclusion..................................................................................................... 327
11.7 Review questions........................................................................................... 327
Listof Authorities.................................................................................................. 330

Chapter 12: Restrictions on Ownership ............................................................... 331

12.1 Introduction.................................................................................................. 331
12.2 External restrictions...................................................................................... 331
12.2.1 Theoretical perspectives on limitations on ownership....................... 332
12.2.2 Grounds for limiting ownership in Ethiopian law............................... 335
12.3 The right of pre-emption............................................................................... 338
12.4 Promise of sale.............................................................................................. 343
12.5 Restraints on assignment and attachment................................................... 345
12.6 Conclusion..................................................................................................... .349
12.7 Review questions........................................................................................... 349
Listof Authorities.................................................................................................. 351

Chapter 13: Expropriation ......................................................................................352

13.1 Introduction..................................................................................................352
13.2 Distinguishing expropriation from related concepts....................................352
13.3 The origin and nature of the state's power to expropriate property........... 356
13.4 What is expropriation?..................................................................................358
13.4.1 Who may exercise the power to expropriate property?....................359
13.4.2 Types of expropriation........................................................................361
13.4.3 What can be expropriated?................................................................363
13.4.4 Who may be affected by expropriation?.............................................364

13.5 Limits on the use of expropriation................................................................365

13.5.1 The public purpose limitation.............................................................368
13.5.2 Must not be arbitrary..........................................................................371
13.5.3 Subject to payment of compensation ................................................ . 376
13.6 Conclusion.....................................................................................................390
13.7 Review questions...........................................................................................390
List of Authorities..................................................................................................394

References ................................................................................................................. 403

Tableof Laws ............................................................................................................ 411

Tableof Cases ........................................................................................................... 414
 Acknowledgment

I am indebted to the American Bar Association (ABA), Ethiopia Project, for

financing the preparation and publication of this book In particular, my
appreciation shall go to Mandefrot Belay, ABA, Country Director of Ethiopia Project
Office, for his understanding, kind and able facilitation of the writing of this Text.
Also I take this opportunity to extend my appreciation to the three anonymous
assessors of the first draft of the Text from whose insightful comments and
suggestions the book has benefited a great deal. I owe a similar gratitude to the
anonymous language editor of the book. Further, my special gratitude goes to
Yazachew Belew and Yoseph Aemero for encouraging me to take up the task of
writing this book and supplying me with important resources. And Elias Nour
deserves my appreciation for his superb assistance in page setting this text. Finally,
I thank my former property law students at the Ethiopian Civil Service College,
Faculty of Law, for their inspiration. i alone shall be responsible for any factual or
legal errors or omissions or opinions expressed in the book.
Muradu Abdo,
Addis Ababa University, School of Law
September 2012
 Chapter 1: Introduction

1.1 A brief discussion of the origins of Ethiopian property

law
Ethiopia adopted six comprehensive western-oriented codes of law between
1957 and 1965.1 The aim of these codes was to lay the foundation of a market
economy, and more broadly, to assist the countr,"s endeavor to "modernize"
itself. The Civil Code of Ethiopia (the Code) is one of the six codes the country
5th
promulgated in this period. The Code was adopted on the day of May 1960.
It came into force on 11th ay of September, 1960. This Code is still in force,
although it has been amended several times.
The Code consists of five bapks. These are: Book I (Persons), Book II (Family
and Successions), Book HI (Goods), Book IV (Obligations) and Book V (Special
Contracts). The third book of the Code runs from Article 1126 to Article 1674.
This is the property law portion of the Code, which is to a large degree still in
orce.During the Derg regime2 these provisions were not applied because of
the leftist orientation of the regime, the prevalence at the time of anti-private
Property feelings, and the nationalization of key means of production. The
*after of the Code, Rene David, believed that the property rules included in
Book Ill of the Code were based on customary rules. He said he selected the
concepts in this portion of the Code from Ethiopian traditions and restated
them in the conceptual forms developed in Europe. In his view the concepts of
private ownership (of land; buildings and agricultural implements), possession
and other notions articulated by the Code predate the Code and are rooted in
the traditions of Ethiopia. What he felt was needed was a clear articulation of
those customary rules. him the substance of Book Ill is entirely home-
grown: y

st
Criminal Procedure Code, roc. 196 , eq. Gaz., 21 Year Extraordinary Issue No. 1;
Civil Procedure Code, Decree No. 52, 1965, Neg. Gaz. 25th year Extraordinary Issue
16th
No. 1; Penal Code, Proc. No. 158, 1957, Neg. Gaz. Year Extraordinary Issue No. 1;
19th
Commercial Code, Proc. No. 166, Neg. Gaz. Year Extraordinary Issue No. 3; and
19th
Maritime Code, Proc. No. 164, 1960, Neg. Gaz., Year Extraordinary Issue No. 1.
This regime stayed in power from 1974-1991. In this period, a series of laws which
undermined private property were issued. These included laws which nationalized
rural land, urban land, extra houses and privately owned businesses. These
legislative measures were taken without compensation of any sort. These laws were
ssued in 1975. See Public Ownership of Rural Lands Proclamation No 31/1975, Neg.
Gaz. Year 34 No 26. See Also Government Ownership of Urban Lands and Extra
Houses Proclamation No 47/ 1975, Neg. Gaz. Year 34, No 41.
Ibid.

1
 The most important accomplishment of the civil code in the areas of
... property ... was cJaflty1 rather than to change the customary rules, to
clarify these rules, to distill their essence, and to unify them on the basis
of those which appeared most reasonable. Our goal was to end an
intolerable confusion and uncertainty by choosing the rule most in
conformity with the Ethiopian sense of justice and Ethiopia's interests,
economic and otherwise. ...the principal contributions of western legal
systems relate to the critical process used to select those rules that
appear best suited to Ethiopia and the techniques used to formulate the
rules. Thus, the Code limits itself to suggesting some new approaches
and solutions, sometimes inspired by western practices, sometimes
different from these practices but judged desirable in the social context
of Ethiopia.....
While this may have been his intent, a review of the Code reveals wholesale
importation of western property rules, both in terms of legal concepts and
language. If one goes through Book Ill in search of provisions based on
customary prQ!tyI3IeS, one finds few and insignificant references to
custom.5 One has also the sweeping repeal provision in the Code, that is,
Article 3347/1.6 The ability to reference and apply customary laws under the
Code is extremely limited. At the time the Code was drafted state policy
devalued and underestirated customary laws for they were thought to
undermine the social, political and economic progress of the country.7 This
policy view is reflected in the writings of Rene David himself:
While safeguarding certain values to which she remains profoundly
attached, Ethiopia wishes to modify her structure completely, even to
the way of life of its people. Consequently, Ethiopians do not expect the
\ new code to be work of consolidation, the methodical and clear
statement of actual customary rules. They wish it to be a program

Rene David, "Sources of the Ethiopian Civil Code", 4:2 Eth. J. L. 341 (1967), at 345-
346.
Articles 1132/1, 1168/1, 1170/2, 1370, 1386-1409 and 3363-3367 of the Code assign
some roles to customary rules.
6
This sub-article in the Civil Code of the Empire of Ethiopia Proclamation No.
19th No. 2, provides: "Unless otherwise expressly provide,.
165/1960, Neg. Gaz. Year
all rules whether written or customary previously in force concerning matters
provided for in this Code shall be replaced by this Code and are hereby repealed".
George Krzczunowicz, "Code and Custom in Ethiopia", 2:2 Eth. J. L. 425 (1965), at 429-
430; see also John H. Beckstrom, "Transplantation of Legal Systems: An Early Report
on the Reception of Western Laws in Ethiopia", 21:3 Am. J. Comp. L. 557 (1973) at
570.

2
 envisaging a total transformation of society and they demand that for
the most part, it set out new rules appropriate for the society they wish
to create. Ethiopia cannot wait 300 or 500 years to construct in an
empirical fashion a system of law which Is unique to itself, as was done
by the Romans and the English. The development and modernization of
Ethiopia necessitate the adoption of a "ready-made" system;
development and modernization force the reception of a foreign system
of law in such a manner as to assure as quickly as possible a minimal
security in legal relations. 8
As the author has argued elsewhere, the drafter's lack of familiarity with the
customs and -traditions of the country, the virtual absence of a record of
relevant custornaiyuIes, and the general odes of the state which favored
large scale importation of foreign laws to the country all support the assertion
that Book Ill of the Code has its gJ pjQel n rather than local Ethiopian
law.9 The implication is that a proper styf property law as embodied in the
Code requires referenc fareJgjegatresui they cases, statutes or
literature. In preparing this text the author has been limited by the lack of
available foreign materials in English10 in Ethiopia. Consequently this text does
not purport to provide a comprehensive or exhaustive review of comparative
and foreign law. Pertinent and available English sources are referred to
throughout the text where they can illuminate the discussion.

1.2 Sources of property law in Ethiopia

While a primary source of property law In Ethiopia remains Book Ill of the Code
other pieces of legislation also contain relevant and important provisions. The
Federal Constitution and the Constitutions of the nlne7g1nitates contain
rules vital to the governance of land and water. Federal proclamations such as
the proclamation nationalizing rural and urban land, the proclamations
governing water, land lease, land administration, expropriation, condominium,
copyright and trademarks contain provisions which affect property. In addition
some regions have enacted proclamations which pertain to rural land use and
administration. There are also property rules In penal law, civil procedure law,
family law and succession law. This book focuses upon the fundamental

8
Rene David, "A Civil Code for Ethiopia: Considerations on the Codification of the Civil
Law in African Countries", 37:2 Tul. L. Rev. 187 (1963) at 188-89 & 193.
Muradu Abdo, Introduction to Legal History and Traditions", (Addis Ababa: Bahir Oar
and Jimma universities, 2010) at 189.
'°While some foreign civil law materials are in English, they are often written In French
or German. The author does not have the requisite language proficiency to
effectively reference those sources.

El
i
principles of property law in Ethiopia and consequently does not address the
more specialized and advanced analysis of every aspect of property law.
Specifically it does not cover land law, water law, property under customary
legal systems, and intellectual property law. Readers are advised to refer to
other more specialized resources for comprehensive treatment of these
subject areas.

1.3 Jurisdiction over property law

Who has the power to enact laws with respect to property: the federa
government or regional states or both? The Federal Constitution (the
Constitution) apportions jurisdiction in three ways. The first is in regard to
land, water and other natural resources where the federal government and
regional states enjoy jurisdiction over different aspects of these same
resources. In relation to land, the federal government can issue laws and
formulate poIiciewh1e_thetatesjave jurisdiion=to -rnake-impjementing
legislation, which jrLturn ertaiIsthe_estab1ishnient of institutions." Under
Article 51/11, the federal government is given the power "to determine and
administer the utilization of waters or rivers and lakes linking two or more
States or crossing the boundaries of the national territorial jurisdiction". By
operation of Article 52L1,1' the regulation of bodies of water wholly within
state boundaries is reserved to the states. Shared power over these resources
makes sense as both levels of government have valid interests in the
governance of these vital resources. The regulation of both land and water
rights involve national politics, equity considerations and the existence of the
country as a polity. For these reasons, it is not surprising that the federal
government has taken a leadership role in determining how land and water
should be used and regulated in Ethiopia. States involvement is equally
important since usage and regulation is directly impacted by the peculiarities
of local settings and local autonomy and water and land regimes are tested on
the ground in specific localities.
Secondly the Constitution gives the federal government exclusive jurisdiction
to enact and implement copyright and patent laws, and arguably, trademark
and trade secret taws. The need for uniformity and compliance with

"See Articles 51/5 and 52/2 (d) of the FDRE Constitution Proclamation No. 1/1995,
Fed. Neg. Gaz. Year 1, No. 1.
12
Which provides: "All powers not given expressly to the Federal Government alone, or
concurrently to the Federal Government and the States are reserved to the States."
13
Article 51/19 of the FDRE Constitution: "It shali patent inventions and protect
copyrights".

4
international law and standards appear to have dictated centralized control of
intellectual property law.
Finally the Constitution gives the federal government jurisdiction over the
creation and enhancement of a single economic community, which is one of
the fundamental aspirations of the FDRE Constitution.14 This gives the federal
government power over property other than natural resources (chiefly land
and water) and intellectual property. Thus if a given set of property rules is
believed to promote a single economic community in the country, the
jurisdiction to issue and as well as to apply them will lie with the federal
government. Those that do not are within the jurisdiction of the regional
states.
It is instructive here to reproduce what the Federal Constitution has to say on
the matter. Article 55/6 states that the House of Peoples' Representatives
"shall enact civil laws which the House of Federation deems necessary to
establish and sustain one economic community". Living as one economic
community is also stated in the preamble of the Constitution15 as one of its
central objectives. A plain reading of Article 55/6 reveals that the single most
important requirement for a given civil law to be federal law is that it should be
a law that which enables the enhancement and continuation of a single
economic community. A national economic interest must underpin the,
issuance of such federal civil laws (e.g., federal contract, property, succession
and family law). The determination of the existence of that interest is made by
the House of Federation after conducting appropriate studies and it is only on
the recommendation of the House of Federation that the federal government
shall issue the legislation. Thuc, property laws which advance the interests of a
single economic community are within the jurisdiction of the federal
government only when expressly authorized by the House of Representatives.
Hence, property issues in Ethiopia do not automatically fall within the ambit of
federal or state authority. Rather the Constitution has mandated the power to
allocate jurisdiction over property issues to the House of Federation and the

"'See Article 55/6 of the FDRE Constitution governing the powers and functions of the
House of Representatives: "It shall enact civil laws which the House of the
Federation deems necessary to establish and sustain one economic community."
The Preamble provides ":...Convinced that to live as one economic community is
necessary In order to create sustainable and mutually supportive conditions for
ensuring respect for our rights and freedoms and for the collective promotion of our
Interests...".

5
 House of Peoples' Representatives which are required to take the criterion of
one economic community" seriously.16

4 Style and methodology used in this book

The, booJ3cipy ançsQnf the provisions of Book Ill of the Code.

V drafting the book the áu or has adoptea version of positivist
m'thodoogy which st-tes that law is to ber d, a legal rule is not out
there to be found.17 It is the author's view that there may be multiple ways of
'p:ecting: givel legal rule. ln this spirit the provisions of the Code asfound
t:ej Amharic and Engli;h versions have been read and are discussed in
context. In considering the provisions the author has had reference to an
'ert translation of Book Ill from the French master text.18 Each chapter
craws insights from jurisprudence, pertinent foreign laws and other areas of
EtIiopan law. Court cases serve to elucidate some rules and principles of the
Code. But. the cases, like the foreign sources are thinly distributed across
.haLers and issues. This is not because of want of effort but it results from the
nadequacy or inaccessibility of resources in Ethiopia.
I. ders of this book will benefit from having a copy of the Civil Code at hand,
for lot all provisions of Part Ill will be fully and completely reproduced in this
ext. Each chapter begins with an introduction, delves into the substance of
he law, 2'id closes with conclusions and review questions. The chapters
provde commentaries on the articles of Book III that attempt to clarify

'6Vt it sould be noted that legislative practice indicates the federal government is
icreasingly assuming the power to pass property laws without reference to the
criterion of one economic community. Lack of expertise, the country's governance
history which hugely favors the concentration of power at the center and the
• existence of an essentially one party system at both the federal and regional levels
nave likely contributed to the centralization of civil laws, property law included. An
h' example b the assumption of jurisdiction by federal institutions in relation to the
administration of water resources of the country regulated under Water Resources
- th,
• Management Proc., 197/2000, Fed. Neg. &az. Year 6 No. 25. This legislation,
under Article 2 (4-€), gives pertinent federal institutions power over virtually every
type of water, be it underground or surface or inter-regional or intra-regional.
17Mike McConville & Wing Hong Chul (eds), Qualitative Legal Research in Research
Methods for Law, (Edinburgh: University Press, 2007) at 22.
BililIign Mandefro, Revised Unauthorized Unofficial Translation of Arts. 1126-1674 of
Book Ill of the Ethiopian Civil Code (1960) From the French Original Draft (Addis
Ababa University, Law Library Archive) (1973-1975).

---•-- ----•---- •- - - -. • -
ambiguities, establish interrelationships, identify gaps and inconsistencies and
inquire into the current application of the provisions. The text also addresses
the impact of legislative amendments on the provisions found in this part of
the Code.

1.5 An overview of the contents of this book

This book attempts to answer five principal questions:
,
1. Who may be a subject (holder) of private property?
2. How are the objects of private property defined? -low and on
what basis are they classified?
3. What is the nature of property? What are the rights and
responsibilities of private property holders (rights in rem)? How is
private property acquired, transferred and extinguisied?
4. What is the justification for the institution of private property?
5. What restrictions are imposed -pnvaproperty?
With respect to the first of these questions we conclude that currently, though
not historically, all persons, physical or juridical, are capable of holding
property, though not necessarily capable of exercising property rights. For
example, the law prohibits some persons such as minors and judicially
interdicted persons from transferring their property rights because the law
considers them to lack the capacity to understand the nature and
consequences of these transactions. The question of who is entitled to hold
and exercise property rights belongs tp the domain of law of persons and is
merely introduced here.
Three chapters are allotted to the question of the objects of property law.
These chapters introduce the reader to basic legal concepts such as that a
person cannot exercise property interests in the abstract and that there must
be an object over which the rights of property are enjoyed.
The concept of corporeal versus incorporeal property is discussed in Chapter 3.
A corporeal good is anything which can be perceived by human sense organs.
Included within the purview of this generic term are things which can be seen,
smelled, tasted and whose existence can be detected through touch. If the
existence of a thing can be established through the five human sense organs,
then it is a corporeal good. The existence of corporeal goods 3SO implies the
existence of things that are not capable of human perception. Thus, there are
intangible matters which are the subject of property law even though they
exist primarily in human imagination. These incorporeal/intangible properties
are generally rights which have economic significance. They include things lik

7
copyright, patent and commercial papers (i.e., cheques and bank drafts).
Chapter 3 also discusses the concept of things in the public domain. Things in
the public domain, as that chapter explains, are those corporeal goods that
may not be held as property by any identifiable private person, that is, those
resources which a given country dedicates to the use egeneral public.
Chapter 4 dwells on considerations of how and for what ends the objects of
property are classified and sub-classified by scrutinizing the principal division of
things in the scheme of the Code. It is followed in Chapter 5 with a discussion
of the subsidiary classification of objects of property contained in the Code.
These two chapters explain the legal implications of division and sub-division of
corporeal goods.
The third question raised is about the nature of private property. The book,
following Book Ill of the Code, conceptualizes the nature of private property as
rights in rem established over a corporeal thing. The question, in other words,
relates to the rights and powers a person may enjoy in Jtin to an object
capable of appropriation as well as her power to exclude, in respect of such
thing, all other persons in the world. In the vocabulary of Book Ill of the Code,
this series of prerogatives of a holder of property are known by such concepts
as ownership, usufruct, servitude, preemption, promise of sale, right of
recovery, pledge and mortgage. When these prerogatives co-exist in time and
in subject matter in the hands of a single person, full ownership exists. When
such rights are dismembered and located in the hands of several persons at
the same time in respect of the same object, then there is the case of less than
full ownership. The lion's share of this book is spent analyzing the Code's
provisions on the najure and contents of Hence, Chapters 6, 7, 9, 10
and 11 are devoted, respectively, to the expositions of possession, of
ownership, of joint ownership, of usufruct and of servitudes. The book also
raises the broader question of the definition of the concept of property itself.
To this end, Chapter 2 is devoted to the articulation of a foundation definition
of property for use throughout the book.19
The Code has incorporated several provisions which address the modalities of
obtaining, of proving and extinguishing property interests. Chapter 8 examines
these provisions in depth. While these provisions focus upon private and
individual ownership they are easily extended to other types of property
ownership. These provisions articulate the requirements for enforceable
property interests. Some provisions regulate the voluntary transfer of

"The treatment of the various conceptions of property found in Chapter 2 is restricted

to private property, not communal or collective property.

8
property while others address situations of the involuntary flow of property
rights from one person to another.
The fourth main question raised in the book is concerned with understanding
the justification for the institution of private property. In answering this
question various theories for or against private property are explored. A
decision to assign to a person the right to enjoy a certain resource to the
exclusion of all other persons in a world of scarcity raises the question of
justification, as those.excluded from interfering with the property are called
S.
upon to finance its protection via taxation and court system 20 Thus, a lot of
ink has been split over the desirability of-- protecting the institution of private
property. There are those who argue for the destruction of private holding of
resources that matter, i.e., the means of production. Others zealously defend
private property on the grounds of efficiency, utility and liberty. Still others
express reservations about the excesses of private property, without arguing
for its abolition. These theories are discussed, not in a single chapter, but
throughout the text. Thus theories of private property are discussed in
connection with conceptions of property (Chapter 2), possession (Chapter 6),
ownership (Chapter 7), occupation and accession (Chapter 8) and
expropriation (Chapter 13).
The fifth question raised in this book is what restrictions apply to the exercise
of private property rights. The Constitution and the Code impose a number of
restrictions. These limitations are justified on the basis of protecting the
interests of others and the public. The book explores these limitations and
argues that where warranted such limitations should not undermine or
unnecessarily impinge on the contents of property interests. Chapters 12 and
13 cover topics like: What is a limitation? What are the different types of
limitations? What are the sources of limitations? Do we have parameters to
limit limitations? How can one justify limitations? Under what situations is the
state liable to follow procedures and pay compensation when it seeks to
interfere with private property? Chapter 12 deals with limitations on property
in generic terms. Chapter 13 focuses on expropriation: the power of the state
to take private property for public purpose upon payment of compensation.

20
Waldron, The Right to Private Property, (New York: Oxford University Press, 1988)
at 8-9.
List of Authorities
Beckstrom, John H. "Transplantation of Legal Systems: An Early Report on the
Reception of Western Laws in Ethiopia", 21:3 Am. J. Comp. L. 557 (1973).
David, Rene. "Sources of the Ethiopian Civil Code", 4:2 Eth. I. L. 341 (1967).
David, Rene. "A Civil Code for Ethiopia: Considerations on the Codification of
the Civil Law in African Countries", 37:2 Tu!. L. Rev. 187 (1963).
Krzczunowicz, George. "Code and Custom in Ethiopia", 2:2 Eth. J. L. 425 (1965).
McConville, Mike & Chul, Wing Hong (eds). Qualitative Legal Research in
Research Methodsfor Law, (Edinburgh: University Press, 2007).
Muradu Abdo. "Introduction to Legal History and Traditions", (Addis Ababa,
Bahir Dar and Jimma Universities, 2010).
Waldron, J. The Right to Private Property, (New York: Oxford University Press,
1988).

10
 A /11 Chapter 2: The Concept of Property
2.1 Introduction
The notion of property is ambiguous. This has naturally led to it being given a
diversity of meanings. R. H. Tawney writes:
Property is the most ambiguous of categories. It covers a multitude of
rights which have nothing in common except that they are exercised by
persons and enforced by the state. Apart from these formal
characteristics, they vary indefinitely in economic character, in social
effect, and moral justification. They may be conditional like the grant of
patent rights, terminable like copyright, or permanent like a freehold, as
comprehensive as sovereignty or as restricted as an easement, as
intimate and personal as the ownership of clothes and books, or as
remote and intangible as shares in a goidmine or rubber plantation.' /

This chapter discusses various ways of defining the concept of property. The
emphasis throughout is on private property as opposed to communal or
collective property. The chapter explores the following concept of property:
property as wealth, as physical thing, as a relationship between a person and a
thing, as a legal right, as proprietary right, as sole ownership and as certain
rights in rem. The chapter attempts to determine which conception of
property is recognized in the property law of Ethiopia and includes a special
section on the major features of rights in rem. The chapter concludes with a
series of review questions.

R. H. Tawney, in an extract from the "The Sickness of an Acquisitive Society" reprinted

in C. B. Macpherson (ed.) Property: Mainstream and Critical Positions, (Oxford: Basil
Blackwell 1978) at 136, as cited in Jeremy 'Waldron, "What !s Private Property?", 5:3
Oxford J. Legal Stud. 313 (1985) at 318. In his article Waldron argues "that private
property and private ownership are concepts of which many different conceptions
are possible, and that in each society the detailed incidents of ownership amount to
a particular concrete conception of these abstract concepts" (at 317). In his view
those who make a case against concepts like private property often exaggerate the
difficulties in their effort to indict the concept. He cites this excerpt from Tawney as
a example of how this is done; arguing that while what is said therein incorrect, it
raises a number of distinct issues about the concept of property, and our
understanding of them does not gain from their simple juxtaposition (at 317-318).

11
2.2 Conceptions of property
Economists and some lawyers view property as a person's wealth. In the
1930's Walton Hamilton defined property as "a euphonious collocation of
letters which serves as a general term for the miscellany of equities that
persons hold in the commonwealth."2 While it may seem like commonsense to
equate property and wealth, it may not be the case in fact. Professor Fx
Colen engaged his students in the following jurisprudential analysis of this
question which arrives at the conclusion that property is not wealth for there
may be property without economic 4Uiè and yãJi without property:

C. [Professor Cohen] ...Do you see any point in the suggestion of Hamilton
that property is essentially an econoriic concept?

E. [student Mrs. Evans] Yes it seems to me that when we are talking about
property we are really talking about economic goods or wealth.

C. I have here some personal papers that are of no possible value to

anyone else in the world. If somebody took these papers from me and I
brought suit to have them returned, do you think the court would require
the return of these papers?

E. Yes, I suppose it would.

C. Would you then say that these papers are my property even though
they have no economic value?

E. Yes, Iwould.

C. Or, let us suppose that I have an inalienable life estate in a piece of land
for which I have no possible use. Economically, the land is a burden rather

2
Walton H. Hamilton & Irene Till, "Property", in Edwin R. A. Seligman & Avlin Jdhnson
eds., 11 Encyclopedia of the Social Sciences 528 (1937). See also Adam Mossoff, "The
Use And Abuse Of IP At The Birth Of The Administrative State", 157:6 U.Pa.L.Rev.
2001 (2008-2009), wherein he credits Felix Cohen and other legal realists with
articulating the "nominalist and positivist nature of legal-realist property theory,
what is referred to by modern legal professionals as the "bundle of sticks" metaphor
with its attendant emphasis on the right to exclude as the essential stick that defines
a legal entitlement as property" (at 2008). Thus the "modern orthodoxy is that
"property" refers to an aggregate set of social relations—various rights and
obligations between citizens that are bundled together for social contingent policy
reasons." These have been described as a bundle of disparate rights: the right to
use, the right to exclude the right to transfer. (at 2009) Although for legal realists like
Cohen "property was not defined by a single right or definitive trilogy of rights.
Rather it is a "bundle of rights". Moreover, this bundle has no fixed core or
constituent elements." (at 2012)

12
than an advantage to me. Still, if somebody trespassed on it I could get at
least a nominal judgment. Would you call that estate my property?
E. Yes, I suppose we would have to call it private property.
C. Then there is such as a thing as valueless property, and economic value
is not essential to the existence of legal property?
E. Yes, I suppose we would have to accept that conclusion.
C. What about the other side of Hamilton's equation between. wejtb and
property? Could there be wealth that did not consist of private"property?
Suppose I discover a new form of exercise that increases the life-span of
diabetics. Would that discovery add to the wealth of mankind?
E. Yes, I suppose it would, if put to use.
C. And to the extent that i was willing to communicate that discovery to
individuals and charge them for the teaching, the discovery would be of
value to me, would it not?
E. Yes, I suppose it would.
C. And yet this bit of knowledge which I could not prevent anyone eise
from using or discovering would not be property, would it?
E. No, I suppose not.
C. Then it seems to me we have come to the conclusion that there is-also
property less value.'
E. I see no way of avoiding that conclusion.
C. Would you agree that air is extremely valuable to all of us?
E. Yes, of course.
C. Why then is there no property in air?
E. I suppose because there is no scarcity.
C. Suppose there were no scarcity of any material objects.
E. I suppose then there would be no property in material objects.
C. Would you say then that private property is a function of privation?
E. Yes I suppose it is, in the sense that if there is no possibility of privation
there cannot be private property.
C. And would you also say that wealth is a function of plenty?

13
 E. Yes, if we think of wealth broadly as covering the whole field of human
goods, or utilities, or enjoyments.
C. Then, wealth and property are in some ways opposites rather than
identical?
E. I am not sure what that means, practically.
C. Doesn't it mean, practically, that if we could create a situation in which
no man lacked bread, bread would cease to be an object of property; and if
conversely, we could create artificial scarcities in air or sunshine, and then
relax these scarcities for a consideration, air and sunshine might become
objects of property? Or, more generally, a society might increase the sum
of its goods and enjoyments by eliminating one scarcity after another and
thus reducing the effective scope of private property.
E. Yes, I suppose that is so. At least, I don't see how one can maintain that
private property is identical with goods or wealth.
C. Well, that seems to leave us with a further point of general agreement.
Property may exist without value; value may exist without property;
private property as a function of privation may even have an inverse
relation to wealth; in short, property inQt eJ.But what is it?
Property can be conceived of as an 4bj over which rights are exercised. For
Ahrens property is "a material object subject to the immediate power of a
person".4 Bentham considers it 'rqtaphpricaI' and 'improper' to extend the
term to include rights other than those which relate to material things".5
Blackstone and Hegel defined property in terms of external objects. Thus
Blackstone reasons:
In the beginning of the world, we are informed by holy writ, the all-
bountiful Creator gave to man "dominion overall the earth, and over the

Felix S. Cohen, "Dialogue on Private Property", (1954) 9 Rutgers L. Rev. 357 at 363-
365. Students are encouraged to read this article in its entirety. The Socratic
dialogue on property which this is excerpted from was intended to be included in a
handbook on legal philosophy Professor Cohen was then preparing. In this article
Professor Cohen posits the following "realistic" definition of property: "Private
property is a relationship among human beings such that the so-called owner can
exclude others from certain activities or permit other to engage in those activities
and in either case secure the assistance of the law in carrying out his decision" (at
373).
As quoted in P. J. Fitzgerald (ed.), Salmond on Jurisprudence (12th ed.) (London: Sweet
& Maxwell, 1966) at 412.
5 A quoted in Ibid.

14
 - j 9

cp
fish of the sea, and over the fowl of the air, and over every living thing
that moveth upon the earth." This is the only true and solid foundation
of man's dominion over external things, whatever ,airy metaphysical
notions may have been started by fanciful writers upon this subject. The
earth, therefore, and all things therein, are the general property of all
mankind, exclusive of other beings, from the immediate gift of the
Cretor.6

(Z bserves: "A person must translate his freedom into an external sphere,
in order that he may achieve his ideal existence."7 Hegel fuses external objects
with the persc,nof the property holder while Blackstone paints a person as
possessing untrammeled sovereignty over external objects.
Most people understand property to be physical things owned by someone.8 In
ordinary conversations, a person points to her car or to her house as her
property. In contrast, the law generally defines property as legally recognized
rights held by one in relation to others with respect to a thing.9 For instance,
when people want to refer to their usufruct or mortgage rights in a house, they
are not talking about the object mortgaged or given in usufruct which is
constructed out of bricks and steel, rather they have in mind some legal
entitlements to subject matter mortgaged or assigned in usufruct. The
conception of property as a physical thing does not require the thing have an
associated economic value, that is, the thing may or may not have economic
value.10 3 ]Qt ±L
6
William Blackstone, Commentaries on the Laws of England in Four Books. Notes
selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and
others, Barron Field's Analysis, and Additional Notes, and a Life of the Author by
George Shars wood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 -
Books I & II. Paragraph 3, Chapter 1: Of Property In General as reproduced by The
Forum: at the Online Library of Liberty.
http://oll.libertyfund.org/index.php?option=com_content&task-view&id=1278&lte
mid=262 (accessed January 28, 2011).
Op cit., Cohen, at 361.
See John G. Sprankling, Understanding Property Law, (Newark N.J.: Lexis Nexis, 1999)
at 1. Additionally, one may use the term property to mean the essential quality of a
thing, and while this might be of use in the hard sciences. It is of lithe, if any, use in
the law.
Ibid., at 2.
'° See Muireann Quigley, "Property and the Body: Applying Honor?, [2007] Journal of
Medical Ethics 631, at 632, where it is stated: The exponential rise in the use, and
uses, of human tissue by medicine, scientists, pharmaceutical companies and
industry has given rise to a whole new way of looking at our bodies. Our bodies,
along with their part and products, have acquired a value that is different from any

15
Ø Fourteenth century scholastic metaphysics gave us materialism, a theory which
conceived of property as things in space. This view holds that all reality is
tangible and exists in space. Thus for example a materialist might argue that a
mortgage is a piece of paper and if the paper is destroyed the mortgage
disappears. Modern legal theorists have refuted this notion. As Professor
Cohen ably argues: "Why should we assume that all reality exists in space? Do
our differences of opinion exist in space? Why not recognize that spacial
existence is only one of many realms of reality and that in dealing with the law
we cannot limit ourselves entirely to the realm of special or physical
existence?"."

Other jurists apply what Cohen calls a semi-materialism conception of property

which sees property as the relationship between a person and a thing. This
view of property assumes the existence of a material thing. However in
modern society we know that there is property in incorporeal or nonmaterial
things. If pushed to its logical conclusion this way of seeing property would
allow for the existence of property on an island occupied by a single man. In
the view of legal realists like Professor Cohen the notion of property would be
entirely unnecessary on this single-person island for there would be no one
who could be excluded from the material bounty of such island. That is why
Cohen, in his illuminating article, argues that the conception of property as a
"dyadic or two-termed relation between a person and a thing" breaks down at
two points. In the first place, there may be no thing in a property relationship.
In the second place, there is no property so long as there is only one person.
12
Thus he concludes property essentially involves relations between people.

traditional conceptions of value in the body. This change has been prompted by the
commercial and quasi-commercial activities of people and industries. One of the
results of these activities is that we are now, more than ever, concerned about
questions of what can and cannot be done with our bodies and their parts and
products. However, in order to explore and solve conflicts that arise in this area, we
need an appropriate framework within which to work. Since the new concerns
surrounding the body and its tissues are essentially about issues of control and of
ownership. One approach might be to consider each of us as a self-owner and our
bodies, and human tissue in general, as being subjectto property, or at least quasi-
property, right... I want to show that if, as Hillel Steiner maintains, self-ownership
consists in our having "full liberal ownership of our bodies", and if, as Honoré claims,
having "full ownership" consists in our holding most of the elements of ownership,
then we can be said to be self-owners if we can be shown to hold most of these with
regard to our bodies.
"Op. cit., Cohen, at 361.
12
Op. cit., Cohen, at 378.

16
More modern theorists describe property as collection of rights. Mossoff
describes this as the nominalist definition of property!3 As Salmond posits, in
its widest sense property includes all a person's legal rights, of whatever
description. "A man's property is all that is his in law".14 Hobbes and Locke
link property with every legal entitlement a human person may possess in a
civil society. Hobbes stated in his Leviathan:

Again, every sovereign ought to cause justice to be taught, which,

consisting in taking from no man what is his, is as much as to say, to
cause men to be taught not to deprive their neighbours, by violence
or fraud, of anything which by the sovereign authority is theirs. Of
things held in propriety, those that are dearest to a man are his own
ife and limbs; and in the next degree, in most men, those that
concern conjugal affection; and after them riches and means of
living. Therefore the people are to be taught to abstain from
violence to one another's person by private revenges, from violation
of conjugal honour, and from forcible rapine and fraudulent
surreption of one another's goods.

Locke was also a proponent of the theory of property as rights. He writes:

If man in the state of Nature be so free as has been said, if he be

absolute lord of his own person and possessions, eoual to the
greatest and subject to nobody, why will he part with his freedom,
this empire, and subject himself to the dominion and control of any
other power? To which it is obvious to answer, that though in the
state of Nature he hath such a right, yet the enjoyment of it is very
uncertain and constantly exposed to the invasion of others; for all
being kings as much as he, every man his equal, and the greater part
r
'2 no strict observers of equity and justice, the enjoyment of the
- property he has in this state is very unsafe, very insecure. This
L makes him willing to quit this condition which, however free, is full
of fears and continual dangers; and it is not without reason that he
seeks out and is willing to join in society with others who are already
united, or have a mind to unite for the mutual preservation of their
lives, liberties and estates, which I call by the general name -
property.

13
Op. cit., Mossoff, at 2010.
14
Op. cit., Salniond, at 411.
15
Thomas Hobbes, Leviathan, Chapter XXX, "Of The Office Of The Sovereign
Representative" (http://oregonstate.edu/instruct/phl3Q2/texts/hobbes/Ievjthan
f.html accessed November 19, 2009) ..,
17 ,c1ama L1
 The great and chief end, therefore, of men uniting into
commonwealths, and putting themselves under government, is the
preservation of their property; to which in the state of Nature there
16
are many things wanting.
Madison held a similar view of property:
This term in its particular application means that dominion which
one man claims and exercises over the external things of the world,
in exclusion of every other individual."
In its larger and juster meaning, it embraces everything, to which a
man may attach a value and have a right; and which leaves to
everyone else the like advantage.
In the former sense, a man's land, or merchandize, or money is
called his property.
In the latter sense, a man has a property in his opinions and the free
communication Of them.
He has a property of peculiar value in his religious opinions, and in
the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his
person.
He has an equal property in the free use of his faculties and free
choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be
equally said to have a property in his rights.
Where an excess of power prevails, property of no sort is duly
respected. No man is safe in his opinions, his person, his faculties, or
his possessions.
Where there is an excess of liberty, the effect is the same, tho' from
an opposite cause.

16
John Locke, "Two Treatises on Government", Book U, Chapter 9: Of the Ends of
Political Society and Government, paragraphs 123 and 124
(http://oregonstate.edu/instructjphl3O2/texts/Iocke/tocke2/tocke2nd-c.html
accessed february 2, 2011). See also John Locke, An Essay Concerning the True
Original, Extent and End of Civil Government, Chapter 5 "Of Property" (
http://www.wjmi.org/docs/2dtreat.htm#5chap (accessed Feb/2, 2011) for Locke's
arguments in support of his definition of private property.

18
 Government is instituted to protect property of every sort; as well
that which lies in the various rights of individuals, as that which the
term particularly expresses. This being the end of government, that
alone is a just government, which impartially secures to every man,
whatever is his own....
If the United States mean to obtain or deserve the full praise due to
wise and just governments, they will equally respect the rights of
property, and the property in rights: they will rival the government
that most sacredly guards the former; and by repelling its example in
violating the latter, will make themselves a pattern to that and all
11
other governments.
In some ways Salmond, Locke and Madison seem to have equated property
with every legal right people possess including their fundamental human
rights.18 In civil law jurisdictions this is known as patrimony which means the
totality of a person's rights and obligations, which may or may not be assessed
in monetary terms. The claim that property encompasses all legal rights does
not help us to distinguish property from other legal relationship/rights.
Salmond recognized this and refined the concept of property to include only
the proprietary rights of a person:

...property includes not all a person's- rights, but only his proprietary
as opposed to his personal rights. The former constitute his estate
or property, while the latter constitute his status or personal
condition. In this sense a man's land, chattels, shares, and the debts
19
due to him are his property, but not his life or liberty or reputation.

One might associate property with the notion of sole ownership of material
things. Individual ownership focuses on that which I own as opposed to that
which is owned by others or the community as a whole. One may think of
three objections to the characterization of property as sole ownership. First,
the concept of property must encompass situations less than sole ownership.
Second, there are other forms of ownership other than sole ownership such as
collective ownership, joint ownership and communal ownership. Third, even if
property is sole ownership, it is hardly acceptable to limit the objects of sole

17
The Founders' Constitution, V61.1, at 598. http://press-
rubs.uchicago.edu/founders/documents/v1ch16s23.htmI (accessed November 26,
2009).
18 rd
See George Whitecross Paton, A Text-Book of Jurisprudence, (3 Ed.) (Oxford: The
Clarendon Press, 1964) at 455.
19
Op. cit, Salmond, at 412.

RV
ownership to material things; obviously there are numerous Intangibles which
could be owned by a person.
Still others equate private property only with rights in rem,20 claims which can
be asserted against the whole world in respect of a determinate thing, be It
corporeal or incorporeal. in Ethiopian property law, rights in rem fall within
the domain of Book Ill of the Code. Thus, the term property in this sense
excludes proprietary rights per se and only includes "those which are both
proprietary and in rem. The law of property is the law of proprietary rights in
rem, the law of proprietary rights in personam being distinguished from it as
the law of obligations. According to this usage a freehold or leasehold estate in
land, or a patent or copyright, is property, but a debt or benefit or a contract is
.21
not"
Property as rights in rem connotes a series of relationships which are
recognized and protected by government and that exists between individuals
with respect to an object, whether it is tangible or intangible, with or without
value. This allows us to understand property law as a bundle of rules that help
us determine who may hold property, over which subject matter property may
be established, the manner in which property may be obtained and lost and
the limitations imposed on property. This definition permits us to see property
law as an institution because the enforcement of property law requires the
establishment procedures and a court system.
The characterization of property as rights in rem is a qualified one in the sense
property refers to such rights which are linked to things which are
appropriable.22 Not all rights in rem are property. For example, if we define
rights in rem to include rights which bind persons generally, a right of a person
not to be defamed is a right in rem because all other persons in the world are
precluded from tarnishing her name, if they do so, they will be subject to
sanction. Thus, the right of a person not to be defamed by others is a right in
rem but not property.

In this context right in rem is not used in its more limited sense of the power of
a person to recover a specific thing.23 This conception of property as real rights

20
legal rights are said to be in rem or in personam. An in personam right is a
personal right attached to a specific person, such as a contract or a license.
Generally, in rem rights are property rights enforceable against the entire world,
whereas in personam rights only bind the litigants. Thus a judgment will be said to
be in rem when it binds third parties.
21
Op. cit, Salmond, at 412.
22
This will be elaborated further in Chapter 3.
23
Op. cit., Paton, Textbook, at 455 & 464.

20
(right in rem) includes several rights of such kind, namely individual ownership
(full or naked ownership), joint ownership, possession, usufruct (co-
habitation), servitude, right of recovery, right of preemption, rights of promise
of sale, pledge, mortgage, and antichresis24.

2.3 The notion of property under the Code

An analysis of the text of the structure and origins of the Code reveals that it is
permeated by a conception of property as a right in rem. Textually, we find the
use of the phrase right in rem in many portions of the Code. For instance, Title
VIII of Book Ill of the Code is worded: "Joint Ownership, Usufruct, and other
Rights in Rem'. This wording is telling for the inclusion of the basket clause
"...other Rights in Rem" appears to label all rights contained in Book Ill of the
Code as real rights, rights to be asserted against the world generally. The
"other Rights in Rem" referred to in Title VIII of the Code are servitude, right
25
of recovery, preemption and promise of sale.

A more implicit example of the use of a right in rem as an organizing notion-in

Book III of the Code is wording of Article 1411:
(1)Ownership is the widest right that may be had on a corporeal
thing.
(2)Such right may neither be divided nor restricted except in
accordance with law.

The prohibition against disaggregation of ownership pertains to the doctrine in

property law of numerus clausus, which literally means the number is closed.26
This doctrine encapsulates one of the central distinctions between rights in
rem and rights in personam. Contract rights are in personam and property
rights in rem.

24 Antichresis is a contract whereby a person borrowing money from another, hands

over his immovable property to the creditor, allowing the use and occupation
thereof, instead of paying interest on the money lent.
25
See also Article 1411 which provides: (1) An agreement for promise of sale or right of
preemption shall not constitute a restriction on ownership under this Section nor
shall it give rise to a right in rem unless it relates to an immovable or a specific
chattel. (2) The rights and obligations which it creates for the parties shall be as
provided by Book IV of this Code. (3)The provisions of the following Articles shall
only apply to rights in rem created by such agreement.
26
this is a term used in civil law jurisdictions it has been argued that the
doctrine of numerus clausus applies universally--to all property law systems. See:
Thomas W. Merrill and Henry E. Smith, "Optimal Standardization of the Law of
Property: The Numerus Clausus Principle" 110 Yale L.J. 1 (2000) at 4.

21
 A central difference between contract and property concerns the
freedom to "customize" legally enforceable interests. The law of
contract recognizes no inherent limitations on the nature or the
duration of the interests that can be the subject of a legally binding
contract. Certain types of promises-such as promises to commit a
crime-are declared unenforceable as a matter of public policy. But
outside these relatively narrow areas of proscription and
requirements such as definiteness and (maybe) consideration, there
is a potentially infinite range of promises that the law will honor.
The parties to a contract are free to be as whimsical or fanciful as
they like in describing the promise to be performed, the
consideration to be given in return for the promise, and the duration
of the agreement.
The law of property is very different in this respect. Generally
speaking, the law will enforce as property only those interests that
conform to a limited number of standard forms.27
Property rights exist in a fixed number of forms.
Further the entire Code seems to be organized around the civil law notion of
patrimony, which refers to the sum total of a person's rights and obligations
whether or not susceptible of quantification in monetary terms. This is clear
from Article 1 of the Code which declares that "[t]he human person is the
subject of rights from its birth to its death". In Article 9 the Code provides that
the rights of personality and liberties guaranteed by the Constitution are extra
commercium and limits on the exercise of those rights must be justified by a
legitimate interest. One could characterize Book I and Book II of the Code as
essentially dealing with rights acquired by a person as a matter of status
(parental authority, family and spousal relationship), Book Ill as right in rem,
Book IV and V as rights in personarn.
In terms of the origin of the Code, in particular of Book Ill, we face an acute
shortage of authoritative documents directing us to specific sources. The
available documents do not tell us whether Book Ill was copied from or
inspired by, for example, French or German property law. It is clear however
that it has its origins in the civil law traditions. Therefore, the use of rights in
rem as an organizing principle in the property law of Ethiopia is inevitable

" Ibid, at 3. Also see Thomas W. Merrill and Henry E. Smith, "The Property/Contract
Interface", 101:4 Colum. L Rev. 771 (2001) wherein the authors examine the
distinctions between in personam contract rights and in rem property rights.

22
because this notion is the time honored concept running through every
property law ofa country which belongs to the civil law family.28
it is important to note that while the property law of Ethiopia as embodied in
Book Ill of the Cpde should be taken to define property to mean rights in rem.
There are other laws of the country which conceive the notion of property to
mean any interest having economic value or to mean patrimonial rights which
can be converted into money. For example, the Criminal Code of Ethiopia
extends the notion of property to both rights in personam and rights in rem,
for it seeks, among others things, to protect the legitimate economic interests
of a person through the invocation of criminal law. This is also true for the
Commercial Code and the Revised Family Code which regulates any proprietary
interests of a comjugal union. The Code also appears to transform certain right
in personam to'the status of rights in rem; 29 one may call these assimilated
rights hybrid rigkfts, i.e., a mixture of rights in personam and rights in rem.

2.4 Common features of rights in rem

The following are the common attributes of property defined in terms of real
rights or rights it?I rem:

1. The right in rem should be obtained through legitimate means.

Legitimate means include acquisition (which is unilateral and original)' or
transfer (wMch is bilateral and dèrivative.- The means of obtaining lights
in rem are acceptable when they comply with the requirements set forth in
the system's property law. The Code specifies the modalitIes of obtaining
pioerty and more particularly ownership in Ethiopia as: occupation,

28
Articles 929, 1424 and 1844/ 2114, 2177, 2181, 2266 of the French Civil Code
indicate that the concept of rights in rem is a central notion of its organization. See
The French Civi1 Code (2004) (Trans. Georges Rouhette),
http://195.83.177.9/code/liste. phtml?lang=uk&c=22 viewed July 12, 2010); Articles
197, 322b, 438,481, 889, 945, 1059c and 1094 of the German Civil Code use the
term real rights. See German Civil Code (2009), www.juris.de last viewed July 12,
2010). see also http://www.gesetze-im-
internet.de/englisch bgb/englisch bgb.html for an English translation of the
German Civil Code.]
29
For example, Article 1332/2, provides: "Leases made in respect of a land or building
between the usufructuary and a farmer or tenant shall bind the owner and third
parties for a period of three years from the termination of the usufruct". Here one
sees lease contract in respect of land and building to have binding effect on third
parties. See also Article 1571/1 of the Code, which requires registration of in rem
rights like ownership, usufruct and servitude and also long term leases which are by
their nature contracts and therefore create in personam rights.

23
 possession in good faith, usucaption,3° accession, juridical acts (testament,
donation, sale, agreements creating pledge or mortgage or antichresis),
and operation of law (e.g. intestate succession or expropriation). The
'\ emphasis created in the definition of private property found in Article 40/2
of the Constitution on the means of production is indicative of the
3 importance of the legitimacy of the means in getting property, rights in
rem. Article 40 of the Constitution, titled The Right to Property provides, in
part:
1. Every Ethiopian citizen has the right to the ownership of
private property. Unless prescribed otherwise by law on
account of public interest, this right shall include the right to
acquire, to use and, in a manner compatible with the rights of
other citizens, to dispose of such property by sale or bequest
or to transfer it otherwise.
2."Private property", for the purpose of this Article, shall mean
any tangible or intangible product which has value and is
produced by the labour, creativity, enterprise or capital of an
individual citizen, associations which enjoy juridical personality
under the law, or in appropriate circumstances, by
communities specifically empowered by law to own property
in common.
Requiring that property be obtained by legitimate means excludes obtaining
property through illegitimate ways, defined and proscribed by the civil and
criminal law. Reeds writes:
...the concept of property places limits on how one is permitted to
acquire resources. Basically, this means that property does not
protect resources acquired by coercion, tl4eft, or deception,
allowing victims of such acquisition to pursue the acquirer with
civil remedies while the state exercises criminal enforcement
sanctions.31
That this has long been the law of Ethiopia is reflected in the Fetha Nagast
which commands the faithful: "...[d]o not take the wealth of anyone by
, 32
violence, do not buy from him by force, either openly or by trick...'. The
Federal Government issued a proclamation in 2010 (2003 E.C.) which requires

30 A concept found. in civil law systems, also known as acquisitive prescription. It is a

method of gaining ownership of property by lapse of time (acquiescence).
310 Lee Reeds, 'What Is 'Property?, 41: 4Am. Bus. L. J., 459 (2004) at 497-8.
32 Aba Paulos Tzadua, (Trans.), The Fetha Nagast, The Law of the King, (1968) at 273.

24
government officials to disclose and register their assets to prevent them from
33
obtaining property through ipgper means

2. Once legitimately obtained, a right in rem confers upon the holder of such
property a series of decision making powers. These powers cannot be
exhaustively listed. They are described as "self-regarding powers". This is
because they have to do with what the property holder himself or herself may
do or direct be done with the property. Self-regarding powers carve out a
space within which the property holder might move, though not with absolute
freedom. They can be classified into inaction or taking positive action. As a
positive action the property holder of a physical object may physically use it,
construct or reconstruct"Or transform it. If the property is a plot of land,
cultivate it, build a house or other structures on it or plant it or develop it in
other ways. The positive action might create privileges in favor of others. For
example the action of the property holder might result in the transfer of all or
part of the holder's right to another person during his life or upon her death,
with or without consideration, for a while or for an indefinite period of time.
The holder of the right in rem might also exercise his or her powers by i.ctii.
For example, by keeping control of a tangible thing but letting it be unused,
abandoning it or even wasting it; or by failing to exercise the right (for example
copyright) in case of property over intangible things.

3. Real rights can be exerted against the whole world that is everyone other
than the right holder including the state. Since real rights affect all others, they
are dubbed as "other regarding" rights or powers: Understanding these other
regarding powers h-eips make a good sense of the self-regarding'/ powers
exercised over For example, all persons (not just specific individuals)
are required to refrain from interfering with a property holder's rghts.
Everyone requires permission to use the property or otherwise interact with it.
Thus one other regarding right is the power to exclude others from the
property. This right can be exercised individually or shared with others in cases
whte the property is held with others.R Thus the world cannot, without
permission, interfere with the holder's property even if it objects to its use or
condition. It is widely agreed that the ability to exclude is one of the hallmarks
of the concept of property. Reeds says: "at the very heart of property lies its
singular conceptual core, which is the private right of exclusion. If having
'property' means anything, historically and legally, it is that the owner can
exclude others from the resource owned and that others have a duty not to
infringe this right. "34

33
See Disclosure and Registration of Assets Proclamation No. 668/ 2010, Fed. Neg.
Gaz. Year 16 No.18.
34
Op.cit., Reeds, at 487-8.

25
 Hobbes stated that:. "[t]he property which a subject hath in his hands,
consisteth in a right to exclude all other subjects from the use of
35
them...". Blackstone regarded property as: "that sole and despotic
dominion which one man claims and exercise over external things of the
world, in total exclusion of the right of any other individual in the
36
universe".

There is an intimate relationship between the self-regarding powers and

the other regarding powers vested in a property right holder. The self-
regarding powers are also rooted in the exclusive nature of property.
That is because they can be exercised withoUt the ability to legally exclude
others from making decisions about the property without consent. Thus,
it is said that:

The positive 'bundle' of rights like possession, use, and alienation can
all be derived from the negative exclusionary right. For example, if an
owner can legally exclude others from interfering with resources over
her land, she can possess the land, use it in a myriad of ways that
leave an equal right in others to use their resources, or transfer it
37
through sale, lease, or gift to others.

4. The extent of the capacity of persons to deal with private property is

determined by the legal system in force. The question of who is entitled to
be a holder of right in rem raises two important issues: the capacity to hold
property rights and the ability to exercise those rights. Under Ethiopian
law, in principle, all persons, physical or juristic, are capable of holding
property rights. Foreign nationals of Ethiopian origin can own immovable
property provided they can be regarded as domestic investors (in some
38)
cases involving foreign nationals of Ethiopian origin or foreign investors
so long as the immovable property they own is necessary for their
investment in the country.39 Non-investor foreign nationals cannot own
immovable property but can own other kinds of property.40 Juristic

35
Asquoted in Ibid at 487.
36
Asquoted in Ibid at 487.
' Ibid., at 488-9.
38
Seethe Proclamation Providing for Foreign Nationals of Ethiopian Origin with Certain
Rights to be Exercised in Their Country of Origin Proclamation, No 270, 2002. Fed.
Neg. Gaz. Year 8th No 17.
39
See Article 40 of the Ethiopian Investment Proclamation No. 280/2002, (as amended
8th
by Proc. No. 375/2003), Fed. Neg. Gaz. Year No. 27.
40
See Articles 390-393 of the Code: No foreigner may own immovable property situate
in Ethiopia except in accordance with an Imperial Order. If he happens to be in gcod

9.1
 persons, being devoid of a will of their own, even if they hold property
*41
interests, exercise those rights through the instrumentality of agency _1

Ethiopian law presumes all physical persons to have the capacity to

exercise their property rights. Minors and j4diçia!iy4hterdicted persons
(which include senile and insane persons) generally use the devices of
guardianship and tutorship in exercising their property.42 The law regards
them as incapable of understanding and properly exercising their property
rights because of their mental aliments or lack of age or maturity. ft

5.The holder of rights in rem can secure the assistance of the law and the
state in exercising those rights. Thus the property holder can call upon the
law and the state to assist in enforcing decisions to exclude or permit
others the property. These rights only make sense when they are backed
by the legal machinery of the society. The power to exclude emanates
from the force of law, not personal might or mere custom or positive
morality. If, for instance, someone invades your land to take it over from
you without your consent or if someone makes it difficult for you to have
quiet enjoyment of your property, your right to exclude others is infringed.
This infringement of your property must be visited with some sort of
sanction. A breach of the right of exclusion might entail a possessory
43
action or a petitory action, or it may entail self-help or criminal actions.
The remedies could include recovery of the land, injunction, a finding of
criminal responsibility, compens on or declaratory judgment. Actions
7 against the transgressor will be viable if taken within the time limit
imposed by law.0

The state must establish and maintain complex legal and administrative
machinery to enforce private property. Enforcement of property is not

faith, he is required to sell it to an Ethiopian. If he refuses to do so, the appropriate

government authority will seize and sell it. Twenty percent of the proceeds of the
sale will be retained by the government (10% in the, case of succession).
See Article 454 of the Code with respect to associations: (1) An association may
perform all civil acts which are consistent with its nature. (2) It shall perform such
acts through its organ of management.
42
See Article 216 of the Revised Family Code Proclamation No. 213/2000, Fed. Neg.
5th
Gaz. Year Extraordinary Issue 1. See also Article and those following in the
Code.
43 A legal proceeding by which the plaintiff seeks to establish and enforce his or her
title to property, as distinguished from a possessory proceeding, where the
p'aintiffs right to possession is the issue. Such petitory actions must be based on a
claim of legal title to the property, as opposed to a mere equitable interest in it.
The law will generally set a time limit within which such actions must be instituted.

27
 without public costs. The justice machinery which might be called upon to
protect the property holder upon the violation of her rights is costly. Laws
must be passed and implemented with the attendant human and material
resources and financial costs associated with maintaining the legislature
and ministries and implementing agencies and bodies. Public and private
resources are expended on the interpretation of law and jurisprudence and
the adjudication of disputes. Admittedly, some of the expenses associated
with the protection of property may be absorbed by the property holder;
however taxpayers are expected to carry much of the financial and
45
practical burden of the protection of property.

The maintenance of a regime of private property requires the support of

the community and society. As Waldron argues that "[e]very social
institution requires justification if only because the energy and resources
needed to sustain it could be used in some other way".46 Members of the
community need to agree that thee are good reasons to support the
existence of private property, else why would people stay away from the
property of others even during times of acute need and privation?
:47
Waldron writes
we look for a justification of private property, because it deprives the
community of control over resources which may be important to the
well-being of its members, and because it characteristically requires
us to throw social force behind the exclusion of many members of
our society from each and every use of the resources they need in
order to live..., one effect of recognizing individual powers of transfer
is that resources may gradually come to be distributed in a way that
leaves a few with a lot, and a lot with a very little, and a considerable
number with nothing at all, Private property involves a pledge by
society that it will continue to use its moral and physical authority to
uphold the right of owners, even against those who have no
employment, no food, no home to go to, no land to stand on from
which they are not at anytime liable to be evicted.

It is not our intention to pursue issues of justification of private property

in-depth in this text. However it is important to note the need to justify
the existence of private property. """The arguments in support of private
property include that it expands personal liberty, brings about resource

45
Op. cit Waldron, Right to Private Property, at 8.
45
Ibid.
46
Ibid.
47
Ibid., at 9'.

28
 efficiency or cultivates individual virtjf Some argue that is based on first
occupation or based on annexation of labor with a natural resource (for
example, land). Others argue that private property is the result of the
projection of a person's personality on goods for the advancement of
civilization or social stability.48

6. Rights in rem are not absolute. One may question the extent of
property. Is the principle of exclusion absolute or are there occasions
whereby a society may legitimately interfere with the property of its
member? Property law does impose limits on the exercises of those rights.
For example, an owner of a computer has a primojqcie power to exclude
all other persons in the world from using that computer without her
consent. It is prima fade because the right of the owner of the computer
to exclude others can be overridden by sgççietal goals or in the interest of-
other person S.49 These limitations are imposed by the law against the will
of the owner of the computer. They may limit the use or disposition of the
property or the collection of the fruits _)f the property. For instance, a car
owner has to comply with certain regulations in the exercises of her
ownership right over the vehicle. There are traffic regulations such as
speed limits, restrictions on load amount and on the nature of things
transported by the vehicle. An owner of a house in a residential zone of a
town may be stopped from using it for a nightclub. The nature and range
of limitations the law places on property rights are more fully discussed in
Chapter 12.

2.5 Conclusion
Many conceptions of property have been proposed. The key features of
refj fl include that it is self-regarding and other regarding. Self-regarding in
the sense that the property holder has decision making powers with respect to
the roper,ther regarding in the sense that the property holder can exclude
others ro ,
• The law imposes reasonable limits upon the exercise of those
decision making powers and exclusionary rights. Property is rights in rem, that
is rights that are enforceable against the whole world and is governed by the
doctrine of numerous clauses which means that there are limited and specific
4ay established by law, in which it can be dealt with. It is good to keep in
mind too the relative nature of the notion of property. It is relative to time,

46
Karl Kenner, "The Institution of Private Law in Law and Philosophy" in Edward A Kent
(ed), Readings in Legal Philosophy, (New Jersey: Prentice-Hall, Inc., 1970) at 516-524
and Morris R. Cohen, "Property and Sovereignty in Law and Philosophy in the same
text at 525-532.
49
Frank Snare, "The Concept of Property", 9 A. P. Q. 200 (1972) at 202-4.

29
subject and subject matter and the ideological leanings of society. We will
return to examine these concepts again in our analysis of the concept of
ownership in chapter 7.

2.6 Review questions

1. Article 40 of the Constitution provides as follows:
Article 40
The Right to Property
1. Every Ethiopian citizen has the right to the ownership of
private property. Unless prescribed otherwise by law on account
of public interest, this right shall include the right to acquire, to
use and, in a manner compatible with the rights of other citizens,
to dispose of such property by sale or bequest or to transfer it
otherwise.
2."Private property", for the purpose of this Article, shall mean
any tangible or intangible product which has value and is
produced by the labour, creativity, enterprise or capital of an
individual citizen, associations which enjoy juridical personality
under the law, or in appropriate circumstances, by communities
specifically empowered by law to own property in common.
3. The right to ownership of rural and urban land, as well as of all
natural resources, is exclusively vested in the State and in the
peoples of Ethiopia. Land is a common property of the Nations,
Nationalities and Peoples of Ethiopia and shall not be subject to
sale or to other means of exchange.
4. Ethiopian peasants have right to obtain land without payment
and the protection against eviction from their possession. The
implementation of this provision shall be specified by law.
5. Ethiopian pastoralists have the right to free land for grazing
and cultivation as well as the right not to be displaced from their
own lands. The implementation shall be specified by law.
6. Without prejudice to the right of Ethiopian Nations,
Nationalities, and Peoples to the ownership of land, government
shall ensure the right of private investors to the use of land on
the basis of payment arrangements established by law.
Particulars shall be determined by law.
7. Every Ethiopian shall have the full right to the immovable
property he builds and to the permanent improvements he
brings about on the land by his labour or capital. This right shall
include the right to alienate, to bequeath, and, where the right

30
 of use expires, to remove his property, transfer his title, or claim
compensation for it. Particulars shall be determined by law.
8. Without prejudice to the right to private property, the
government may expropriate private property for public
purposes subject to payment in advance of compensation
commensurate to the value of the property.
Discuss how these provisions assist in defining property in Ethiopian law. From
your reading, do these provisions reflect the views of the legal realists like
Professor Cohen? How are they similar and how do they differ from that
theoretical view of property.
It is common for states, like Ethiopia to restrict foreign ownership of
immovable property (primarily land). This is the case under Ethiopian law.
However foreign nationals of Ethiopian origin are given the status of an
Ethiopian citizen for the purpose of acquiring interests in immovable property
including land. What is the public interest in such restrictions? Why do they
focus on land and other immovable property? Why might investment in land
be treated differently than ownership of land?
The use and access of land is again differently regulated under Ethiopian law.
While Ethiopian citizens, peasants and pastoralists are entitled to free access
and use for specific purposes, private investors can only use the land if they
pay under arrangements with the state. Whet interests are served by these
distinctions? What do they tell you about the nature of property in Ethiopia?
Neither the International Covenant on Civil and Political Rights (ICCPR) nor the
International Covenant on Economic, Social and Cultural Rights (ICESCR) has a
provision on property rights. The Universal Declaration of Human Rights
(UDHR) has devoted one article in relation to this particular right, which reads:
"Everyone has the right to own property alone as well as in association with
others. No one shall be arbitrarily deprived of his property".50 Considering this
provision are states like Ethiopia free to restrict foreign ownership of and
access to property within their boundaries? Bear in mind Article 13/2 of the
Constitution which expressly provides: "The fundamental rights and freedoms
specified in this Chapter shall be interpreted in a manner conforming to the
principles of the Universal Declaration of Human Rights, International
Covenants on Human Rights andlnternational instruments adopted by
Ethiopia".51

50
See Belachew Mekuria, "Human Rihts Approach to Land Rights in Ethiopia in Land
Law and Policy in Ethiopia since 1991: Continuities and Changes", in Muradu Abdo
(ed.), Ethiopian Business Law Series VoL 111 (2009) at 46.
51
Ethiopia has adopted this instrument.

31
2. Discuss the following observation made by Salmond regarding the search
for a correct definition of the term property: "....in the case of a word
having so many recognized varieties of usage it is idle to attempt to single
52
out any of them as exclusively correct?".

3. How does law distinguish property and contract?

4. Amselet Taeme attained the age of majority and sued her ex-tutors to
force them to withdraw money from the bank. She had inherited money
while she was a minor. The money was in the names of the ex-tutors in
the Commercial Bank of Ethiopia. The court was asked to determine
whether Amselet had a valid claim to the monies deposited. The court
held that Amselet had a claim in rem for the return of the monies. The
court said:

...the suit is directed against the money (property) deposited in a

certain account with the bank. The plaintiff's claim is that she is the
owner of such property. To this end, it is pertinent to see the
demand made by the plaintiff in her statement of claim. The
statement of claim states that there is money deposited in the bank
on behalf of the plaintiff and that the court should order the
withdrawal and the payment of such money to her. The claim is not
that the defendants are debtors of the plaintiff in respect of the
money which is subject matter of the suit and that such defendants
should be compelled to settle such money. In other words, the claim
is not specifically directed at the defendants in person. The
plaintiff's strategy is to get the money deposited in the bank through
the defendants; she did not sue the defendants as her debtors. Eyen
if the defendants are named in the law suit, it is aimed at the money
put in the bank in the names of the defendants. This means the
claim of the plaintiff is a right in rem; it is not a right in personam. 53

Do you agree with the court's analysis? Why? Why not? Without reading
the decision, given the court's finding what do you expect the result in this
case was? How do you arrive at that conclusion?

5. You have a used tissue in your hands. You intend to eventually deposit it
into a waste basket. Before you do someone takes it from you without
your consent. Do you regard the tissue paper as your property? Why?
Why not? Would your answer differ if the object was an old book? A

52
Op. cit., Salmond, at 412.
53 Amleset Taeme v. Aimaz Zewede et a!, Federal First Instance Court, Civil File No.
158/91, Tikemet 30, 1992 E.C. at 3-4 (unpublished, on file with the author).

32
 garden tool? Would your answer be different if you had placed the object
in the waste basket before it was taken? Why?
6. Draft an argument for and one against the following proposition: Scarcity
of material resources in a society gives birth to private property.
7. Are the abilities to use or sell the hallmarks of property?
8. What characteristic of property are captured by the following statements?
a. Ato K can use the computer and prevent others from using the
computer.
b. Ato K owns the computer and can ignore it and leave it unused.'
c. Ato K can agree to transfer the right to use the computer to others.
d. Ato K can sell the computer. t

e. A person who uses Ato K's omputer without his consent will be
subject to sanctions. -' '

f. Ato K can insure the computer against damage or loss.

g. Ato K can sue X for breaking his computer monitor.
h. The police require a warrant to search or seize Ato K's computer.
L Ato K is legally responsible to ensure that the computer is used in
accordance with Ethiopian and international law. -- -
9. Does the following statement capture the essence of private property?
To the world: keep off X unless you have my permission, which I may grant or
withhold. Signed: Private Citizen. Endorsed: The state.
10. It is old law that there is no property in a corpse and well established law
that a person's, body cannot be dealt with without that person's consent, or
the consent of a legally responsible other. Bit is there property in a human
body, and if not should there be? Consider the following case reported by the
BBC:
A US man divorcing his wife is demanding that she return the kidney
he donated to her or pay him $1.5m (Elm) in compensation.
Dr Richard Batista told reporters that he decided to go public
because he was frustrated at the slow pace of divorce negotiations
with his estranged wife. He said he had not only given his heart to
his wife, Dawnell, but donated his kidney to save her life.

54
Op cit, Cohen, at 374.

33
 But divorce lawyers say a donated organ is not a marital asset to be
divided.
Dr. Batista married Dawnell in 1990 and donated the kidney to her in
2001. She filed for divorce in 2005 and a settlement has still not
been reached....
Dr Batista's lawyer, Dominic Barbara, said his client was "asking for
the value of the kidney" that he gave his wife.... -95
Could a similar claim be brought in Ethiopia? If your client instructed you to
bring such a claim what would your view be of the relevance and impact of
Article 18 of the Code and Articles 70 and 573 of the Criminal Code of Ethiopia?
In considering your position you may wish to have reference to the following
articles: See Muireann Quigley, "Property and the Body: Applying Honoré",
[2007] Journal of Medical Ethics 631, and J.K. Mason and G.T. Laurie, "Consent
or property? Dealing with Body and its Parts in the Shadow of Bristol and Alder
Hey", (2001) 64 M. L. R. 710 at 728.
11. "Under a statute, the plaintiff and defendant enjoyed perpetual franchises
of adjoining tracts under the waters of Long Island Sound for purposes of shell
fish cultivation. The plaintiff, supposing the defendant's land to be his own,
deposited oyster shells upon it so that young oysters in the free-swimming
larval stage became attached to the shells and developed into marketable
oysters. The defndant having taken these oysters was sued for conversion".
[In Vroom v. Tilly, 91 N.Y. Supp. 51] the court held "that the plaintiff can
56
recover, as the property is in him".
While it may be relatively easy to see that the accretions to the original
oyster shells belonging to the plaintiff, even though located on the land
of the defendant, could be the plaintiffs property it is more difficult to
determine who if anyone has property in the eggs and larvae of the
oysters. As the author of the referenced note suggests: " In view of the
fact that one healthy, full-grown oyster produces eighty million
(80,000,000) eggs a year, and that it takes a microscope to detect their
presence In water, it would seem at least an impractical question to
determine the character of the property (if any) one may have in them.
The male egg and female egg float freely in salt water till they unite,
when, their specific gravity being increased; they sink and attach to any

55
See http://news.bbc.co.uk/2/hi/americas/7818751.stm (accessed January 1, 2009).
56 As cited in C. G. B. "Oysters--Title, Ownership, and Possession—Things Subject to

Ownership as Property", In "Notes of Cases" 11 Va. L Register 58 (1905), at 61.

34
 hard substance. Up to this point it would seem that there cannot be
private property in eggs in public waters.
Presuming you agree with both positions what does that tell you about the
nature of property?

List of Authorities
Belachew Mekuria, "Human Rights Approach to Land Rights in Ethiopia in Land
Law and Policy in Ethiopia since 1991: Continuities and Changes", in
Muradu Abdo (ed.), Ethiopian Business Law Series Vol. /11(2009).
Blackstone, Sir William. Commentaries on the Laws of England in Four Books.
Notes selected from the editions of Archibald, Christian, Coleridge, Chitty,
Stewart, Kerr, and others, Barron Field's Analysis, and Additional Notes,
and a Life of the Author by George Shars wood. In Two Volumes.
(Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II. Paragraph 3,
Chapter 1: Of Property In General as reproduced by The Forum: at the
Online Library of Liberty.
http://oll.libertyfund.org/index. ph p?option=comcontent&task=view&id=
1278&ltemid=262 (accessed January 28, 2011).
C. G. B. "Oysters—Title, Ownership, and Possession—Things Subject to
Ownership as Property", in "Notes of Cases" 11Va. L. Register 58 1905).
Cohen, Felix S. "Dialogue on Private Property", 9 Rutgers L. Rev. 357(1954).
Fitzgerald, P. J.(ed.). Salmond on Jurisprudence (12th ed.) (London: Sweet &
Maxwell, 1966).
Hamilton, Walton H. & Till, Irene. "Property", in Edwin R.A. Seligman& Avlin
Johnson eds. 11 Encyclopedia of the Social Sciences 528 (1937).
Hobbes, Thomas. Leviathan, Chapter XXX, "Of The Office Of The Sovereign
Representative"
(http://oregonstate.edu/instruct/phl3O2/texts/hobbes/Ieviathan-f.htm I
accessed November 19, 2009).
Kenner, Karl. "The Institution of Private Law in Law and Philosophy" in Edward
A Kent (ed), Readings in Legal Philosophy, (New Jersey: Prentice-Hall, Inc.,
1970).
Locke, John. "Two Treatises on Government", Book II, Chapter 9: Of the Ends
of Political Society and Government, paragraphs 123 and 124

0p. Cit. "Oysters—Title, Ownership, and Possession" 61.

57

35
 (http ://oregonstateedu/i nstruct/phl302/texts/locke/locke2/locke2nd-
c.html accessed February, 2011).
Locke, John. An Essay Concerning the True Original, Extent and End of Civil
Government, Chapter 5 "Of Property"
(http://www.wjmi.org/docs/2dtreat.htm#5chap (accessed Feb/2, 2011).
Mason, J.K. and Laurie, G. T. "Consent or property? Dealing with Body and its
Parts in the Shadow of Bristol and Alder Hey", 64 M. L. R. 710 (2001).
Merrill, Thomas W. and Smith, Henry E. "Optimal Standardization of the Law of
Property: The Numerus Clausus Principle" 110 Yale L.J. 1(2000).
Merrill, Thomas W. and Smith, Henry E. "The Property/Contract Interface",
101:4 Co/urn. L. Rev. 771 (2001).
Morris R. Cohen, "Property and Sovereignty in Law and Philosophy" in Edward
A Kent (ed), Readings in Legal Philosophy, (New Jersey: Prentice-Hall, Inc.,
1970).
Mossoff, Adam. "The Use And Abuse Of lP At The Birth Of The Administrative
State", 157:6 U.Pa.L.Rev. 2001 (2008-2009).
(3rd Ed.) (David P.
Paton, George Whitecross. A Text-Book of Jurisprudence,
Derham ed.) (Oxford: The Clarendon Press, 1964).
Quigley, Muireann. 'Property and the Body: Applying Honoré", [2007] Journal
of Medical Ethics 631.
Reeds, Lee. "What Is 'Property?", 41: 4 Am. Bus. L. J., 459 (2004).
Snare, Frank. "The Concept of Property", 9A. P. Q. 200 (1972).
Sprankling, John G. Understanding Property Law. (Newark NJ.: Lexis Nexis,
1999).
Tawney, R.H. in an extract from the The Sickness of an Acquisitive Society
reprinted in C. B. Macpherson (ed.) Property: Mainstream and Critical
Positions, (Oxford: Basil Blackwell 1978).
Aba Paulos Tzadua, (Trans.), The Fetha Nagast, The Law of the King, (1968).
Waldron, J. "What Is Private Property?" 5:3 OxfordJ. Legal Stud. 313 (1985).
Waldron, J. The Right to Private Property. (New York: Oxford University Press,
1988).
The Founders' Constitution, Vol.1, at 598. http://press-
pubs.uchicago.edu/fou nders/documents/vlch 16s23. html (accessed
November 26, 2009).
http://news.bbc.co.uk/2/hi/americas/7818751.stm (accessed January 1, 2009).

36
 Chapter 3: Objects of Rights in Rem**

3.1 Introduction
It is important to distinguish things which are the subject matter of private
property interests from things which are placed beyond the scope of private
holding. Some things are used commonly by all human beings.' Other things
are placed outside commerce by the law. Things over which private property
rights may be established fall within the purview of the law of property while
those objects over which private property interests cannot be constituted are
put beyond the reach of property law.

Defining things is also important in fields of pñvate law other than property
W.2 A coherent definition of a thing in the context of property law obviously
la
enhances clarity of thought in the study of property law. Without rules clearly
defining an object of property, property rights would have "no starting point at
1.1.,3
al

The property laws of Ethiopia in general, and Book Ill of the Code in particular,
use the terms 'good,' a 'thing,' 'property,' 'corporeal good,' 'a corporeal
thing,' and a 'product' without defining any of these words. In seeking to
understand these many terms one may wonder if they are synonymous with or
distinct from each other, and raise issues related to their scope and
boundaries.

This chapter examines these questions in order to illuminate the stance taken
by Ethiopian law in relation to the meaning and scope of the objects which can
be the subject of property rights. The first section examines how objects of
property are defined by laymen and the law. The second section compares the

**This chapter is a modified version of this writer's article "The Subject Matter of
Property sights: Naming and Meaning" which appeared in 2:2 Ethiopian Journal of
Legal Education 121 (2009).
1
These are things (e.g. the air, the ocean and the heavenly bodies), which, according to
medieval writers, God bestowed upon all human beings for common enjoyment- They
(3JZ1
are also called universal things. See A. Y. Yiannopoulos, Civil Law Property ed.)
(USA, Thomson-West, 1991) at 23-23.
2
In the private law of Ethiopia, the notion of a thing is relevant to the law of contract
(e.g. fungible versus non-fungible things, generic versus specific things) and in some
senses in the area of extra-contractual law.
"Whether natural or legal, an object of property must be clearly identifiable; therefore,
the rules that define it must be determinate. Otherwise, property rights would have no
starting point at all". See Emily Sherwin, "Epstein's Property", 19 QLR•697 (2000) at
703.
z

37
IC
 ways different legal systems address this issue. The third section considers
relevant areas of Ethiopian law. The chapter concludes by trying to put all of
that together followed by review questions.

3.2 Views on the meaning and scope of objects of property

Ordinary people think of a thing as a physical object and the thing itself as
property, either theirs or someone else's .4 This way of understanding property
is not sufficient for the purposes of property law. First it does not capture the
many incorporeal things which are the subject of property law. Secondly it
does not adequately capture the five dimensions of property found in law
namely: tjjghtsiearer (the subject), the object over which property rights
are exercised (the object), the sovereign right accorded to the subject over the
object (content of the rights), the sphere beyond which a holder of property
right cannot go (limitations) and justifications for bestowing semi-sovereign
rights in respect of an object upon the subject (justification).-5
A second approach defines things as property which can be potential objects of
legal rights.6 This view includes tangible and intangible things. Sherwin states
that objects of property must be clearly identifiable:
An object of property is simply the subject matter of the right. It may be a
self-defined physical thing or a legal thing defined by means of
determinate rules. Land, for example, is a physical thing, but a lease or a
fee tail estate in land is a legal thing, defined by legal rules.7
However this makes the boundaries of property law too fluid. This definition
encompasses objects that would not ordinarily be the-subjects of property law.
For example,it could include reputation as the object of a person's right not to
be defamed (which is considered as an aspect of human personality rather
than property). If a person tarnishes the name of another person, the right of
the victim of defamation to claim compensation in a court of law lies against
the person of the defamer not against the world. It is not a right in rem and
thus not property. This definition identifies the seat of all legal rights; yet,

12th
4 See Marcel Planiol, Treatise on the Civil Law, Vol. 1. Part II Ed. (St. Paul; West
Publishing Co; 1939) at 28. Planiol calls the subject matter of property rights
"property". For example, he writes: property embraces "houses, lands, movable
objects, credits, bonds, royalties, trademarks." The word 'property therefore includes,
besides material things, a certain number of kinds of incorporeal property which are
rights, such as credits, income from investments, offices and trademarks.
Craig Anthony Arnold, "The Reconstitution of Property: Property as a Web of Interests",
26 Hat-v. Emit!. L. Rev. 281 (2002).
6 Op cit Paton. Text-Book, at 456.

' Op cit. Sherwin, at 703.

38
 what we are looking for is the seat of one of the legal rights, i.e., property
rights, which belong to the domain of patrimonial rights (rights assessable in
monetary terms). Austin defines a thing as "such permanent objects, not being
persons, as are sensible or perceptible through the senses"'." He employs the
phrase 'permanent objects' to mean objects that are repeatedly perceptible.
The capacity to repeatedly perceive an object using the five senses means the
thing must have a certain element of permanence. This distinguishes a thing
from a fact or n event. For example a puff of smoke would not normally be
regarded asØhing as it is too transient.

A thing nüit also have a certain element of physical unity. Austin views an
object s property even if itdôes óFhi an oner'or
w economic value.
Austii understanding of a thing excludes incorporeal property like copyrights,
pateit, industrial designs, trademarks and trade names which cannot be
perceived but only conceived by the intellect. Austin's definition encompasses
all physical objects in space (including the sun, the air and the sea) regardless
of their pecuniary value and of their susceptibility to human appropriation.
Austin's definition does not permit the treatment of aspects of human
personality as objects of property interests. It excludes personal characteristics
like appearance, physical strengthcharisma, humor and talent, which at times
are a source of wealth and power. As an advocate of self-ownership, Nozik
conceives the object of property as going beyond entitlement over external
resources to encompass the body of th right bearer.1° Besides, Locke

8
cited in op. cit., Paton, at 457. )
Kenneth R. Minogue, "The Concept of Property aid-lts Contemporary Significance in
Elizabeth Mensch and Alan Freeman (eds), The International Library of Essays in Law
and Legal Theory Areas: Vol. 1 Property Law. (USA, Ashgate Dartmouth, 1992) In
contrast Minogue calls these attributes passive property which can be used to advance
a person's interests and can at times be more useful or valuable than material/tangible
property. The objects of property may include personal attributes such as quick wits,
strong hands and green eyes which might be as good as, at times even better than,
owning a plot of land or a factory. Minogue calls these attributes passive property.
10
James W. Harris, "Rights and Resources-Libertarians and the Right to Life", 15 Ratio
Juris. 2(2002) at 118. Robert Nozick, as a proponent of particular version of liberalism
called libertarianism, has advocated for a minimalist state where in relation to
property an absolutist version of it prevails in a society. See also op. cit. Mason and
Laurie, "Consent or Property?" for the argument that there are good reasons and the
time has come to recognize property rights in the human body. Some libertarians
argue for full self-ownership enabling an individual to transfer himself by sale or gift.
Others including Locke argue for limited self ownership in the sense there are
necessary limits such as one is prohibited from enslaving himself. See: Peter
Vallentyne, "Libertarianism, in Edward N. Zalta (ed.)The Stanford Encyclopedia of

39
 conceives the subject matter of property broadly to include partial self-
ownership as well.11

33 Laws of other jurisdictions

There is a resemblance between many of the concepts embodied in Book Ill of
the Code and the property law notions found in Roman law and continental
civil law. Roman law was the foundation of the legal systems of western
countries such as France and Germany. The laws of France and Germany in
turn, to a varying degree, have found their way into the Ethiopian legal system,
12
its property law included. This historical nexus is important to our
understanding of the Ethiopian law of property.

Roman jurists grappled with the clarification of the concept of a thing, but
wereunable to avoid the ambiguity of the term. The Romans employed the
1 • '
terrnrs 3 to convey two meanings, i.e., both physical objects in space and
economic interests (rights having a pecuniary value protected by law).
Sometimes res was used to mean physical objects and the rights which exist

Philosophy (Fall 2010 Edition), http://plato.stanford.edu/entries/Iibertarianism/ (last

accessed 27 May 2009).
See op. cit Locke, "Of Property", paragraph 26 "Though the earth and all inferior
creatures be common to all men, yet every man has a "property "in his own "person".
This nobody has any right to but himself. The "labour" of his body and the "work" of
his hands, we may say, are properly his". See also op. cit. Arnold, "Web of Interests",
who stated, in criticizing the bundle of rights approach to property, that: "...there is no
reason to assume that recognition of property interests in intangibles makes all
intangibles possible objects of property rights. For example, American law recognizes
property interests in business goodwill, but not friendship; in love songs, but not love;
in celebrity identity, but not personality; and in expressions of ideas, but not ideas
themselves" at 292.
12
As stated in Chapter 1, the drafter of the Civil Code, Rene David stated that the legal
rules found in Book Ill of the Code were selected from Ethiopian traditions and
restated using the legal concepts developed in Europe. In his view property law
concepts like private ownership and possession of land, buildings, agricultural
implements predated the Code and were merely included in the Code using western
legal language and drafting. The law was not imported but rather selected and
codified. George Krzeczunowicz disputes that and argues that the outlets for
customary laws in the Code are extremely limited and that the then state policy
viewed customary laws as undermining the social, political and economic progress of
the country. Op. cit. George Krzeczunowicz, "Code and Custom". As argued in Chapter
1 there is ample evidence of the wholesale importation of property rules from civil law
jurisdictions such as France and Germany into the Civil Code both in terms of legal
concepts, principles and language as well as drafting techniques.
13
ln Latin, the word means things.

EN
 over them and other times res was used in a much broader sense to include
tangible objects and intangible rights.
Since res referred solely to rights of a pecuniary value, the word did not apply
to rights governed by the law of persons. For example, personal liberty and
paternal authority were not res, since they were not susceptible of evaluation
in money. It should also be mentioned that the word res was not always
confined to rights in rem but was also applied to obligations, i.e. rights in
personam.14

In Louisiana, under Article 448 of the Civil Code, the word estate applies to
"anything of which riches or fortune may consist"'. -5 After careful analysis of
that Code Yiannopoulos concluded the words "estate" and "thing" are
synonymous under the Code. He examines Roman, German, French and Greek
law and proposed that the word 'things' should be "applied narrowly to
physical objects and rights having a pecuniary value, susceptible of
appropriation, and broadly physical objects in space regardless of their
pecuniary value and their susceptibility of appropriation."16
In French law commentators distinguish between biens (estates) and choses
(things). The French Civil Code defines neither term and appears to use them
interchangeably. It is now a settled view in French property law that the word
'choses' applies "to anything existing in nature, whether or not susceptible of
appropriation, while the word biens should be reserved to designate of
17
"riches or fortune". Domat has succinctly described choses as everything
that God created for human beings.18 Thus, "...all biens are choses while not all
choses are biens. The sea, the air and the sun are chases . but not biens.
Objects susceptible of appropriation are biens not only when they belong to
someccne in particular, but also when they belong to no one.... Biens may be
corporeal or incorporeal or movables or immovables".19
The German Civil Code treats the object of property rights in a different and
arguably more coherent manner, perhaps because of the abstractionist
element induced into it by the pandectist school (i.e., a school of thought
which influenced the codification of the German Civil Code) and perhaps
because it came later than both the' Louisiana and French civil codes and thus

14A. N. Ylannopoulos, "Introduction to the Law of Things: Louisiana and Comparative

Law", 22 Louisiana Law Review 756 (1961-1962) at 760.
15
Ibid., at 756.
16
Ibid., at 759.
17
Ibid., at 761.
18
Ibid.
19
Ibid.

41
 had the benefit of hindsight. In the German Civil Code, a distinction is made
between an object and a thing. The former is a generic term which may be
corporeal or incorporeal and includes anything that can be the subject matter
of legal relationships, with the exception of personal relations. "Things" are
only corporeal objects of the impersonal nature, which are subject of
20
appropriation.[sic]"
A thing in German law has three characteristics: corporeality, individuality and
is subject of appropriation. Whereas in Roman law only tangible objects are
corporeal, in German law an object is corporeal if it can be perceived by any of
the human senses. Natural forces and energies (e.g., heat, light, sound,
electricity, and radioactivity) are regarded as incorporeal and are thus not
things. Rights, universalities, and aggregate of things are incorporeal objects
.21
and thus are not things
Things are only individual objects, having a well defined existence in space. Air,
the sea, running water are not things. Fruits of trees are not things before
separation because they are part of the tree. Gases, whether natural or
artificially produced, acquire individuality and become things as soon as they
are put in containers. Lands acquire individuality by the human activity of
fixing boundaries.
Only objects which can be appropriated are "things". The sun, the stars, which
no man can have as his own, are not "things". Living human bodies and parts
thereof, are not "things" because these are expressions of man's moral
personality rather than objects of pecuniary rights. Upon death, however,
human bodies become "things". Parts of human body become "things" upon
.22
their separation

3.4 Ethiopian Laws

We now turn to an examination of how Ethiopian law defines the subject
matter of property.
3.4.1 The Constitution
The Constitution provides a definition of private property. Article 40 (2) states:
"Private property", for the purpose of this Article, shall mean any tangible
or intangible product which has value and is produced by the labor,
creativity, enterprise or capital of an individual citizen, associations which
enjoy juridical personality under the law, or in appropriate circumstances,

20
Ibid, at 762.
21
Ibid."
22
Ibid., at 762-763.

42
 by communities specifically empowered by law to own property in
common.
The previous three constitutions of Ethiopia did not offer a definition of private
property. They did not go beyond outlining in broad terms the idea that the
right to private property was guaranteed and its limitation had to comply with
due process of law. The 1987 Constitution explicitly rejected private
ownership of productive assets.23
Sub-article 40/2 defines private property as a tangible or intangible "product"
which is produced by persons or communities and has "value". It is unclear if
the term 'value', only means the economic value of a product or includes
spiritual, historical, scientific sentimental or other values. To be property,
tangible and intangible products must come from labor (physical or intellectual
efforts), creativity, enterprise or capital (the products of business or generated
by investment). Although the Constitution focuses upon the means of
producing products which can be the subject ofJvateproparty, it should not
be read as excluding things obtained by a person without expending an ounce
of labor or capital (e.g. through donation, testament, sheer chance, and the
application of the law of lost and found objects) from private ownership.

The definition suggests that the framers did not consider land and natural
resources to be private property as neither can be produced by man. The
drafters adopted the sweat and brows doctrine of private property; that is,
that which is attributed to your labor rightfully belongs to you; that which is
not traceable to your labor is not yours. The FDRE Constitution, like the PDRE
Constitution, completely departs from the Code, and removes land and natural
resources from private property. They are instead collectively owned.
However persons may use and access land and natural resources and the
products they produce can be private property. It is ownership that is limited.

3.4.2 The Civil Code

The words "goods", "chattels" and "thing" are used in the Code to describe the
object of property. They are not defined anywhere in the Code. The omission
has left the definition of a central notion open to conjectures and conflicting

23
See Articles 27 and 43 of the 1931 Constitution of Ethiopia. These provisions tended to
equate property with 'genzebe', land and rights connected to land. Without being
concerned about the definition of the object of property, Articles 43 and 44 of the
Revised Constitution of 1955 elevated property to the status of life and liberty and
envisaged the need for lawful limits on the right to property. Article 22/c, the 1952
Eritrean Constitution treats contractual rights as property. Articles 26, 136, 137 and
139 of the Draft Constitution of 1974 follow the pattern of the Revised Constitution in
the sense that the object of property is not defined.

43
 messages.24 It is difficult to find a consistent and accepted definition of these
terms in Ethiopian law.

Article 1126 helps us to identify the object over which property rights may be
created. It states: All goods are movable or immovable. While the English
version says "all goods." the French version says "corporeal goods."25 The
governing Amahric version uses the words "gezufeiéfyoIachew nebretoch,"
whose literal translation is corporeal properties. The title Book Ill is 'Goods'.
The title of Book Ill in the French master text is 'Biens'. As noted above in
French law the word biens means all objects, whether corporeal or
incorporeal, movable or immovable, having economic value and capable of
human appropriation. -

The word "thing" is also used repeatedly in the Code.26 Presuming the French
interpretation applies to it as well the word thing would be equivalent to
choses. In French law choses include anything existing in nature, whether
susceptible of appropriation or not. However the word thing is used in the
provisions of the Code which deal with possession and joint ownership of
corporeal things and incorporeal things like ownership of intellectual
27
property and other economic interests not connected to any physical
resource such as a share in a share company.28 The numerous articles in Book
Ill of the Code relating to intangible things should also be taken note of.29 Thus

24
Some think that the term "good" is a synonym with "thing" in Book III of the Code. See
for example, Fasil Alemayehu, Teaching Material on Property Law of Ethiopia, (On file
with the author: Unpublished, 2008) at 22. Others think that the term "thing" refers to
physical things which can be appropriated while the term "goods" is broader, referring
to any subject matter of property rights, be it tangible or intangible thing. See also
Aman Assefa, A Module on Property Law of Ethiopia, (On file with the author:
unpublished, 2007) at 11.
25BililIign Mandefro, Revised Unauthorized Unofficial Translation of Arts. 1126-1674 of
Book Ill of the Ethiopian Civil Code (1960) From the French Original Draft (1973-1975).
26
See for example the following articles: Article 1140: "Possession consists in the
actual control which a person exercises over a thing"; 1188: "Ownership shall be
extinguished where the thing to which it extends is destroyed or loses its individual
character"; and 1257 (1) TMA thing may be owned by several persons as joint owners
thereof."
27
See Article 1647/1 of the Code which bestows ownership upon an author on her
artistic and literary works. Commonsense reveals that the ownership of an intangible
asset such as a copyright is not the same as the ownership of tangible assets such as a
computer. The former cannot be physically detected; the latter can be.
28
See Article 1349 of the Code.
29
See Articles 1128, 1167, 1309 and 1347-1352 of the Code. See also provisions relating
to servitude, right of recovery, preemption and promise of sale as these are property
rights connected to either movable or immovable objects.

44
 while the Code when drafted may have been intended to apply to things as
known in law at that time (some 60 years ago) the wording is flexible enough
to enable it to encompass new and emerging forms of property rights. This is
consistent with a view of the Code as an expression of the express aspiration
that the Code regulates the proprietary relationships, whatever they may be,
of future generations of Ethiopians.30
The organizational structure of the Code assists us in understanding the
language used in it. Books I and II of the Code deal with legal personality and
legal capacity of persons; and Book Ill is about rights in rem (property interests)
held by a person that she might assert against the world in respect of a good,
corporeal or incorporeal, while parts of the Code, Books IV and VI, are about
rights in personam, claims which a person may assert against another person.
This edifice of the Code is founded upon the core notion in civil law of legal
rights as a dichotocomy of patrimonial and rights. Extra-
patrimonial rights refer to all rights which cannot be quantified in terms of
money while patrimonial rights relate to rights which can be assessed in
monetary terms, be they located on a thing or n6t.31 The civil law divides
patrimonial rights into two, namely rights in personam (contractual claims
against a person) and rights in rem (rights located on appropriable things).
Book Ill of the Code is about rights in rem and rights in rem must bear upon a
subject matter, which may be corporeal or incorporeal.
Much like the Louisiana Civil Code it seems, on a contextual reading of those
provisions of Book Ill of the Code employing the terms 'goods' and
that they are used interchangeably. It is the view of the writer tha.. one
definition should apply to both and it should be the definition of goods. It is
submitted that the word 'goods' as used in Book Ill of the Code should, for the
purpose of consistency and academic discourse on the Ethiopian property law,
be taken to mean anything that is capable of appropriation.
What does the term 'goods' mean in the context of the Code? Under Article
1126 all goods are movables or immovable. Under Article 1130 lands and
buildings are deemed to be immovables. Under Article 1127 movables are
described as c, rpprealceis: "Corporeal chattels are things which have a

30
See Rene David, "A Civil Code for Ethiopia: Considerations on the Codification of the
Civil Law in African Countries", 37 Tul. L. Rev. 187 (1962-1963) and Michael Kindred,
"Reading on the Historical Development of Ethiopian Civil Law" (A Teaching Material,
Addis Ababa University, Law Library Archive, Unpublished 1968-1969) at 108-109.
31
Fora detailed analysis of the concept of patrimony, see op. cit. Planiol, at 265-278. See
also Charles Aubry and Charles Rau, Droit Civil Francais, Vol. 11, 7 ed. (An English
Translation by the Louisiana Law Institute), (St. Paul Minn: West Publishing Co., 1966)
at 1-8.

45
 material existence and can move themselves or be moved by man without
losing their individual character."

The word "chattel" is a term used in common law jurisdictions to describe

movable items of personal property as opposed to real property (at common
law immovable property namely land and buildings). Thus this article seems to
be describing corporeal movable goods. The following two articles deem
intangible or incorporeal types of things to be corporeal chattels.

Article 1128. Unless otherwise provided by law, claims and other

incorporeal rights embodied in securities to bearer shall be deemed
to be corporeal chattels.
Article 1129. Unless otherwise provided by law, natural forces of an
economic value, such as electricity, shall be deemed to be corporeal
chattels where they have been mastered by man and put to his use.

An overall reading of Book Ill of the Code reveals that goods are objects,
tangible or intangible, over which property rights can be asserted. These
property rights include individual or joint ownership and rights less than full
ownership such as usufruct, servitude, rights of recovery, right of promise of
sale and right of preemption.

3.4.3 Other Ethiopian Laws

The Commercial Code of Ethiopia does not propose to Identify and define the
subject matter of property. However, one can Infer from the various
32
provisions of the Commercial Code, movable and immovable things,
33 34
business, intellectual property, shares in the six types of business
35
associations permitted by the Commercial Code, insurance policies36 and
37
commercial instruments are things over which property rights can be
established. The Commercial Code seems to capture within its scope the
protection of the commercial interests of all things which serve as the seat of
commercial interest, be it a right in rem or in personam. If this is the case, the
conception of a thing under the Commercial Code of Ethiopia is broader than
the meaning attached to it under Book Ill of the Civil Code.

32
Articles 5/1&2, 35/2 and 561 of the Commercial Code.
33
Article 124 and 127 of the Commercial Code.
34
Articles127/1a) and 148-149 of the Commercial Code.
35
Articles250, 274, 283, 302, 345, 522 & 523 of the Commercial Code.
36
See Articles 654-712 of the Commercial Code which indicate the possibility of insuring
interests established over movable and immovable corporeal assets as well as
intangible assets including human life.
37
Articles715, 716 and 732 of the Commercial Code.

46
 Book IV of the Criminal Code of Ethiopia, consists of seventy two articles and is
entitled 'Crimes Against Property'.38 This portion of the Criminal Code divides
39
property into movable property, immovable property,40 rights in property41
(e.g., cheques and insurance), intangible property42 (e.g., trademark, copyright
and goodwill) and claims of creditors.43 One can see that the Criminal Code
uses the term 'property' in its broadest sense as any appropriable subject
matter which has pecuniary value. It encompasses tangible and intangible
things. It also describes the claims of creditors directed solely against a person
as property.44 The purpose of criminal law is to safeguard the economic
interests of persons in tangible and intangible assets including debts. Thus the
Criminal Code protects, in relation to property, both rights in rem and rights in
personam. In this sense, not all things, regarded as property in the Criminal
Code, are things in Book Ill of the Civil Code.
Articles 57-73, and Articles 85-93 of the Revised Family Code are devoted to
the treatment of matrimonial and personal property. Articles 57-73 of the
45
Revised Family Code use various terms including 'personal property,'
'common property,' 46 'immovable property,' ' 'movable property,' 48
'Income'49 and 'debts.'50 The term 'property' includes tangible and intangible
property over which property rights are established in favor of a husband and
a wife commonly or in favor of one of them personally. It includes contractual
rights. One does not expect the Revised Family Code to distinguish property
rights from contract rights as its purpose is not to do that; rather it aims at

Also see Articles 849-862 of the Criminal Code "Petty Offenses", which deals with
minor offenses directed against property.
39
Articles 665-684 of the Criminal Code. Also see Article 665/3 which divides movable
things in terms of value-those with 'very small economic value" and those with higher
economic value. See also Articles 669/1 and 681/2 of the Criminal Code which deal
with "sacred or religious objects or objects of scientific, artistic or historical value...'
° Articles 985-688 of the Criminal Code.
41
Articles 692-716 of the Criminal Code.
42
Articles 717-724 of the Criminal Code.
43
Articles 725-733 of the Criminal Code.
"This inference is substantiated by Article 662/1, one of the general provisions of Book
IV of the Criminal Code, which employs the phrase: "Any interference with property
and economic right or rights capable of being calculated in money forming part of the
property of another.
4S
Article 57 of the Criminal Code.
46
Article 63 of the Criminal Code.
47
Article 68/1/a of the Criminal Code.
48
Article 68/1/b of the Criminal Code.
49 Article 62/1 of the Criminal Code.
5°
Articles 70-71 of the Criminal Code.

47
 regulating the pecuniary relations of a husband and a wife as well as third
parties in the course of marriage and after dissolution of the marriage,
whatever that pecuniary relationship may be.

3.5 More on the meaning of the subject matter of property

rights
It is the suggestion of this writer that 'a good' within the meaning of the Code
should be understood to mean anything capable of human appropriation, be it
tangible or intangible, that is, any appropriable corporeal or incorporeal thing.

A good is corporeal if it is capable of human perception meaning it can be

touched, smelled, tasted, seen, or heard. incorporeal property does not have
those qualities. It exists in the human imagination as ideas or concepts. It
includes intellectual property rights such a patent, trademark and copyright
and the rights found in negotiable instruments like cheques and securities
payable to bearer. They can also include forces of nature like electricity51.

A person may acquire a good through any means permitted by law. For
instance, a person may have an interest in a good after investing her time or
money or labor in it. Or a person may come into possession of a good upon
the death of her relative or by chance, for example, by finding an abandoned
watch. A good may be appropriated collectively or privately. Some countries
allow individuals to appropriate certain resources but do not permit them to
appropriate others. In Ethiopia, for instance, private persons cannot have
control over land in the sense of individual ownership; but individuals can have
property interests in tracts of land short of individual ownership. How a good
is acquired is not relevant to the determination of whether it is a good or not.

It is not necessary for a good to have an economic value to be property at law.

The good may be invaluable, have negligible value or be worthless. Thus my
handwritten note areOI, the course extboojpoejty, the building
where the class is taught is property. The object, from the point view of the
53
holder, might have just a spiritual, historical, scientific 2 or sentimental value.

51
SeeArticle 1129 of the Code which reads: Unless otherwise provided by law, natural
forces of an economic value, such as electricity, shall be deemed to be corporeal
chattels where they have been mastered by man and put to his use.
52
SeeArticles 669/1 and 681/2 of the Criminal Code which protect objects with historical,
archeological, scientific value. These objects are owned by the nation as a whole and
are seen as not commodities but as objects of special character.
53
See Article .094 of the Code which deals with family objects seen as having
sentimental value to heirs.
 A thing can be the object of property law even if its economic value ranges
from thatwhich has an insignificant economic value to that which is invaluable.
In the definition proposed here includes a requirement that the good be
"capability of appropriation". Thus the good need not be appropriated but it
must have the potential to be appropriated.-r4 The term "appropriation'
signifies exclusive control of a thing by a person or a group of persons. It
normally refers to the physical and legal possibility available to a person to
retain and enjoy such a thing and with the right to require others to abstain
from doing the same. If a person cannot control an object, then the object is
not a thing in property law.
A person may be preciuded from appropriating a good because of legal
impossibility or physical impossibility. in some cases, the appropriation of
specific types of property is prohibited at law. For example, human slavery is
rohibited. There is a universal consensus that a human being cannot be taken
as property. The declaration in Article 1 of the Code that "the human person is
the subject of rights from birth to death" is in line with the wider recognition of
the proposition that persons are the subjects who have property rights, and
things are the objects of those property rights in contemporary society.
Persons own things, and things are owned by persons. There is an
absolute divide between persons and things. If persons own
persons, we would be back to the slave economy of the ancient past.
Indeed, it is because persons and things are strictly opposed as
subjects and objects of property right[s] that it is possible for two
persons to exchange things they own in a market. A person and a
person exchange a thing and a thing with one another—this is the
&ementary form of market exchange. 5-5

54
See Article 1151 of the Code.
lawl Katsuhito, Persons, "Things and Corporations: The Corporate Personality
Controversy and Comparative Corporate Governance", 47 Am. J. Comp. L 583 (1999)
at 587. If human beings are put beyond commerce, some of their parts are not. People
may with the full blessing of the law transact parts of their body. Contemporary
legislation enables transactions of certain body parts. For example donations of blood
or cornea are valid. Article 18/1 of the Code prohibits a person from disposing of parts
of their own body before death where to do so would cause serious injury to the
integrity of the human body. This and subsequent provisions are designed to enable
appropriate and consensual medical procedures and surgeries to be carried out. The
provision implies that a person may dispose of their dead body as they see fit. But see
Article 573 of the Criminal Code of Ethiopia which makes it illegal to obtain money or
other advantage from dealing with a corpse or cody part. It is arguable that
transactions relating to a dead human body or part thereof, or part of a live person 15
permissible if those transactions are entered into for free.

EM
 The law's view of what may not be the object of property rights is dynamic and
varies with time, culture and place.
Sometimes a person cannot appropriate a thing because it is practically
impossible to do so. No one in the world can claim to have control over
universal things like the sun and its rays in their entirety. Likewise, the air, the
seas, the wind and other natural phenomenon/forces belong to humanity as a
whole. In effect, their enjoyment by one does not exclude a similar use by
another person, nor does their use by all human beings lead to their depletion.
However with the aid of technology man has mastered some aspects of them.
Thus for example man has appropriated a certain quantity of the sun's energy
for heat and light. Oxygen is contained and used to treat the ill. Electricity is
generated from water; air is compressed and used to fill a car's tires.
There are those who argue that universal things could be made objects of
human appropriation but as a matter of policy, giving control over these
resources to a few is undesirable. According to this view, there is nothing upon
this planet which by its nature cannot be appropriated for the profit of man.5"
An assumption is made that all things are by their nature susceptible of
ownership and that considerations of public utility and convenience require
certain things to be withdrawn, wholly or partly from the sphere of private
relations. Otherwise, for example, a powerful nation could seek to force
others to pay to use the sun's rays. This would amount to the appropriation of
universal goods for the betterment of that nation or its rulers and to the
detriment of others. Universal things are therefore withdrawn from private
alienation because of their feature as public goods.

3.6 Conclusion
There are adequate reasons to name the object over which property rights are
located in the Code as goods. The chapter conceives goods as corporeal or
incorporeal things capable, in practical and legal senses, of appropriation by a
person. The scope of the meaning of goods is not confined to things external
to human beings. Under the conception of self-ownership (which is merely
touched upon but not pursued in this chapter) parts of the human body may
be the subject of property interests. Under other Ethiopian laws like the
criminal, commercial and family law, the notion of goods may be broader than

56
Article 9/1 of the Code declares rights of personality (e.g. restriction on freedom,
searches, domicile, thought, religion, freedom of action, marriage and divorce) to be
out of commerce. But sub-article 2 of the same article indicates the possibility of
putting these rights of personality in commerce if a legitimate interest requires it.
57
See Article 1128 of the Code which deems mastered natural forces as movable things.
Op. cit. Planiol, at 816.

50
 objects of rights in rem. This justifies purpose-oriented approach in the
definition of the notion which is pursued in this chapter.

3.7 Review questions

1. "A thing is such permanent object, not being persons, as are sensible or
perceptible through the senses; permanent objects in the sense that they
are perceptible repeatedly".59 Using this definition which of the following
are things?
(a) My trouser; (b) a flower; (c) my name; (d) a field of teff; (e) my
right to publish and sell this book; (f) my salary; (g) the sun, and (h) a
puff of smoke.
2. This chapter has concluded that the seat of property rights as
encapsulated in Book Ill of the Code should sensibly be termed as "goods",
be they corporeal or incorporeal, which can be appropriated by a person.
Which of these same things are also goods within the definition offered in
question 1? What is the significance of the difference?
3. Article 573/1 of the Criminal Code of Ethiopia states: Whoever, with
intent to obtain money or another advantage:
a. Gives while alive his organ or a part of his body to another; or
b. Enters into a contract with another person or institution to give
his organ or a part of his body after his death is punishable with
simple imprisonment or fine.
Do you think that this provision should lead to the prosecution of X who
donates her natural hair to another person? What about a person who donates
her blood to another person? Would the following provision make a
difference? Article 70 of the same code prescribes: (1) A crime is not liable to
punishment where it is punishable upon complaint and where it is done with
the consent of the ñctim or his legal representative. (2) Without prejudice to
the provision of Article 573 of this Code, when any person, having entered into
a contract of his own free will without any commercial purposes, donates while
alive or causes to be donated after his death, his body, a part of his body or
one of his organs to another person for personal use or to a juridical person for
appropriate and necessary scientific research or experiment, the recipient shall
not be criminally liable.

List of Authorities
Aman Assefa, A Module on Property Law of Ethiopia, (On file with the author:
unpublished, 2007).

59
Op. cit. Paton, Textbook at 456.

51
Arnold, Craig Anthony. "The Reconstitution of Property: Property as a Web of
Interests", 26 Harv. Envtl. L. Rev. 281 (2002).
Aubry, Charels and Rai, Charles, Droit Civil Francais, Vol. 1!, 7" ed. (An Engllsh
Translation by the Louisiana Law Institute), (St. Paul Minn West
Publishing Co., 1966).
Bilillign Mandefro, Revised Unauthorized Unofficial Translation of Arts. 1126-
1674 of Book III of the Ethiopian Civil Code (1960) From the French
Original Draft (Addis Ababa University, Law Library)(1973-1975).
David, Rene. "A Civil Code for Ethiopia: Considerations on the Codification of
the Civil Law in African Countries", 37 Tu!. L. Rev. 187 (1962-1963).
Fasil Alemayehu, Teaching Material on Property Law of Ethiopia, (2008).
Harris, James W. "Rights and Resources-Libertarians and the Right to Life", 15
Ratio Juris. 2 (2002).
Katsuhito, lawi. "Persons, Things and Corporations: The Corporate Personality
Controversy and Comparative Corporate Governance", 47 Am. J. Comp. L.
583 (1999).
Kindred, Michael. "Reading on the Historical Development of Ethiopian Civil
Law" (A Teaching Materia, Addis Ababa University, Law Library Archive,
Unpublished 1968-1969).
Krzeczunowicz, George "Code and Custom in Ethiopia", 2:2 Eth. J.L. 425
(1965).
Mason, J.K. and Laurie, G. T. "Consent or property? Dealing with Body and its
Parts in the Shadow of Bristol and Alder Hey", 64 M. L. R. 710 (2001).
Minogue, Kenneth R. "The Concept of Property and Its Contemporary
Significance" in Elizabeth Mensch and Alan Freeman (eds), The
International Library of Essays in 'Law and Legal Theory Areas: Vol 1
Property Law (USA, Ashgate Dartmouth, 1.992),
Paton, George W. A Text -Book of Jrisprudence, (3 Ed), (London: Oxford
University Press. 1964).
Planiol, Marcel. Treatise on the Civil Law, Vol. 1. Part 11 12' Ed. (Translated by
the Louisiana State Law Institute) (St. Paid; West Publishing Co; 1939)'.
Sherwin, Emily "Epstein's Property", 19 QLR 697 (2000).
Vallentyne, Peter. "Libertarianism", in Zalta, Edward N. (ed.) The Stanford
Encyclopedia of Philosophy (Fall 2010 Edit ron)
http://plato.stanford.edu/entries/iibertarianism/ (last accessed 27 May
2009).
Ylannopoulos, A. V. Civil Law Property 3d ed.) (USA, Thomson-West Publisher,
1991).
Ylannopoulos, Athanassios. "Introduction to the Law of Things: Louisiana and
Comparative Law", 22 Louisiana Law Review 756 (19611962).

57
 Chapter 4: Primary Classification of Goods**

4.1 Introduction
Book Ill of the Code divides goods into those which can be appropriated and
those which cannot be. The Code tacitly classifies those goods which can be
appropriated into corporeal and incorporeal goods. Corporeal goods, that is,
things which can be perceived using human senses, are further classified into
movables and immovables.2 Movables and immovables are comprised of the
principal thing itself together with its intrinsic elements and accessories. All of
these classifications are necessary to resolve issues of ownership, possession,
transfer or other aspects of property rights when transactions occur and
disputes arise.
Articles 1126-1139 of the Code which set out the primary classifications of the
objects of property law suffer from inconsistent terminologies, mistranslations,
vagueness and lacunas. In this Chapter we will closely review these provisions
and seek to interpret them in a way that clarifies and makes sense of them.

4.2 Criteria of classification into movables and immovables

If a thing can normally move or be moved without losing its individuality then it
is a movable thing. Movables are not fixed in place. Immovables are fixed in
place. They cannot move or be moved. Lands and buildings are immovables.3
Where there can be some dispute about the nature of objects the law deems
certain things to be movable or immovable.

**This chapter is a modified form of an article written by the author and previously
published as "Movables and Immovables under the Civil Code of Ethiopia: A
Commentary", 1:2 Jimma University Law Journal 245 (2008).
1
Book Ill is entitled "Goods". It appears the drafter considered it obvious and thus
unnecessary to explicitly divide goods into those which can and cannot be
appropriated. This classification is sometimes referred to as the distinction between
common, public and private things; or things that are in commerce or out of
commerce. See op. cit Yiannopoulos, Low of Things, at 763-764.
See Articles 1126 - 1139 of the Code. The English version of Article 1126 of the Code
classifies "all goods" into movable and immovable indicating the major division of
things in the Ethiopian property law.
See article 1130: "Lands and buildings shall be deemed to be immovables.

53
4.3 Reasons for the classification
The first reason for the division of property into movables and immovables is
to bring sense and coherence into the study of property law. The second is
policy. Throughout history, societies have organized and classified goods
according to their importance to the community. Thus a fishing community
gives greatest value to its fishing grounds and implements, a pastoral
community to grazing land and cattle or camels, an agrarian community to
farmland, an industrial society to things in commerce including, and in the case
of a technologically advanced society, intellectual property.
Before. the sixth century, things, in Roman law, were divided in accordance
with their economic and political significance. Over time land, cattle, and
beasts of draft and burden achieved economic and political dominance.4
Roman jurists began to view distinctions based on importance cumbersome
and fluid and Emperor Justinian introduced the division of things into movables
and immovables.5 This classification was thought to bring greater legal
certainty.6
During the Byzantine period, between the fourteenth and sixteenth centuries,
jurists imported this distinction into the civil law tradition. German law still
defines immovable as tracts of land and their essential component parts; and
movables as things which are neither tracts of land nor essential component
.7
parts of tracts of land The distinction was adopted into other continental civil
codes and from there it was transplanted to several countries in Asia and Africa
including Ethiopia.8
Although common law jurisdictions do not use the words movables and
immovables the underlying concepts are very similar. For example, in the
United States, the subject matter of property rights is divided into "real
property" and "personal property". In general terms, real property means
anything that is part of the land or which is attached to the land and anything
which is incidental or appurtenant to land or which is considered immovable
by law whereas personal property means those items which are movable. Real

4
These early legal traditions focused upon durability and utility rather than whether an
object was movable by nature.
5
John H. Merryman & David S. Clark, The Civil Law Tradition: Europe, Latin America
and East Asia (Virginia: The Michie Company Law Publishers, 1994) at 30.
6
Ibid.
See Articles 93-96 of the German Civil Code (as revised in April 19, 2007).
Op. cit. Merryman & Clark, Civil Law.

54
property includes land and buildings.9 In the civil law tradition of Ethiopia the
equivalent of things incidental or appurtenant to land are referred to as
accessories and intrinsic elements of land and buildings.
In 1922 the then USSR sought to abolish the concept of private ownership of
property, particularly of land. The new civil code replaced the distinction
between movable and immovable property and new divisions between
personal property, state property, cooperative property and things of
production and consumption were adopted.'° The abolition led to state
ownership and hence the removal of all land from commerce. Only one
residential building could be owned. This was done to. remove feudal concepts
of social, political and economic status.
I
t
The Ethiopian Code came into force just one decade after the middle of the
last century. Then Ethiopians gave, as perhaps they do now, greater value to
immovable property than movable prope,jy." A primarily agrarian economy,
Ethiopia wished to give greater legal protection to interests over plots of land.
Land ownership was an important status. In order to stand as a candidate for
12
election a person must have been a land owner. To be settled and be part of
a community meant to have a home and land. Ownership of a plot of land,
urban or rural, signified relationship with one's ancestors and their heritage.
13
Political, social and economic alliances were forged and broken around land.
The church had a symbiotic relationship with the state via the acquisition and
protection of land. The material foundation of the then existing feudal system
was obviously land. The nobilities and landlords who dominated the two
houses of parliament at the time of adoption of the Code had every reason to

See Geo P. Costigan, "A Plea for a Modem Definition and Classification of Real
Property", 12 Yale L.R. 426 (1902-1903) at 426. "The broad distinction between real
property and personal property was, and in general is, that between (I) immovable
things and rights in them, and (II)movable things and rights in them".
10
Articles 10-18 of the USSR Constitution (1977).
Dessalegn Rahmato, Land Tenure in Ethiopia: From the Imperial Period to the
Present: A Brief Discussion in Topics in Contemporary Political Development in
Ethiopia, (Workshop Proceedings published by the Department of Political Science
and International Relations, Addis Ababa University, 2000) at 84-5
12
Yacbb Arsano, People's Choice and Political Power in Ethiopia: Elections and
Representation During the Three Regimes in Electoral Politics, Decentralized
Governance and Constitutionalism in Ethiopia (Addis Ababa, Addis Ababa University
Press, 2007) at 156-7.
13
The central importance accorded to land ownership was expressed in local sayings
like the one from northern Ethiopia that a person cannot be allowed to interfere
with rist (one's rights in land) and wife.

55
ensure the inclusion of rules in the Code that were more protective of lana
rights. It is no wonder then that the Code, gave particular attention to
immovable property. In fact eighty percent of the Code deals with immovable
things, land in particular. In some ways it is fair to say that Book Ill of the Code
is the law of immovable.14

One might be tempted to argue that the centrality of the division of corporeal
goods to movables and immovable lost importance following the
collectivization of land in Ethiopia in the aftermath of the 1974 Revolution.15
After au, since 1974 land has been removed from private ownership in
Ethiopia. The PDRE Constitution rejected the distinction between movable and
immovable things and replaced it with socialist property and personal
16
property. Socialist property meant productive assets in the possession of
government units, state enterprises, mass associations, cooperative societies
and professional associations. Personal property was that held by private
persons for survival and comfort. In order to prevent the accumulation of
wealth by private persons under the guise of personal property, the PDRE
Constitution envisioned constant taking (recurrent nationalization) of property
17
via requisition. Later the FORE Constitution continued to relegate the
categorization of things into movables and immovables to secondary
importance. For example, Article 40/2 of the FORE Constitution divides private
property into tangible and intangible products having value and produced by
labor, creativity, enterprise or capital.

14
following articles in the Code apply exclusively to immovable property: Articles
1207-1256 (special rules applicable to immovable property and use and ownership
of water), Articles 1359-1385 (servitude), Articles 1460-1488 (expropriation) and
Articles 1553-1646 (registration of immovable property).
1.5
Harrison Dunning appears to question the importance of maintaining this division
even in pre-1974 context in Ethiopia. See Harrison C. Dunning, Property Law of
Ethiopia: Materials for the Study of Book Ill of the Civil Code (HSIU, Faculty of Law:
unpublished, 1967) at 7. Op. cit Paton, Textbook: "...though nothing may be eternal,
land is more enduring. The fact that land cannot be moved makes it especially
valuable as a security. Land can be subdivided wfthout losing is value. In agricultural
society, land is the main form of wealth. Land will still remain the essential
foundation for most human endeavors even in industrial societies."
16
See Articles 12-18 of the PDRE Constitution (1987).
17
The term "constant taking" refers to when a socialist state nationalizes private
property from time to time, the idea that nationalization of property in a state
which follows a socialist ideology might be a recurrent affair. Requisition means the
taking of movable' property by the government with compensation, while
expropriation applies to the taking of immovable property. Articles 1460-1488 of the
Code provide for expropriation. Little is said about requisition in the Code.

56
It Is submitted that the division of things into movable and immovable remains
alive in Ethiopia. In the aftermath of the Ethiopian revolution land has
continued to be the material foundation of Ethiopian society. At the time of
the revolution, politics may have dictated a change of vocabulary in the
classification of property in Ethiopia from movables and immovables to
personal and socialist property. However that change in vocabulary while a
change in form did not change what was actually occurring. It is possible to
argue that this change in terminology merely reflected the aspiration of the
revolutionary government to transform the society based upon their
ideological emphasis on the centrality of labor and their distrust towards the
past economic relationship around landed property. Although termed personal
property, the exclusive control of land and ownership of buildings by
individuals was permitted in the period between 1974 and 1991 in Ethiopia.
Even though the PDRE Constitution seemed to abolish it, the Law Revision
Committee, formed in late 1980's, maintained the division of things into
movable and immovable goods. It appears that the members of the
Committee were able to appreciate the practical benefits of recognizing the
fixed nature of immovables and the feeling that "certain things are more
valuable than others as parts of individual estates and that, therefore, their
18
conservation must be assured".
The collectivization of land did not end private ownership of buildings. And
with respect to land, people remain able to enjoy exclusive possession of land,
can hold it in usufruct, lease it, donate it to a family member, mortgage their
lease holdings, leave it to their heirs, tejWp or intestate, and enjoy other
innumerable rights in land short of individual ownership.19 Since 1974, in
Ethiopia, what has been taken away from people with regard to land is that
ultimate prize, i.e., sole ownership. People still have property rights in
immovables. If things are to be classified in accordance with their economic
and social importance, Ethiopia does not have assets more important than
immovable property. Ethiopia is an agrarian society and immovable property
still retains center stage in her economy. It is sensible to retain the division of
corporeal goods Into movables and immovables under Ethiopian property law.
This division both in terms of form (language) but also in terms of its content

18
Op. cit. Dunning, Property Law at 6. See Articles 1-8, Draft of Book III of the Civil
Code, Addis Ababa, Ministry of Justice, (Unpublished) (1987).
19
It Is not possible in Ethiopia currently to transfer ownership of land, be it by way of
donation or sale, because of the prohibition at law on ownership and because a
person cannot transfer a right more than she has.

57
(idea)7° reflects practical day to day realities and makes the law intelligible to
the ordinary man.

4.4 Consequences of the classification

The legal rules governing property found in the Code reflect the division of
things into movable and immovable. The transfer of title over an immovable
requires the completion of formalities like the authentication and registration
of transfer documents.21 Ownership of movable things can be acquired on the
.22
basis of possession in good faith. Immovables cannot be so acquired
Possession is prima facie proof of ownership of ordinary movable things and
ownership is transferred by a juridical act or agreement followed by delivery of
.23
possession The determination of who owns an accession24 to a piece of land
depends upon whether the accession was approved by or at least not objected
to by the landowner. For example, crops planted on the landowners land
without his permission become the landowners, whereas if he does not object
to their planting they become the property of the planter. Different rules

20
See the Preface of the Code, which states in part: "No law which is designed to
define the rights and duties of the people and to set out the principles governing
their mutual relations can ever be effective if it fails to reach the heart of those to
whom it is intended to apply and does not respond to their needs...".
21
See Article 1185 of the Code. Under Article 1195 of the Code for a person to claim to
be an owner of an immovable object, she must secure a title deed bearing her name
from the concerned public authorities. See also Article 2878 of the Code. Under
Articles 1723 and 2877 of the Code, any contract, even as between the contracting
parties, whose object is the creation or transfer of rights in an immovable asset /
must be in writing, while authentication is needed for the contract to have effect on
third parties. Recently, the Cassation Division of the Federal Supreme Court has
reaffirmed the legal effects of a written and authenticated contract on the parties
and third parties. See Federal Supreme Court Cassation Division Decisions Vol. 4,
Gorfe Workneh v. W/ro Aberash Dubarge et al (Fed. Sup. Ct., File No 21448, 1999
E.C.), at 40-48. Federal Supreme Court Cassation Division Decisions Vol. 4, Kebede
Argaw v. the Commercial Bank of Ethiopia et al (Fed. Sup. Ct. File No. 16109, 1999
E.C.) at 70-75. See also Op. Cit., Authentication and Registration of Documents
Proclamation No. 334/2003 especially Articles 2/1, 2/3 and 5.
22
Articles 1161-1167 do exclusively apply to movable things.
23
See Articles 1184, 1186/1 and 1193 of the Code. Here the term 'ordinary movable is
employed because there are some movables such as a motor vehicles, ships and
business which are given the status of immovable property for the purpose of
transfer of title.
24
Accessions are dealt with in Articles 1170 to 1183 of the Code. An accession to
property is the natural fruits of that property (e.g. calves from cattle, minerals in the
soil) or the products that arise from using the thing for its purpose.

58
 25 Mortgages and antichresis are
apply to accessions to movable property.
available for immovables while pledges relate to movable property only.26 In
the case of movable things, ownership can be acquired by prescription and in
the case of immovables usucaption.2"
The legal effect of the division of corporeal goods into movable and immovable
transcends property law. In succession --law, the power of a liquidator to sell
immovable property forming part of a succession is curtailed.ln contract law,
to be valid, a contract concerning immovables must be in writing, signed by the
parties and attested by witnesses.29 In agency law, a special appointment
made in writing is required for an agent to validly handle transactions relating
to immovable property on behalf of the principal.30 In civil procedure, there
are special rules applicable to the attachment of immovable property. Once
property is attached the method of organizing a public auction depends On the
category of the thing to be auctioned .31 The division has also an impact on the
jurisdiction of the court; a court in the vicinity where the immovable is situated
has jurisdiction over the immovable.32 In commercial law, a manager is
prohibited from selling and mortgaging immovable property without an
express authorization to that effect.33 In criminal law, there are special rules
that apply to protect interests in immovable property.34 The division of things
/rnto movabje_andjmmovable has a bearing on the capacity of foreigners to
acquire!!,~ n,,s ~ over immovable in Ethiopia. For example, non-investor

25
See Articles 1172-1181 versus Articles 1182 and 1183 of the Code.
26
See Articles, 2829, 3047 and 3117. Some special movables such as businesses may be
mortgaged.
Article 1168/1 provides, in part: The possessor who has paid for fifteen consecutive
years the taxes relating to the ownership of an immovable shall become the owner
of such immovable..." Article 1192 of the Code states: "The owner of a corporeal
chattel shall lose his rights as an owner where he failed to exercise them for a period
of ten years by reason of his not knowing where such chattel was or that he was the
owner thereof."
28 See Articles 1023 cum 1088 of the Code.
29 See Articles 1723 and 1727 of the Code.
30 See Article 2205 cum Article 1723 of the Code.
31 See Articles of 439-455 of the Civil Procedure Code of Ethiopia (1965). Article 36/4
of this Code requires any occupants of an immovable thing, irrespective of the
nature of his/her proprietary interest therein, to be made part of a suit where a
plaintiff sues for the recovery of such immovable property.
32
Ibid., Article 25.
33
See Article 35/2 of the Commercial Code of Ethiopia (1960).
34
See Articles 685 and 686/1(a) of the Criminal Code of Ethiopia (2005).

59
foreigners are not entitled to own immovables or exercise rights to or usage of
immovable property for a period exceeding fifty years or a life interest.35

4.5 A Movable thing

In general terms, a movable thing is an object that can move or be moved by
human agent without losing its essential features.36 Animate things, like cattle,
move by themselves. Inanimate things must be moved by human forces. In
the case of things that are movables because they can be moved by human
agent, such movement should not alter the nature of the thing moved. For
instance, one can move a house from place "X" to place "Y" by demolishing it.
But here one is not moving a house rather the ruins of a house are being
moved from place "X" to place "Y". One can move a mature tree around
normally only after cutting it off and thus depriving it of life. In these
examples, after they have moved the house is a ruin of building materials and
the tree is no longer a tree but wood. The house and the tree, in these
examples, will lose their essence after the movement. The critical issue in
order to appreciate the phrase "loss of their individual character" in Article
1127 of the Code is to ask the question: whether or not the quality of the thing
is fundamentally altered after it is moved from place "X" to place "Y".
Another pertinent test is whether the displacement changes the ordinary
purpose of the thing.
Movable things are sub-divided into things that are movable by nature,
become movable by virtue of their application/attachment to a movable
object, movables by anticipation, incorporeal movables, intrinsic elements and
accessories. Some of these sub-divisions of movable things are latent and the
others are patent in the Code.
4.5.1 Movable by nature
37
Article 1127 of the Code provides that "corporeal chattels are things which
have material existence and can move themselves or be moved by man
without losing their individual character". These things are by their nature
movable. Both animate and inanimate objects can be movable. There are
three requirements for a thing to be movable by nature, namely, the thing

35
See Articles 390-393, and Article 1089 of the' Code. Foreign investors, be it in the
form of sole proprietorship or business association, are entitled to acquire
entitlements in immovable property including land for their investment purposes.
See Article 40/6 of the Constitution of the Federal Democratic Republic of Ethiopia
(1995). See also Article 8 of the Investment Proclamation No. 280/2003, Fed. Neg.
th
Gaz. 8 Year, No 27.
36
See Article 1127 of the Code.
37
Or, as we discussed earlier, corporeal goods.

'4)
must have material existence or must be perceptible by the senses, such as a
table, a chair and a book; it must be able to move itself (like an animal can) or
be able to moved by man, such as a book, table or chair; and it must not lose
its individual character when it is moved.38
A thing may be movable by nature although during its entire existence it may
have a fixed place according to the wishes of its owner. For example, mobile
homes and trailers are movables. Materials used for the purpose of
constructing a building remain movables until actually incorporated into the
building. Materials taken from a demolished building are also movables.
Materials detached from an immovable building for repairs or additions and
with the intention of replacing them do not thereby become movables, they
39
preserve their immovable nature.

4.5.2 Things which the law deems movable

Natural resources such as electricity which have economic value and have been
mastered by human beings and used by them are deemed by law to be
corporeal chattels and thumövables.40 This removes any need to examine
their characteristics or establish in fact that they move on their own or can be
moved by man. In Ethiopia natural forces meeting the criteria set down in
Article 1129 are movables as a matter of law. Similarly article 1128 deems
"claimsand other incorporeal rights embodied in securities to bearer" to.be
corporeal chattels and thus movables.41 Thus these incorporeal rights are by
law made corporeal goods and movable .42

38
Movable things which become intrinsic elements of an immovable can lose their
character and become immovable. For example a door which when in the shop is a
movable becomes intrinsic to and one with the immovable building once installed in
it.
39
See Article 470 (2) of the Revised Louisiana Civil Code (1978). The same is true in the
case of French property law.
40
See Article 1129. Unless another law provides otherwise:
41
Under Article 721 of the Commercial Code, a security to bearer is one type of
negotiable instrument which may be transferred by delivery of the instrument
without any additional legal requirement. The. holder of the instrument to bearer
establishes her right to the entitlement as expressed in the instrument by the sole
fact of presentment of the said instrument. Non-bearer shares follow a different
mode of transfer
42
Unless another law provides otherwise.

61
4.5.3 Intrinsic elements of movables
An intrinsic element is an essential or an integral aspect of a thing. An intrinsic
element makes a thing complete. The engine, mirrors and the main tires of a
motor vehicle are intrinsic elements of it because without them the machine
would be incomplete. Intrinsic elements of a movable thing merge with it and
become movable as well.
There are three kinds of intrinsic elements under the Ethiopian property law:
one is elements customarily linked to the principal; a second, elements
materially united with the principal; and the third are elements deemed
intrinsic by operation of law.43 Our discussion here will focus on the first two
types. We will turn to the third when we discuss immovable property.

When determining whether a thing is intrinsic to an object by custom or

material unity we are asked to separately examine the principle thing and the
thing thought to be intrinsic. The determination is made using objective tests.
In cases where a customary link is contended, the fact to be proved is the
practice of the relevant community on the question of the relationship
between these objects. In the case of material link the primary issues are the
existence of a material union between the things and whether detachment of
one of the objects from the other would cause destruction or damage to the
principal.
Article 1132 (1) of the Code provides: "Anything which by custom is regarded
as forming part of a thing shall be deemed to be an intrinsic element thereof".
Custom means a practice habitually followed by majority members of a given
community for a long periqd of time with the intention to be bound by such
conduct. The practice is expected to be observed regularly, not on an on and
off basis. Theorn. is on the person who alleges the link to prove it exists. This
assertion as to burden of proof is based on the time honored principle of
evidence: she who alleges the existence of a given fact in her favor must
establish it. The existence of such customary regard may be proven by the
sworn testimony of witnesses and anthropological writings. The evidence
must establish that repeated practice suggests that the concerned community
regards a certain object as an essential part of a movable or an immovable
thing. For example, a certain farming community might treat oxen as an

43
Intrinsic element as a matter of law applies to trees and crops and will be treated
later in connection with intrinsic element of immovable things. Here, intrinsic
element by virtue of custom and material link as applied to movable things will be
described.
44
Burden of proof is a general and well-settled principle. See Black's Law Dictionary
(8th Ed.) (2004).

62
essential part of a plough. If this were the case, the oxen would be, even if
there is no material connection between the plough and the oxen, an intrinsic
element of the plough. A hayrack attached to a tractor may be regarded as
forming part of the tractor in a farming community. The hayrack is customarily
intrinsic to the tractor even though it can be detached from the tractor without
damage and operate while attached to another tractor or motor. Thus, custom
may regard things as intrinsic even where they can be detached from each
another without damage. ,,Th

Article 1132 (2) of the Code states that: "Anything which is materially united to
a thing and cannot be detached there from without destroying or damaging
such thing shall be deemed to be an intrinsic element thereof". In order for
this article to apply an object must be physically connected to another object,
called the principal thing. The cause of this union is not pertinent and the
identity or conduct of the person who makes the linkage is also irrelevant. The
attachment of the thing to the principal might be made accidentally or
negligently or deliberately and by the person who is the owner of one or both
of the things united or by a person having no proprietary interest in the two
things. Even a thief or a burglar could establish the union of the two things.
And secondly, separating the two objects must result in destruction or damage
to the principle thing. For example, applying these criteria, nuts and bolts, if
used, for the making of a table or wardrobe become intrinsic elements of such
table or wardrobe or the four wheels of a car are intrinsic elements of the car

It is important to know whether a thing is intrinsic to or distinct from other

things. As between the parties to a transaction involving goods article 1130 of
the Code states that: "Unless otherwise provided, rights on, or dealings
relating to goods shall apply to all intrinsic elements thereof". Thus, if a person
sells a thing she is assumed to sell it together with all, of its intrinsic elements
and if a person pledges a thing, the law assumes that she has pledged the
intrinsic elements thereof absent a contrary legal rule or agreement. In any
transaction, the intrinsic elements form part of and follow the principal. It
ceases to be a distinct thing.

Article 1134 of the Code extinguishes the interest of third parties in a thing
which has become part and parcel of another thing. In the eyes of the law any
property interests held by third parties to something which becomes an
intrinsic element of a movable thing melt away. As the thing ceases to have a
distinct existence, so do rights to it. This happens by operation of law and
obviates the need to inquire into what lead to the merger of the property into
another. While third parties in these cases no longer have a right to the
property itself they may have a claim in contract or tort for damages

63
occasioned by the loss of the thing or may bring a claim of unjust enrichment
4-5
against the holder of the principal thing.

4.5.4 Accessories to movable property

In determining what constitutes an accessory in law it is important to answer
the following questions: What may be an accessory? Who may establish
principal-accessory relationship? What is the nature of the link between an
accessory and the principal thing? Article 1136 provides: "Anything which the
possessor or owner of a thing has permanently destined for the use of such
thing shall be deemed to be an accessory thereto". There can be an accessory-
principal relationship between two movable things46 when a usufructuary or an
owner intentionally and permanently destines a movable for the economic
benefit of another movable it becomes an accessory. An accessory remains an
accessory when it is temporarily separated from the principal object, it does
not lose its own character as movable property and third parties maintain their
rights to the accessory.47 So for example, if I have an interest in a computer
printer, even when it is used by the owner as an accessory to her desktop
computer, I retain my interest in the printer. The printer is an accessory to the
computer. It does not merge with it and become an intrinsic part ofit.48 I may
assert my rights against it as an independent object. As is .the case with all
property an accessory may be a tangible or intangible.

4.5.5 Movable by anticipation

Pursuant to Article 1133 (1) of the Code, trees and crops are immovable
intrinsic elements of the land until they are separated from the land. Article
1133 (2) of the Code states that: "Trees and crops shall be deemed to be
distinct corporeal movables where they are subject to contracts made for their
separation from the land or implying such separation". Thus, when they are
planted with thff expectation and understanding that they will be harvested,
that is, remojed from the land, they are characterized as movable by
anticipation' Once removed these trees and crops become movables by
nature. The distinction is that the trees and crops that are still affixed to the
land become movable by anticipation when they are subject to an agreement
to separate them from the land in the future. Thus the trees and crops are
given, in the present time, the character that it is agreed they ultimately will

45
See Article 1134/3 of the Code.
46
These issues will be analyzed later in relation to immovable things.
47
See Article 1138 of the Code.
48
See Article 1183/2 of the Code.

64
have. In making this rule the law seeks to facilitate market transactions in
property interests.
By way of example, assume that W/ro Mulu owns some land upon which there
are trees. She sells the trees to Ato Aberra with the agreement that he may
harvest them at a future date. Ato Aberra, plans to cut the trees three years
after the conclusion of the sale contract. The law considers the trees as
movables (by anticipation) from the moment the sale is concluded .49 If W/ro
Mulu sells Ato Aberra a house located on her land on the understanding that it
will be demolished and the debris collected for reuse by Ato Aberra three
months following the sale. The law regards the house as movable by
anticipation from the moment of the conclusion of the sale contract. 50
Ethiopian law is silent on the issue of the interest o[ third parties in the
principal or the movable by anticipation. However the answer is implicit in the
proposition that under the Code for all intents and purposes movables by
anticipation are to be treated aordinary movables. Suppose Ato Dinsa sells
his standing crops to Ato Aberra. Ato Dinsa then transfers the land on which
the crops are grown (assuming that land is privately owned) to Ato Lipsj
before Ato Aberra harvests the crops. The contract of sale of the crops
precedes the contract of the sale of the plot. Assume as a third party, Ato
Upsa argues that he has purchased the plot together with the standing corps
on the basis that the crops are intrinsic to the land. An application of the
Ethiopian law would mean Ato Upsa's claim over the standing crops would be
dismissed as the crops became distinct from the land, the
moment they were subjected to an agreement that implied their separation
from the ground even though the removal of the crops might take place
several months later. French and Louisiana laws would require registration of
the contract pertaining to the transfer of movables by anticipation in order to
adversely affect the interests of third parties. 1 In those jurisdictions absent
registration of the instrument implying the separation of immovable things, it
can affect only the parties, not third parties.

491 prior to Ato Aberra cutting down the trees W/ro Mulu sells the land to Ato Darara,
Ato Darara will be bound by the terms of the sale contract and cannot take
control/ownership over the trees.
° See Article 2268/1 which provides that: "The sale of intrinsic element parts of an
immovable shall be deemed to be a sale of movables where such parts are, under
the contract, to be separated from the immovable and transferred as a corporeal
chattel to the buyer."
51
A.N. Ylannopoulos, "Movables and Immovables in Louisiana and Comparative La N",
22 La L. Rev. 517(1961-1962) at 562.

65
4.5.6 Incorporeal movables
Logically the distinction between movables and immovables should only apply
to corporeal things since rights are always devoid of corpus.52 But legal
classification defies lay notions about the division of things; the law assumes its
own logic. It is with this in mind that we discuss incorporeal movables.

The Code explicitly recognizes the existence of incorporeal goods. The

Constitution refers to them as intangible products. Incorporeal things cannot
be grasped by the senses. Incorporeal movables are certain types of rights
which have economic value.

A business is an intangible thing with economic value. A business is a product

of the organization of resources for the purpose of obtaining profit. The
tangible and intangible, resources assembled for purposes of making profit are
taken as a distinct patrimony which is termed in the vocabulary of commercial
law as a 'business'. For transaction purposes, the law assumes that a business
53
is a movable thing. Interests in any of the business associations, other thaiiq
joint venture, that are recognized by the Commercial Code incIudij
cooperative societies are incorporeal movables as long as such associations are
in existence. The interests in business associations are commonly called
shares. A share is not the certificate representing the rights and duties of a
member of a business organization; rather a share denotes a set of rights and
obligations attached to a member of a business organization.55 The certificate
is evidence of the existence of those rights. Like a property interest in tangible
assets, shares can be donated, sold, pledged, abandoned and given in usufruct.

52
Op. cit. Dunning, Property Law, at 4.
53
See Article 127 of the Commercial Code: "A Business is an incorporeal movable
consisting of all movable property brought together and organized for the purpose
of carrying out any of the commercial activities specified in Art. 5 of this Code".
5.4
In the French Civil Code and the Louisiana Civil Code, Articles 529 and 474,
respectively, the interests of members of associations are deemed movables by
operation of iaw while such associations are a going concern; but when the
associations are dissolved and liquidated, residual assets are either movable or
immovable depending on the type of residual property since after the legal
existence of an association is brought to an end the former members now become
joint owners of what property remains.
In the case of a joint venture, being devoid of legal personality, the partners
jointly or severally own the property they contribute in order to materialize the
objectives of the partnership. See Articles 210 and 273 of the Commercial Code.
55
See Article 345 of the Commercial Code of Ethiopia which lists the rights of a
shareholder.
The conditions under which shares may be transferred or otherwise dealt with
are outlined in the various provisions of the Commercial Code of Ethiopia.56
Intellectual property is also classified as an incorporeal movable. lntellectuaU
property is a generic term consisting of copyright, patent, industrial design,
industrial models, trademark and trade secrets. Copyright, patent and
industrial designs are temporary monopoly rights granted to authors or
inventors.57 Trademarks and trade secrets are pieces of information expressed
in certain ways as described in the law and generally they are not curtailed by
time limitation.

4.5.7 Real property rights which attach to movables

The Code does explicitly recognize of this class of things. Movable real rights
are rights connected to physical movable objects.-58 A pledge established in
relation to a corporeal movable thing is a moveable real right.59 A usufruct
11.6"
created over a corporeal movable is a movable real right as we A right of
recovery or preemption or promise of sale established in respect of a movable
.61
object is also a movable real right So too is the share of a person in a jointly
owned corporeal movable thing. Though the Ethiopian property law is unclear
on how to transfer these real rights a procedure analogous to that used to
transfer of movables should be followed where a real right to movable
property, other than sole ownership is transferred. That procedure will
depend upon whether the thing is an ordinary or special movables.62

4.6 Immovables -
Article 1130 of the Code lists the two most pr6 'nent immovable things: lands
and buildings. As a matter of law and fact: [ands and buildings are immovables.
Generally they cannot move or be moved and are things of relative fixity.
What is meant by land? Land may be defined as an individualized portion of

56
See Articles 250, 274, 282-3, 302, 333 and 522-3 of the Commercial Code. -'
' See articles 1647-1674 of the Code under Title Xl Literary and Artistic Ownership
Article 1663/1 states: "The incorporeal ownership of the author shall be
independent of the ownership of the material object which constitutes the
protected work."
58
They are also referred to as movables bythe object to which they apply or movables
by the operation of the law or movable real rights. 0
59
Se Articles 7875-2874
60
See Article 1309 for the definition of usufruct.
61
Article 1386 defines a right of recovery. See also Article 1410 of the Code.
62
/,
This conclusion can be reached if Article 1310 of the Code is read in a broad manner.

67
JV 44019-6ulirl L.
 .63
the earth It includes the airspace directly above and below the surface or
the land. Land does not extend upwards and downwards indefinitely. A
provision is made in the Code to the effect that the rights of a person in a plot
of land extend to the airspace and the subsurface only to the extent necessary
for the use of the land.M Ordinarily, the term 'land' in law also includes
vegetation and buildings affixed to the land.65 The Code states in Article
1133/1, that "trees and crops" are intrinsic to,-and therefore part of the land.
Trees and crops refer to any vegetation havkV its roots in soil. The words
"trees and crops" exclude a shrub in a pot.

A building is any man-made structure (with or without, a foundation, habitable

or otherwise) placed or affixed onto earth. The definition includes tower
houses, roads, tunnels, irrigation channels, dwelling houses, office buildings,
and the like. The term "building" extends to works of all kinds, such as
bridges, wells, ovens, dikes, dams, tunnels, and the like.66 Buildings are
immovables irrespective of the fact that they are not constructed to last
forever. A building set up for an exhibition may be treated as an immovable
even though it may be planned to be destroyed in several months or weeks.
But portable constructions set up on the surface of the soil for several days, re-
erected elsewhere and transported from place to place such as booths at fairs
are not immovable .67 This is because these light constructions do not have a
fixed place. Currently, owing to technology, even, many storey buildings may
be made movable. A prefabricated house is an immovable even if it does not

63
See op cit Yiannopoulos, Civil Law Property at 138. At page 114 of the same text he
states: "...tracts of land are not empty space: they contain organic as well as
inorganic substances, such as soil, minerals, vegetation, and buildings or other
constructions permanently attached to the ground. Minerals are part and parcel of a
plot as minerals means any naturally occurring mineral substance of economic value
forming part of or found on or within the earth's crust, including salt, mineral water,
and geothermal deposits". See also Article 2/14 of Mining Proclamation No. 52,
1993, Neg. Gaz. 52 Year No. 42.
64
See Articles 1209 and 1211.
65
In common law, "Land is any ground, soil or earth whatever, together with
everything on, in and over it that goes with it". Op.cit. Costigan, at 428. Ethiopian
law does not have such a broad definition of land.
66
Op. cit. Planiol, at 301-303.
67
Ibid.
68
In one case, a court held that "a three storey high permanent steel structure with a
helicopter landing pad constructed above it, built at the cost of over 400,000USD
and designed to house offshore workers was an immovable on the ground that
immobility is a legal concept and not an inherent quality of a thing even if such

68
have its foundation in the soil and thus, it can be moved around; prefabricated
houses are not light constructions such as tents and makeshift huts.
Accessories to or intrinsic elements of a building are integral parts thereof.
The Ethiopian property law categorizes immovable things into: immovables by
nature, real rights that have the status of immovables, intrinsic elements of
immovables and accessories to immovables.

4.6.1 Immovables by nature

Under Ethiopian property law, immovable by nature comprises buildings and
lands. As highlighted earlier on, buildings are any structures affixed onto earth.
While they need not be constructed to last forever they should be permanent
in nature. They should not be occasional structures. They should last for a
relatively longer period of time. The purpose for which and the material out of
which they are built are generally immaterial. They may or may not have a
:foundatioI and might be merely placed on the surface -6f the earth. A building
is an imtnovable regardless of whether its foundation is integrated with the
soil. Unlike accessories to immovables, immovables by nature cannot be
moved by the act or intention of its owner because its status is fixed by law.69
In both Louisiana and French laws, buildings are susceptible to horizontal
division, the building and the ground on which such building is erected may
have different owners.70 Yiannapoulos reasons that if buildings are immovable
by nature
they should be insusceptible of separate ownership and should, in all
cases, follow the ground. Obviously, this result would afford
excessive orotection to landowners to the detriment of persons
erecting edifices on the land of another, in good faith or with the
consent of the landowner.
In continental legal systems, inequitable results are avoided by code
articles indicating that buildings are component parts of the ground
and susceptible of separate real rights only when they belong to the
owner of the ground. Buildings erected by lessees and other persons
laying a contractual or real right to do not belong to the owner of
the ground; these buildings are regarded as movables.

structure could be transported by a powerful crane". In op. cit. Yiannopoulos, Civil

Law Property at 139.
69
Op. cit. Yiannopoulos, Civil Law Property, at 139.
70
Op.cit Ylannopoulos, "Movables and Immovables", at 523

69
A similar approach is adopted by the property law of Ethiopia, however like in
Louisiana, separately owned buildings retain their status as immovables by
nature. Article 1200/2, creates a rebuttable presumption that "all
buildings ... and works on land shall be deemed to have been made by the
owner at his own expense and to be his property". Buildings constructed on
land with the consent or without the objection of the owner are the property
of the builder. Should the owner of the land wish to evict the building owner
.
he will be obliged to pay compensation 71 Article 1214 lays down the following
principle:

(1)Buildings and other works constructed above or below a

parcel of land or permanently united therewith may have a
distinct owner.

(2)The rights of such owner shall be subject to the provisions

relating to servitudes (Art. 1359-1385)

Thus separate ownership of buildings runs with the land 72 and may be
registered in the register of immovables73 and where this is done it will affect
third parties.74 Articles 1281 and 1282 expressly enable joint ownership of
buildings and describe them as immovables. As immovables these buildings
may be mortgaged or given in usufruct or leased or otherwise dealt with by the
builder.75 The importance of registering these interests is well stated by
Yiannapoulos:

Persons erecting edifices on another's land with the consent of the

landowner apparently always enjoy the protection of real right vis-à-
vis the owner of the ground, and, if their interests are recorded, with
respect to third parties. The recognition of separate ownership in
lands and buildings as distinct immovables has also affected the
scope of the rule that buildings are included in the case of transfer or
encumbrance of the land. Application of this rule is necessarily
limited to buildings which belong to the owner of the ground and
buildings which may be presumed to belong to him in the absence of
recordation. Thus, unless recorded, a lease does not entitle a lessee
to claim ownership of a building erected on the lessor's land against

71
See Article 1214 of the Code.
72
See Article 1361/1
73
See Article 1361/2.
74
See Article 1364.
75
Op. cit. Yiannopoulos, "Movables and Immovables", at 524

70
 third parties in case of sale or mortgage executed by the landowner,
in these circumstances the title of the lessee is lost.76

46.2 Real rights that have the status of immovables

Some legal rights form part and parcel of the immovable thing themselves and
are categorized as immovables in consequence. Because rights are not
themselves capable of categorization as moveable or immovable the law
determines the categorization and thus sometimes they are referred to as
immovables by the operation of the law. They are rights that attach to the
object itself and are real rights which can be asserted against the world at large
as opposed to prsonalor contractual rights.
Both Louisiana and French laws have adopted this classification. In Louisiana,
they are described as incorporeal immovables. Article 470 of the Louisiana
Civil Coder states:
Rights and actions that apply to immovable things are incorporeal
immovables. Immovables of this kind are such as personal
servitudes established on immovables, predial servitudes, mineral
rights and petitory or possessory actions.
Some commentators are of the view that all fragments of ownership over
physical immovable objects including ownership should be considered to be
immovable.78
In Ethiopia the Code does not explicitly recognize this class of things. However
the effect of its provisions is such that we can infer their existence. A
mortgage established in relation to a corporeal immovable is an immoveable
right. A usufruct created over a corporeal immovable is an immovable right as
well. The right to habitation, that is, the right to possess and live in a dwelling
house, should be seen as an immovable by the operation of the law. 9 A right
of recovery, promise of sale or right of preemption established in respect of an
immovable object is an immovable. Servitude is by definition an immovable

76
Ibid, at 525.
77
Acts, 1978, No. 728
78
Op. cit. Yiannapoulos, "Movables and Immovables", at 549-550.
79
See Article 1353 of the Code. In Ethiopia, it appears that the exclusive right of a
licensee to control a given piece of land for exploration and mining of minerals is an
immovable because it attaches to minerals which are intrinsic to the land and
therefore immovables by nature. See Articles 2/14, 8, 18, 22 and 32 Mining
Proclamation No. 52/1993.

71
real right.80 Similarly a joint owner's share of an immovable ought to be taken
as an immovable real right, as should the interest of a member of a business
association in a residual immovable asset upon the dissolution and liquidation
of a business association.

The legal effects of the classification in question are not outlined by Louisiana
and French codes. Failing clear legislative prescription it is opined by jurists in
those jurisdictions that most provisions governing immovable property should
apply by analogy to immovable real rights. Thus for example the procedural
rule that the location of an immovable determines the place of litigation
should apply to the exercise of these immovable rights. So too should the rules
restricting transfer of an immovable by oral agreement, and those requiring
that a transfer be registered before it can affect third parties.81
As mentioned earlier, in Ethiopia, the Code does not openly adopt this
classification and thus one does not naturally expect it to deal with the
consequences of this classification. Contrary to this expectation, in fact, there
are a number of provisions in the Code which have ,assimilated immovable real
rights, at least some of them, to the transfer of corporeal immovable. In this
regard, some provisions in the Code concerning transfer of usufruct,
constitution of servitude and registration of immovable property can be
cited.82

4.6.3 Intrinsic elements of immovables

Those things that are permanently attached to land and buildings are
considered to be immovable things. Intrinsic elements are things that are
integraI'eIements of land and buildings. There are three types of intrinsic
elements of an immovable: intrinsic elements as a matter of law, custom and
material attachment.
The first sub-type of intrinsic element of an immovable thing is an intrinsic
element of land as determined by the law. The law provides that trees and
crops are intrinsic elements of land. Article 1133 (1) of the Code reads: "Trees
and crops shall be an intrinsic element of the land until they are separated
therefrom". The legal effect of such relationship is that absent a contrary

80
Article 1359 of the Code which provides in part "A servitude is a charge
encumbering a land...".
81
Op. cit. Yiannapoulos, "Movables and Immovables", at 556-557.
82
See Articles 1310, 1362-1368 and 1567-1574 of the Code. The latter group of articles
requires the registration of virtually all interests one has over an immovable
property.

72
provision any transaction relating to land will include the trees or crops on that.
land.
When we discussed the intrinsic elements of movable things we noted that
Custom 83 sometimes considers certain things to be intrinsic to another
movable. Likewise, custom may take certain parts of a liuilding to be intrinsic
to it. Custom may apply to join, two objects despi1e the, fact there is no
material union or there is a material union between the two,things but it is
possible to separate them without destroying or causing major damage to the
main thing in particular. In some cases the prevailing attitude of the
community is such that the two things do unify.TM Article 1132 (1) applies to
115
movable and immovable things. Like the case of intrinsic elements of
movable things, any transaction relating to an immovable will apply to its
intrinsic elements, absent a contrary provision.
Certain parts of a building are integral to it. The lighting and heating systems
of a house are intrinsic elements of it. A building is incomplete without the
doors, windows, roofing, heating and cooling systems and other appliances
attached to it. The building materials once used in construction are no longer
bricks, pipes, building stones or lumber. Their integration into the building is

83
It is not the expectation of every citizen but that of a pertinent community which
matters. For example, in metropolitan areas, the average buyer of a dwelling house
would not expect to find electric bulbs and electrical lines were removed. This is an
objective test to be established on case by case basis. See A.N. Yiannopoulos, "Of
Immovables, Component Parts, Societal Expectations, and the Forehead of Zeus", 60
La. L. Rev. 1379 (1999-2000).
84
In one case, it was held that chandeliers, although removed with the assistance of
persons with sufficient knowledge of electricity and electrical wiring to separate the
internal wires from the unit wires without risking harm to the worker, or damage to
the house and fixtures by the touching of exposed wires or the shorting-out of
circuitry, were intrinsic elements of the house on the ground of societal expectation.
See Op. Cit. Ylannopoulos, Civil Law Property, at 106.
85
Article 1132 states: "(1) Anything which by custom is regarded as forming part of a
thing shall be deemed to be an intrinsic element thereof. (2) Anything which is
materially united to a thing and cannot be detached therefrom without destroying
or damaging such thing shall be deemed to be an intrinsic element thereof".
On the issue of whether a house can be an intrinsic element of the plot on which
it is erected, see a recent Federal Supreme Court decision; Yesewzer Yebeltal v.
Negussie G/Sellasie, Fed. Sup. Ct., Civil Appeal No 26731, 1999 E.C. (Unpublished). In
this decision, the Court stated that a house cannot stand by itself; it is unthinkable
to have a house without a plot of land on which it is built.
86
See Article 1134(1) A thing which becomes an intrinsic element of a movable or
immovable shall cease to constitute a distinct thing.

73
such that they cannot be detached without damage to any of them. A contract
of sale relating to a building will, unless they are explicitly excluded, include the
building and all of its intrinsic elements.

When determining whether a thing is intrinsic or not, who caused the material
union between the two things and their state of mind at the time is irrelevant.
What matters is the extent of physical attachment of the intrinsic element to
the main thing. It is a fact to be proved on case-by case-basis. In this
determination the cost and artistic value of the intrinsic elements and the
87
complexity of the material union are also irrelevant factors. The only decisive
factors are whether or not there is a material union between them and
whether or not it is possible to detach one from the other without causing
damage or destruction to the main object.88 It appears that the extent of
damage or destruction to either object may not be relevant under Ethiopian
law, otherwise the legislature would have given a hint to that effect. It is not
clear whether or not the Code permits the owner of a principal thing to declare
via recordation certain things as intrinsic elements of a building or other
constructions.89

What happens to someone who has rights in a thing wher it becomes intrinsic
to another? Article 1134 Code provides:
(1)A thing which becomes an intrinsic element of a movable or
immovable shall cease to constitute a distinct thing.
(2)All the rights which third parties previously had on such thing
shall be extinguished.
(3)Nothing shall affect the right of such third parties to make
claims based on liability for damages or unlawful enrichment.

The property merges with and follows the principal. It loses its independent
character as a thing and all rights on it end. Consequently, the property law
remedy of restoration of the thing is lost. The remedies available consist of

87 A Louisiana Supreme Court decided on one occasion that such considerations are
pertinent. Case as referred to in Yiannopoulos, Civil Law Property, at 109.
88 The French version of Article 1132/2 as translated by Billilegn Mandefro is only
concerned with the damage or destruction sustained by the main thing, while the
official English text refers to damage sustained by either. (See op.cit Billilegn)
89
See Article 467 of the Revised Louisiana Civil Code (1978) which provides "The owner
of an immovable may declare that machinery, appliances, and equipment owned by
him and placed on the immovable, other than his private residence, for its service
and improvement are deemed to be its component parts. The declaration shall be
filed for registry in the conveyance records of the parish in which the immovable is
located".

74
claims for damages or unjust enrichment against the persons who receive the
benefit. The intention of the one who caused the integration is irrelevant to a
determination of where the property rights reside. Thus even if a person were
to steal electric cable and incorporate it into his building once it has been put
in the building it is part of the building and cannot be returned to the owner.
The thief could still be held liable in criminal law for theft and the victim could
sue the thief for damages causetby the misappropriation of his goods.
Sometimes, considerations other than the promotion of the social policy of
honesty such as convenience and certainty of property rights are preferred.

4.6.4 Accessories to immovables

Sometimes, for a given immovable thing to be used efficiently, it requires
attachments or accessories. Articles 1135-1139 of the Code regulate cases
where an accessory principal relationship is created.90

Accessories are those things the owner, usufructuary or possessor of the

principal thing permanently destines for the use of the principal thing. Once a
thing becomes an accessory it assumes the character of the thing it is an
accessory to. Thus a movable upon becoming an accessory to an immovable
becomes an immovable too. The accessory promotes the efficient and
convenient use of the principal thing, which is an immovable by nature. The
two things form economic unity. There is no material attachment within the
meaning of Article 1132/2 of the Code. In fact Article 1137 provides that "No
accessory shall lose its character of accessory where it is temporaly detached
from the thing to which it is destined". There may be no customary link
between the two objects.91

~00
90
It is difficult to imagine the case where an immovable could become an accessory to
a movable thing, although the Code does not rule the possibility out. In France, the
situation is unknown. In Louisiana these things are called immovables by
destination. That is, the thing loses its own character as a movable and assumes the
character of the immovable thing it is destined to be used with. In Ethiopian law
these things are called accessories. See Op.cit. Yiannopoulos, "Movables and
Immovables", at 532.
91
In some cases both the principal and the accessory can be immovables. For example,
under the urban land lease holding law of Ethiopia a surety (mortgage) of a lease
over a plot of land (itself an immovable real right) covers the building (including
accessories to such building) thereon in the absence of a contrary stipulation. See
Article 13 of the Re-enactment of Urban Lands Lease Holding Proclamation No
8
272/2002, Fed.Neg.Gaz. No th Year 19.

75
For a thing to be an accessory the thing must be intended to be permanently
93
destined for the principal thing.92 Where the usufructuary, possessor or the
owner of the principal object destines the accessory for the use, improvement
and exploitation of the principal object, be it land, industrial, commercial or
manufacturing establishment, it can be said there is permanent destination
and it in no way is to be measured by the service life of the thing alone. 94

Pursuant to Article 1136 only a usufructuary, possessor or owner (or someone

acting on their behalf) of a thing can destine it as an accessory. Thus a person
who owns both the principal thing and the accessory can do so for she has a
sovereign right over both. A person who is the owner of the principal thing but
possesses no legitimate property interests in the proposed accessory cannot
make it an accessory in law because she does not have legally recognized
power over the latter. In Louisiana:

[t]he courts have held consistently that immobilization by

destination may occur only where the owner of a tract of land or
building places on the premises things also owned by him. Personal
action is not necessary; action on behalf of the owner will suffice.
Thus, "improvements" made by a tenant, a hot water heater placed
on the premises by a Iesse, and an automatic sprinkler system or
railroad tracks installed by persons other than the owner of the land,
remain movable.95
96
Under French property law, the owner of the accessory and the principal
thing has to be the same. It is a requirement that the person making the
dedication must be the owner of the movable and the immovable thing.
Ownership of the movable and the immovable by a single person is called unity
of ownership. The French system requires unity of ownership because it is

92
There are disparities between the English and Amharic versions of Article 1136. The
Amharic version uses two critical terms, which do not appear in the former. These
are usufructuary and intention.
93
In the English version of Article 1136 of the Code, a possessor or an owner of the
principal thing is given an entitlement to destine a movable thing to the former. Yet,
the Amharic version as well as the master French version identifies a usufructuary
instead of a possessor of the principal thing as having the power to make a
destination, of course, in addition to an owner of the principal.
94
See Yiannopoulos, "Of Immovables", at 1385.
95
Op cit. Yiannopoulos, "Movables and Immovables", at 533.
96
Louisiana abrogated the unity of ownership test in 1978. Now, even a person who
does not own a potential accessory may make it an accessory of another thing. In
the same system, as of 1978, the test of "the use or convenience of an immovable
property" was abandoned.

76
only an owner who has a permanent interest in the immovable to which a
movable is destined. As only an owner of an immovable property or another
person on her behalf creates the destinaton of a thing as an accessory, only
she can terminate the relationship between an accessory and a principal.97
Thus movable things attached by lessees or borrowers or other persops Man
immovable on their own account do not become immovables by destination;
such things remain distinct movables.
To be an accessory the thing must be destined for use of the principal object
and not for the mere convenience of the owner or the usufructuary of the
principal object. The thing musts,rve the economic purpose of the principal
thing to which it is destined. It miItenhance the benefit obtained from the
immovable thing. The act of creating accessory-principal connection between
things must be deliberate; with the purpose of achieving the efficient
utilization of the principal object.
The accessory must intentionally and permanently be destined for use with the
principal. Factors to be considered in determining permanence include: the
length of time the movable is used in the service of the immovable, overt acts ,7\
by the owner or usufructuary or someone acting on their behalf evincing an
intention of permanence, the importance of the movable thing to the
immovable (economic considerations) and he practice in the community. For
policy reasons the Code deems certain things to be accessories: namely, water
and gas pipes, electrical and other lines are considered as accessories of the
undertaking (enterprise) from which they originate; but contrary evidence can
be produced.98 Generally the party who asserts that a thing is an accessory
must prove it. The element of permanent attachment under Article 1136 is not
presumed. There are situations where an accessory-principal relationship may
be established between two immovables or between a movable principal and
an immovable accessory10° or-even between a tangible thing and an intangible
102
thing101 or as stated elsewhere between two movable things.

' See Article 1139/1: "The owner of a thing may put an end to the character of
accessory of such thing".
98
See Article 1203 of the Code.
99
See Article 1372 of the Code which envisages a right of way (which is an immovable
right) as an accessory to a right to take water from a well, which, too, is an
immovable right.
100
See Article 1203 of the Code, which regards certain lines (gas, water, telephone and
electrical lines) as accessories to an enterprise. Thus they are the property of the
gas, water, electrical company that put them in place. Despite being immovable by
nature, they do not attach to the building or land where they are located. Rather by
virtue of Ethiopian commercial law these are businesses and thus both they are and

VAN
Unlike French law, German property law does not use the term 'immovable by
destination'. The preferred terminology is accessory. Under German law,
accessories are movables that, without being parts of the main thing, are
intended to serve the economic purpose of the main thing and are in a spatial
relationship to it that corresponds to this intention. Section 98 of the German
Civil Code provides:
The following are intended to serve the economic purpose of the main
thing:

1. in the case of a building that is permanently equipped for

commercial operations, in particular a mill, a smithy, a brewery
or a factory, the machinery and other equipment intended for
the business,

2. in the case of a farm, the equipment and livestock intended for

the commercial operations, the agricultural produce, to the
extent that it is necessary to continue the farming until the time
when it is expected that the same or similar produce will be
obtained, and manure produced on the farm.

In relation to this list, proof of economic purpose is dispensed with; in other

cases, the party who seeks to benefit by the finding of an accessory-principal
association between things must prove it. A thing is not an accessory if it is not
103
regarded as an accessory in business dealings. In Germai1, law there must be
two things, one is called the main thing and the other is called an accessory.
The accessory must be a movable thing. The principal thing may be a movable
or an immovable. Both the principal and the accessory must be physical

the lines are movable things. See Article 1203 of the Code, which regard certain
lines (gas, water, telephone and electrical lines) as accessories to an enterprise.
101
See Article 127 of the Commercial Code of Ethiopia.
102
Unlike French and German laws, it appears that in the Ethiopian Code, there can be
an accessory to a movable thing.
103
See the German Civil Code (last amended in April 19, 2006). Section 97 of which
states: (1) Accessories are movable things that, without being parts of the main
thing, are intended to serve the economic purpose of the main thing and are in a
spatial relationship to it that corresponds to this intention. A thing is not an
accessory if it is not regarded as an accessory in business dealings. (2) The
temporary use of a thing for the economic purpose of another thing does not give
it the quality of an accessory. The temporary separation of an accessory from the
main thing does not deprive it of the quality of an accessory.

78
things.104 The accessory should not be a component part of the main thing.
The accessory must be intended, either by the owner or another person on her
behalf, to serve the economic purpose of the principal permanently. Or it may
be sufficient if the pertinent business community views a certain movable
thing as an accessory of another thing. And finally there must be some spatial
relationship105 between the accessory and the principal thing. The temporary
use of a thing for the economic purpose of another does not make it an
accessory. The temporary separation of an accessory from the main thing does
not stop it being an accessory.106 In many ways Ethiopian property law has a
striking similarity with the German law in respect of the law of accessory.
107
Article 1135 of the Code stipulates that: "In doubtful cases, rights on, or
dealings relating to, things shall apply to the accessories thereof". The effect
of being an accessory is that rights and dealings relating to the principal thing
are applicable also to accessories. For all legal purposes accessories to
immovables become immovables. For instance, if a building is mortgaged, all
its accessories are also subject to the mortgage. For example in a case where
there is an accessory principal relationship between a farm plot and oxen,
absent contrary contractual provision, any dealing relating to the farm will
cover the oxen. However, it is possible to exclude accessories by agreement.
In the presence of a contrary covenant the transaction covers only the
principal, not the accessory. The principle that, absent acontrary agreement
excluding an accessory, dealing with the principal means dealing with the
accessory too is based on the expectation theory of contract law. The
expectation theory (also called the reliance theory) states that legitimate

104
See Article 90 of the German Civil Code as revised in April 19, 2006. This provision
states that "Only corporeal objects are things as defined by law." Thus in Germany,
intangible things may not have accessories nor can they be regarded as principals.
105
Physical contact between the two is not required. Proximity is decided in each case
as a matter of fact. The accessory need not be in its proper place so for example
machinery brought in and left in the courtyard of a factory was an accessory since it
was destined to replace worn-out parts. See op. cit. Yiannopoulos, "Movables and
Immovables", 573.
106
See Article 97 of the German Civil Code. /1
107
The phrase '...in doubtful cases...' appears to iggst that Article 1135 is a fallback
provision. In cases where there is a relationship between two things but it cannot
be firmly established any doubt will be resolved by treating the thing as an
accessory. Or the phrase means when the contract pertaining to the principal is
ambiguous as to the exclusion or inclusion of the accessories, then Article 1135 will
be used to settle the dispute. The phrase could mean either or both.

79
expectations of parties to a contract should be honored.108 People transacting
with a principal object believe, in the absence of a contrary term of contract,
that they are dealing with the whole object including all of its parts. The same
theory lurks behind the case of a contract covering a principal and its intrinsic
elements.

The phrase "rights on or dealing with" in Article 1135 is broad enough to

include a wide array of contractual and proprietary relationships with the
principal thing (e.g., usufruct, mortgage, sale, testament, donation, servitude,
preemption, right of recovery). It Would also include expropriation and court
order. Thus Article 1135 contemplates bilateral and unilateral acts, and
decisions of competent public authorities affecting the principal object.109

Article 1138 of the Code states:

(1)The rights which third parties may have on a thing shall not be
affected by such thing being destined to the use of a movable or
immovable.
(2)Such rights may not be set up against a third party in good
faith unless they are embodied in a written document dated
prior to the thing having been so destined

Unlike, the case of an intrinsic principal relationship, where the rights of third
parties on an intrinsic element are terminated, third party rights in accessories
which have been reduced to writing survive. In the language of this sub-article,
the rights third parties have on a thing that has become an accessory to
another will be affected only when transactions evidencing such rights are
made in writing, and authenticated ° before the thing assumes the character
of an accessory. Authentication is required to prevent predating or antedating
of the agreement.
It is submitted that good faith, within the meaning of Article 1138/2 of the
Code, means actual or constructive knowledge on the part of a person dealing

108
Peter Jaffey, A New Version of the Reliance Thoery,
http://bura.brunel.ac.uk/bitstream/2438/4166/1/ReliaflCe%2OtheOrV%200f%2OCOfl
tract.pdf (Accessed on August 11, 2011) at 2-3.
109
The same conclusion is possible to reach in respect of Article 1131.
110
See the Amharic version of Article 1138/2 of the Code. To authenticate an
agreement means: witnessing by a public officer of the signing of the agreement by
the parties or verify their signatures as affixed onto the agreement with a sample
signature deposited in her office, sealing and registering and depositing a copy of
the agreement.

80
with the accessory that another person has a right or claim to the accessory.
The extinguishment of pre-existing third party rights can only occur as a result
of a subsequent transaction when those rights have not been properly
112
recorded. The formality required by Article 1132/2 means the existence of
the right is made part of the public record. Generally, it is presumed that
people know acts made part of public record. They cannot argue that they
have not consulted those records. The existence of public records makes it
legally impossible for persons dealing with such accessories to invoke good
faith.

Article 1139 of the Code states:

(1)The owner of a thing may put an end to the character of
accessory of such thing.

(2)Nothing shall affect the rights of third parties having had

dealings with the owner on the faith of such character.

The Article assumes that the person who establishes an accessory principal
relationship between two objects is the owner of the accessory. As an owner,
she has several prerogatives including the right to terminate the accessory-
principal nexus. The termination might be effected via sale or donation or
mortgage or pledge or usufruct or destruction or transformation or some other
act indicating the end of the close association of an accessory with the
immovable.113
On the other hand, the law is also concerned with safeguarding the interests of
innocent third parties and those of any mortgagee. The termination of the
character of an accessory thus involves two interests: the right of an owner to
dispose her property as she pleases and the interests of innocent third
parties.114 Here the law states that an owner of an accessory thing may end
such relationship anytime and through any legitimate means provided the
interest of innocent third parties is not adversely affected thereby.

The definition of good faith provided for under Article 1162 of the Code should be
extended to the situations envisaged by Articles 1138/2 and 1139. Article 1162
states: U(l) Whosoever acquires a corporeal chattel shall be deemed to be in good
faith where he believes that he is contracting with a person entitled to transfer the
thing to him. (2) The good faith of the acquirer shz II be presumed saving evidence
to the contrary."
112
is an extended application of what is provided for under Article 1163/1 of the
Code.
113
Op. cit. Yiannopoulos, "Movables and Immovables", at 556.
214
Ibid.

81
As an illustration, X owns a freestanding pump which he installs on the well on
his farmland to improve his capacity to water his livestock. X sells the land to V
reserving usufruct for three years. V buys the farmland believing that X will
deliver together with the pump. Upon the expiry of the usufruct, X sells the
pump to Z. In relation to the contract of sale of the pump all persons in the
world including V are third parities whose rights over accessories are protected
by Article 1139. Does this effort by X to terminate the accessory nature of the
pump affect the right of V to require the delivery of the pump to him upon the
expiry of the usufruct? Here, unlike the rights of third parties protected under
Article 1138/2, the formality precondition is not necessary to the application of
Article 1139. What matters is that V obtained in good faith an ownership
interest in the pump as an accessory to the land at the time the land was sold
to him. X is no longer the owner of the accessory and therefore cannot change
115
its character.

An owner can assign or otherwise deal with accessories independently of the

principal even if the principal immovable is encumbered with mortgage.116 The
law provides that a mortgage does not extend to accessories of the main thing
mortgaged once those things are separated from the property and transferred
to a third party even when that occurs after the mortgage is executed and even
117
if the transfer reduces or endangers the value of the thing mortgaged. The
same rule applies to any object expressly specified as an accessory in the act
creating the mortgage.

One may inquire whether or not the government should be obliged to pay
separate compensation for accessories in the case of expropriation. The Code
does not offer a solution to this issue.118 Assuming that the target of the
expropriation proceedings is the thing as a whole, not just the principal nor is
the accessory in isolation, one approach to this question is that the property be

115 A requirement of good faith should be read into Article 1139 by application of
Article 1163 of the Code.
116
See Articles 3064/ which states "The mortgage shall charge the mortgaged
immovable together with its intrinsic elements and accessories".
117
Articles 3065, 3073 and 3074 of the Code, which together provide that a
mortgagee may not enforce rights on against separated and transferred intrinsic
elements or accessories. Instead the mortgagee may; where such action reduces or
endangers the value of the immovable and the action was done intentionally or
negligently, demand new securities.
118
See Articles 1460-1488 of the Code. Articles 1471-2 state that any interested person
may express an objection to the amount of compensation offered by the
competent authority. Interested persons include all those who have property
interests in accessories or intrinsic elements of expropriated immovable property.

82
valued as a whole and no separate compensation provided for any part thereof
because the distinct existence of the accessory ended the moment it became
an accessory to the principal. The other approach would be (since accessories
retain their individuality, and thus can be separated from the main thing
without destruction or damage) that the authority should assess the
accessories independently from the principal and effect compensation to the
owner of the accessories. In the latter approach, if the owner elects to take
the accessories away and if the competent authority undertaking the
expropriation is not interested in having such accessories, then the owner
should retain them and thus no compensation is due in relation to those
accessories. On the grounds of practicality and the spirit of the law of
accessories, it appears that the first approach should be followed if similar
issues arise in the case of expropriation of things with accessory-principal
relationship as well as the expropriation of things with intrinsic-principal
relationship.

4.1 Accessories versus intrinsic elements

What is the difference,X51' between an accessory and an intrinsic element?
(1)Intrinsic elements cannot be separated from the principal object
without damaging or destruction, whereas accessories do not
necessarily have physical connection with the thing destined to.
(2)Intrinsic elements lose their original character and assume that
of the thing they are joined with. Once, intrinsic-principal
relationship is established whether by custom, material link or law,
the intrinsic element ceases to be a distinct thing at law.
(3)Accessories assume the character of the thing they are used
with. However they can be separated from it and revert to their
original state as separate things should the owner wish.
(4)Pre-existing third party rights in intrinsic elements are
extinguished without exception. Third parties may however claim
for damages or unjust enrichment.
(5)Third parties may protect and preserve pre-existing rights in
accessories.
(6)Only an owner, possessor or usufruct may destine a thing as an
accessory. Anyone may make a thing intrinsic to another.
(7)The state of mind of those dealing with things which become
intrinsic to others is an irrelevant consideration, whereas only
actions taken in good faith will extinguish third party rights to
accessories.

83
4.8 Conclusion
The utility of a clear, coherent, comprehensive and contextualized division of
things over which property rights are exercised cannot be overemphasized. A
sound classification of things in property law enhances the determination of
the rights of parties to a dispute by informing us about which things shall go
with which other things and which procedure shall lead to a valid and effective
flow of property rights in things from one party to another.
Classification of goods in law may or may not rely on the physical condition of
things. A thing which is movable by nature may be immobilized by law; an
immovable by nature may be mobilized by law; a thing that is devoid of any
material existence might be clothed with corpus by the legislature. The
student of property law should appreciate the import of such fiction as the
lawmaker does not engage in the creation of fiction in vain.
A classification of things, however carefully crafted, cannot avoid open
textures. When indeterminacy arises resort to case-by-case factual
determination of the association of things is inevitable. There are numerous
indeterminate aspects of some of the fourteen provisions treated in this
chapter. The determination of the degree of material attachment, the content
of customary practice envisaged under Article 1132 of the Code as well as the
question of ascertaining the existence of economic unity between things under
the law of accessory rests on subjective factors. The legal rules under
consideration leave many unaddressed issues, for instances, in relation to the
place and effect of moveable real rights and immovable real rights in the
scheme of the Code. The English and Amharic versions of Articles 1126-1139
suffer from numerous material disparities and a reliance on the English version
of these provisions alone might be quite misleading.
There is a need to reiterate what was said in the preceding chapter. There are
different words used to describe movable and immovable objects of property
rights in Articles 1126-1139 include a thing, a corporeal thing, a corporeal
movable, a movable, a corporeal chattel. They may well be synonymous. It is
a convention in legal drafting to employ a given term uniformly throughout
that text so long as the drafter does not have a different meaning in mind,
which must be made clear in the text. Usage of inconsistent terms in one legal
text compounds the already muddy ground of legislative interpretation. In
order to avoid surprises and enhance appreciation of this portion of the Code,
it appears plain, those who study and teach proprty law should not just rely
on the English version of the provisions under discussion; there is a need to
look at the Amharic version of these rules.

84
 -

4.9 Review questions

1. What are the differences between movables and immovables?
2. From time to time a conflict may arise between the provisions of dealing
with intrinsic elements (Articles 113171134), those dealing with accessories
(Articles 1135-1139) on the one hand, and the provisions dealing with
possession in good faith (Articles 1161-1164). Consider the following
scenario: X owns a saddle which he allows Y to use on her horse,. V sells
the horse to Z. The contract of sale concerning the horse is silent about
whether the saddle is included. V delivers the horse together with the
saddle to Z. At the time of receiving delivery of the two items, suppose Z
believes that V has the authority to sell bothLthe horse and saddle. X seeks
to recover the saddle. What arguments could X make to support his
application? What arguments could Z make, If X does not recover the
saddle, does he have any other legal remedies? If so against who?
3. Since land under the Ethiopian law is not subject to private ownership, is it
possible to have accessories to it? Or is it sound to argue that currently in
the country an accessory goes only with buildings, not with land?
4. Ato Birrratu sells his house to W/ro Meseret fulfilling the requirements of
transfer of immovable property under the property law of Ethiopia. Before
transferring the property to W/ro Meseret, Ato Birratu takes steps to
remove the doors and windows from the house. Ato Birratu has entered
into a contract to sell the doors and windows to W/ro Chaltu. W/ro
Meseret brings a suit prohibiting the removal of the doors and windows.
What arguments will she make in support of her suit? What remedy is
available should she succeed. Does W/ro Chaltu have any recourse should
the court prohibit the removal of the doors and windows? Against who?
What arguments could she make in support of her position?
5. Ato Duguma steals ten quintals of cement from his neighbor, W/ro
Meseret. He sells the cement to Ato Belachew. Ato Belachew uses the
cement to construct his house. What can W/ro Meseret do? Has she any
claim against Ato Belachew? If so, what is the nature of the claim and
what arguments support it. What is the liability of Ato Duguma for his
actions? What do you rely upon in coming to that conclusion?
6. X owns an ox and V is a usufructuary of a plot of land. X assigns the ox to V
in the form of usufruct for four years. V uses the ox to harvest the crops
upon the land. After three years V sells his usufruct rights to Z. Z is
completely unaware of the agreement between X and Y regarding the ox.
Z takes possession as usufructuary immediately and continues using the ox
to harvest his crops. After 4 years X seeks to recover the ox. Can he? Why
or why not? What arguments can you make in support of his claim? What
arguments can you make in opposition to his claim? If X is not able to

85
 recover the ox does he have any other recourse? If so, what is it? Would
the answer to any of these questions change if the agreement between X
and Y was formalized in writing and properly registered? Why or why not?

List of Authorities
Bilillign Mandefro, Revised Unauthorized Unofficial Translation of Arts. 1126-
1674 of Book Ill of the Ethiopian Civil Code (1960) From the French
Original Draft (Addis Ababa University, Law Library Archive, Unpublished,
1973-1975).
Costigan, Geo P. "A Plea for a Modern Definition and Classification of Real
Property", 12 Yale L.R. 426 (1902-1903).
Dessalegn Rahmato. Land Tenure in Ethiopia: From the imperial Period to the
Present: A Brief Discussion in Topics in Contemporary Political
Development in Ethiopia, (Workshop Proceedings published by the
Department of Political Science and International Relations, Addis Ababa
University, 2000).
Dunning, Harrison C. Property Law of Ethiopia: Materials for the Study of Book
ill of the Civil Code (HSIU, Faculty of Law, Law Library Archieve,
Unpublished, 1967).
Jaffey, Peter. A New Version of the Reliance Thoery,
http://bura .bru neLac.uk/bitstrea m/2438/4166/1/Reliance%20theory%20
oWo20contract.pdf
Mason, J.K. and Laurie, G. T. "Consent or property? Dealing with Body and its
Parts in the Shadow of Bristol and Alder Hey", 64 M. L. R. 710 (2001).
Merryman, John H. & Clark, David S. The Civil Law Tradition: Europe, Latin
America and East Asia_(Virginia: The Michie Company Law Publishers,
1994).
(3rd
Paton, George W. A Text-Book of Jurisprudence, Ed), (London: Oxford
University Press. 1964).
12th
Planiol, Marcel. Treatise on the Civil Law, Vol. 1. Part fi Ed. (Traslated by
the Louisiana State Law Institute) (St. Paul; West Publishing Co; 1939).
Yacob Arsano, People's Choice and Political Power in Ethiopia: Elections and
Representation During the Three Regimes in Electoral Politics,
Decentralized Governance and Constitutionalism in Ethiopia (Addis Ababa,
Addis Ababa University Press, 2007).
Viannopoulos, A.N. "Movables and Immovables in Louisiana and Comparative
Law", 22 La L. Rev. 517 (1961-1962).
(6th
Yiannopoulos, A.N. Civil Law Property ed.) (USA, Thomson-West Publisher,
1996).
Viannopoulos, A.N. "Of Immovables, Component Parts, Societal Expectations,
and the Forehead of Zeus", 60 La. L. Rev. 1379 (1999-2000).

86
 Chapter 5: Subsidiary Classification of Goods**

5.1 Introduction
As explained in Chapter 3, the Code classifies goods into corporeals and
incorporeals.' Corporeal goods, in turn, are divided into movables and
immovables.2 In Chapter 4 we discussed the primary classification of corporeal
goods into movables and immovables in the Code. Numerous other
classifications exist which complement this primary classification of corporeal
goods. These other classifications can collectively be referred to as subsidiary
classifications of goods. The subsidiary classifications of things includes
corporeals and incorporeals, consumable and non-consumable goods, fungible
and non-fungible goods, divisible and indivisible goods, principal things and
their fruits, things in the public domain and those in the private domain,
collective and personal assets, and ordinary and special movables.3

This chapter is a modified form of a commentary published by this writer as

"Subsidiary Classification of Goods Under Ethiopian Property Law: A Commentary"
2:1 Mizan Law Review 52 (2008).
The title of Book III of the Code which is headed as "Goods" as well as the implication
of Article 1126 of the same implies that the subject matter of property rights under
the Code is goods. In this chapter, i have employed the terms "things',' "corporeal
goods," "property" and 'goods' interchangeably to mean the goods, tangible or
intangible, over which property rights may be established. The Code uses these
words rather inconsistently.
2
The English version of Article 1126 of the Code classifies "all goods" into movable and
immovable. A reading of the Amharic and French versions of Article 1126 of the Code
reveals that what is divided into movable and immovable goods under this provision
are only corporeal goods. See Billilegn Mandefro, Revised Unofficial Translation of
Acts. 1126-1500, 1647-1674 of Book III, Civil Code (1960) From the French Original
Draft, (AAU, Law Library, Unpublished, 1973-1975).
There are other classifications with secondary importance under Ethiopian law. See
Article 665/3 of the Criminal Code of Ethiopia (2005) which divides movable things in
terms of value into those things with 'very small economic value" and those things
which higher economic value. See also Article 669/1 and Article 681/2 of the same
which deal with "sacred or religious objects, or objects of scientific, artistic or
historical value... See also Article 1094 of the Code which divides things with
sentimental value (family objects) and those things without sentimental value.
Discussions about intrinsic and accessories and elements as regulated in Articles
1131-1134, and Articles 1135-1139 of the Code are not made here since they are an
aspect of the primary division of corporeal goods into movable and immovable under
the Code and are fully discussed in Chapter 4.

87
There are a number of reasons we treat the classification of goods Into
movable and immovable as primary and different from other subsidiary
classifications found in the Code. The division of corporeal goods into
movables and immovables permeates the entire private and public law of
Ethiopia generally and the Code particularly.4 This classification of goods, which
is based mainly on functional notions of mobility, is fundamental to the
structure of the Code. It is based upon common sense notions and thus more
readily accessible to non-lawyers. It indicates the past, present and future
significance accorded to immovable property in Ethiopia. And importantly, the
majority of the provisions of Book Ill of the Code are devoted to the regulation
of the various aspects of movables and immovables goods.5 Thus this primary
classification has far-reaching legal consequences while the subsidiary
classifications have comparatively limited legal effects.
This does not mean that the subsidiary classifications of things are trivial or
unimportant in property law. The differences between the two groups of
goods do simply imply the relatively greater importance given to immovable
things in the Ethiopian property law.
The subsidiary classifications of things in the property law of Ethiopia are
numerous. Understanding them is quite useful to fully grasp the basics of
property law. It is essential to understand the subsidiary classification of goods
in ordering property transactions and settling property disputes. Merely
knowing whether something is a movable or immovable will not be enough to
address certain issues of acquisition, transfer and extinction of ownership. In
some cases resort to the subsidiary classifications will be required.
Additionally, the uniqueness of certain goods (e.g., those in the public domain
of the state) warrant specially designed rules.
Property law jurisprudence gives little coverage to the treatment of subsidiary
classification of things. Moreover, the legal rules dealing with subsidiary
classification of goods are scattered over the various sections of the Code and
other laws, making a comprehensive treatment of such rules difficult. Apart

4
The law of movables and immovables affects the majority of the notions included in
Book Ill of the Code, contract law, agency law, law of persons, mortgage, antichresis,
civil procedure, criminal law and commercial law and other aspects of the law.
For example, the following articles in the Code do exclusively apply to immovable
property: Articles 1207-1256 (special rules applicable to immovable property and use
and ownership of water), Articles 1359-1385 (servitude), Articles 1460-
1488(expropriation) and Articles 1553-1646 (registration of immovable property).

88
from their wide distribution, many of the rules about subsidiary classifications
of things are incorporated in the Code in a manner that makes it difficult to
discern them. In consequence this topic may go unnoticed in some texts and
discussions of property law in Ethiopia.6
In this chapter we will discuss the various subsidiary classification of property
that exists in Ethiopia law. We will consider their nature, the criteria that must
be met for their existence, and identify the significance and legal effects
accorded those classifications to things under Ethiopian property law. It is
hoped that this explanatory endeavor will make Ethiopian legal rules relating
to the subsidiary classification of things more explicit, accessible and hence less
obscure to a student of property law. This chapter relies on analysis of the
pertinent legal provisions of the Code and the Commercial Code of Ethiopia as
well as on comparative law.

5.2 Corporeal and incorporeal goods

The division of goods into corporeal goods and incorporeal goods is one of the
many subsidiary classifications recognized in the property law of, Ethiopia. A
corporeal thing is any product a human person can perceive with.their senses,-
whereas an incorporeal thing is any product that humans cannot perceive,but
which has economic value.7 Incorporeal things are rights of property that can
only be claimed or enforced by legal action and not by taking physical
possession such as bank accounts, shares, trademarks, trade secrets and
copyrights. The critical test for classifying things into corporeal and incorporeal
products is human perception.
Roman law classified objects (all things whether or not appropriable) into res
corporeals and res incorporeals. To the Romans res corporeals meant physical
objects (and included the right of ownership), which could be perceived by the
senses. To them res incorporeals meant, on the other hand, objects without
physical existence but having pecuniary value such as inheritance, obligations

6
Recently, the writer has gone through property law course outlines of five different
law schools in Ethiopia in order to see if issues related to subsidiary classification of
things are covered in property law classes in the country. Assuming that what is
taught is what is included in a course outline, the result is that such course outlines
have not included the various types of secondary classifications with the exception of
the classification of things into private domain and public domain of the state, which
appears to be included because it is included in the Code at a paragraph level.
7 Article 40/2 of the FDRE Constitution. This sub-article defines private property as
tangible and intangible products having value.

89
and all real rights with the exception of ownership,8 which curiously were
regarded as objects having existejlce in space. The Romans introduced these
classifications because they believed only physical things could be possessed
and owned 9
Article 461 of the Louisiana Civil Code divides things into corporeal and
incorporeal. Corporeal things, under this Code, "are things that have a body,
whether animate or inanimate, and can be felt or touched. Incorporeals are
things that have no body, but are comprehended by the understanding, such
as the rights of inheritance, servitudes, obligations, and right of intellectual
property". The French Civil Code of 1804 did not provide for the division of
things into corporeals and incorporeals. But authorities there have arrived at a
slightly different version of this classification by way of inference from the joint
reading of several articles of the French Civil Code, i.e., the division of estates
(biens) into things (choses, biens corporeals) and rights (droits, biens
incorporeal).10 The classification has importance in relation to the rule under
Article 2279 of the French Code that states that possession is equivalent to
ownership in relation to movables as this rule only applies to corporeal
movables.11
Under the German Civil Code of 1900, property interests such as ownership,
usufruct and right of recovery may be established only over corporeal things.
12
The law of property in that country does not govern incorporeal objects.
In Ethiopian property law, the distinction between corporeal and incorporeal
goods is important. There are numerous articles applicable to corporeal goods
only;13 and others which only apply to incorporeal things.14 The relevance of
the dichotomy also lies in the message of Article 1126 of the Code which
classifies corporeal goods into immovables and movables. In addition, division
of things on the basis of corporeality is implicitly recognized in, for example,
Article 1128 and Articles 1347-1358 of the Code. One can also gather the

The Roman legal system and its jurists, conceived ownership not an intangible thing
but as tangible thing because they were unable to distinguish the right established on
an object from the object over which the right was constituted. See op. cit. Planiol, at
282.
Ibid., at 341.
JL0
See op. cit. Planiol, at 282.
"Ibid.
12
See Yiannopoulos, "Law of Things". at 775.
13
See Articles 1325-1346 of the Code which are exclusively applicable to things having
corpus.
14
See Articles 1347-1352 of the Code.
division of goods into corporeals and incorporeals from the title of Book Ill of
the Code by way of inference. It is also enshrined in the FDRE Constitution.15
To enable the acquisition and transfer of property rights in incorporeal goods
the Code equates them with corporeal goods. This is of some importance in
the law of possession for since incorporeal goods cannot be physically
controlled in the same way as material assets the Code has created the
concept of quasi-possession. Thus, the possession of incorporeal things is
expressed by the continued enjoyment of the right or by defending the right
when the occasion calls for it. In the context of the law of usufruct, because
the beneficiary cannot make physical use of incorporeal things her right is
limited to the enjoyment of the fruits of the subject matter.
Corporeal goods are the potential seats of property rights only if they can be
appropriated. Only those incorporeal things which are expressly designated by
law as the objects of property rights can be regarded as such. For example,
Articles 1128, 1309, 1310 and 134716 of the Code can be taken as some of such
designations. Other legal rights fall within the domain of contract or tort law.
For example a person's claim in negligence for injuries sustained in a car
accident or a claim of specific performance of a contract are in personam rights
and clearly beyond the scope of property law.17

5.3 Consumable and non-consumable things

Corporeal things may be consumable or non-consumable. The central test for
the classification of things into consumable and non-consumable product is
whether they are extinguished or intended to be extinguished by use.
Extinction of consumable things may be the result of physical
destruction (e.g., consumption of foods or drinks) or the
consequence of a juridical act (e.g., alienation of money). In all cases
a disposition takes place which cannot be repeated. Non-
consumable things continue to exist in spite of prolonged use (e.g.,
furniture, houses, utensils). 18

25
See the reference to "any tangible or intangible product" in Article 40/2 of the
Constitution.
16
See for example Article 1128 which applies to claims and other incorporeal rights In
securities to bearer and Articles 1309, 1310- and 1347 which apply to usufruct.
17
Planiol, at 267-270.
18
Yiannopoulos, "Law of Things", at 775.

91
Intention (animus) alone does not make a thing a consumable or non-
consumable. It is ascertained by reference to objective criteria (consumption
or alienation) and the prevailing notion in the pertinent trade.

The usufructuary of consumables is entitled to get ownership over the object

the moment the usufruct is validly created and transfer procedures are
finalized. Article 1327 does not require a beneficiary of a usufruct to restitute
the object given in usufruct in the case of consumables. The usufructuary of
consumable things is, however, under the obligation to pay the value of such
things calculated at the time the usufruct was created.19 In addition to such
remedies, the possibility of returning things of comparable quantity and quality
(to the bare owner) upon the extinction of the usufruct is available even if such
option is not preferred under Ethiopian law. A bare owner who has subjected
her consumable things to usufruct is thus entitled to certain special
protections. On the other hand, a beneficiary of usufruct over a non-
consumable is obliged to properly manage the property over the course of the
usufruct and restitute the object when the right expires.

For practical reasons onJy consumable things can be the subject of a loan for
20 21
use or be let or hired. A finder of perishable things may sell them out at a
public auction and must keep the proceeds thereof for the owner.22 Once
consumed even a possessor who acquires goods in bad faith cannot be
required to make restitution. "Depending upon characterization of things as
consumable or not consumable, one may be under a duty to return either
specific things or things of like quantity and quality".23 A creditor may not
invoke specific performance with regard to consumable things.24

The law of movables and immovables (the principal classification) leaves a gap
covered by the law of consumables. Generally transfer of ownership of
movables or immovables does not take place in the absence of cause implying
transfer of ownership. However in the case of consumables transfer of
ownership occurs upon delivery even if the parties have intended to create
usufruct. The inevitability of such transfer arises out of the inherent nature of
consumables. If usufruct is established on a movable thing, the usufructuary is
normally required to restitute the very thing she gets in the form of usufruct to

19
See Article 1327/2.
20
Articles 2767-2778.
21
See Articles 2727-2766.
22
See Article 1156.
23
Yiannapoulos, "Law of Things", at 777.
24
Article 1747.

92
the bare owner upon the termination of such usufruct; but the usufructuary of
a consumable thing is not expected make restitution of the thing given to her
in the form of usufruct. Under the primary classification, a true owner is
entitled to recover her thing from the possessor in bad faith, which is not
possible in the case of the law of consumables if the possessor in bad faith uses
such thing up.

5.4 Fungible and non-fungible things

Another important distinction is between fungible and non-fungible things.
The criterion for determining if a thing is fungible is the possibility of it can be
replaced by or exchanged with another thing. Two or more things are fungible
vis-à-vis each other if they belong to the same genre of things and if, by virtue
of their physical characteristics or the intention of those who deal with them,
they are interchangeable or can be substituted one for the other in view of the
end for which they will be used.
A fungible thing is normally a movable that is capable of interchange.
Normally, fungibles occur in trade in terms of number, weight or measure.
Thus one can exchange the same quantity of white (magna) teff with the same
quantity of another white (magna) teff. Likewise, an Ethiopian Ten Birr note
can be exchanged with another Ethiopian Ten Birr note. One can do the same
in connection with the same quality and quantity of butter.
The possibility of replacement of one thing by another is not the only test of
fungiblity. French jurists do not agree whether the determination of a thing as
fungible or non-fungible depends upon its nature or upon the intention of the
parties. Some argue that intention controls. Others assert that while intention
may be relevant, the thing must be inherently furgible, stating, for example,
that the intention of the parties cannot make a house fungible. In German law
the determination is made "by reference to objective criteria and notions
prevailing in trade".25 Thus, it may be argued that there are four ways for a
thing to be fungible: its inherent nature, agreement, the law and notions
prevailing in trade.
Sometimes fungibles are consumable:
...quite frequently, things which are fungible are also consumable.
But this is not necessarily so, for there are things which are fungible
without being consumable (e.g., books of the same edition) and
things which are consumable without being fungible (e.g., wine of a
particular vintage). In any case, as the two characteristics frequently

25
Op. cit, Yiannopoulous, "Law of Things", at 779.

93
 coincide, this confusion of concepts has not caused substantial
.26
practical difficulties

The distinction between fungibles and non-fungibles is important in the fields

27 28
of property, contracts, law of succession and civil procedure. The
possession and thus ownership of fungible things is transferred from a
transferor to a transferee when, in addition to the conclusion of a juridical act,
the seller individualizes the thing (picks it out) or weighs, counts or measures
out the required quantity of thing from her stock of things of the same kind
and makes a declaration to that effect. The use of the terms "a particular
thing" and "a specific chattel" in the pertinent provisions of the Code suggest
that only non-fungible things may be the subject matter of preemption,
promise of sale and right of recovery.29

Article 1747 ° of the Code provides that where a contract relating to fungible
things is silent about the quality of the fungible things due to the creditor, the
debtor may opt to deliver an average quality of a thing, which conforms to the
generic description of that fungible. In the case of non-fungible things the
creditor may, under some conditions, require the debtor to deliver the thing
agreed or pay her monetary compensation for subject matter of the contract
g.311
cannot be replaced by another thin

5.5 Divisible and indivisible things

This concept is quite abstract. It is a legal concept that may not correspond
with lay notions. Divisible things can be split into several units which can be
assigned for individual ownership.

Under Roman law, things were divisible if they could be divided up into several
parts of the same kind as the whole without thereby suffering diminution in
value.32 Article 1340 of the Civil Code of Louisiana (1870) stated that a thing is
indivisible "when a diminution of its value, or loss or inconvenience of one of

26
Ibid
27
See Article 1047.
28
SeeArticles 225 and 226/3& 4 of the Civil Procedure Code of Ethiopia (1965).
29
See Articles 1386 and 1411/1 of the Code.
° The application of Article 1778 of the Code also hinges on the distinction between
fungibles and non-fungibles. See also Articles 1145/1, 1778, 1969, 1832, 2234,
2280, 2300, 2471-2489, 2490, 2782, 2810 and 2872.
31
See Article 1745.
32
Ibid. at 780.

94
 33
the owners, would be the consequence of dividing it". Article 752 of the
German Civil Code envisages the possibility of partition of things in kind in
relation to those things which, without diminution in value, can be divided in
equal parts corresponding to the shares of the co-owners.34

It is said that a thing is indivisible if it cannot be physically divided into discrete

parts or though it can be so divided, the parts cannot be used for the same
purposes as the undivided thing, the parts are -not.-of the same nature, the
parts are not of the same value, or the aggregate value of the parts is
significantly less than the value of the undivided thing.35

The Code and the Revised Family Code36 each recognize divisible and indivisible
things in the context of co-ownership of immovables. Article 1272/1 of the
Code provides that each joit owner of an immovable may apply at any time to
have the immovable divided. Under Article 1272/2 of the Code, a court to
which a request for division is made is expected to make order for sale instead
of division where it finds such property to be indivisible either because it would
be contrary to the nature of or purpose of the immovable or would reduce its
economic value or seriously impair the ability to use it.37 Under Article 1276
"joint ownership may be perpetual where—division thereof is impossible or
would be unreasonable".

33
Ibid. This Article has since been repealed.
34
Section 752 reads: Cancellation of co-ownership occurs by division in kind if the joint
object is or, if there is more than one object held jointly, the joint objects are
capable of being divided into identical parts corresponding to the shares of the part
owners without reducing their value. The distribution of identical parts among the
part owners is effected by drawing lots. And Section 753(1) states: If division in kind
is excluded, then the cancellation of co-ownership occurs by sale of the joint object
according to the regulations on sale of a pledge, or in the case of a plot of land by
compulsory auction, and by division of the proceeds. If disposal to a third party is
inadmissible, then the object must be auctioned off among the part owners.
See A. Precis, The Classification of Things,
http://www.scribd.com/doc/36709322/The-Classification-of-Things-Property
(accessed on January 10, 2008).
36 6th
Revised Family Code Proclamation No. 213/2000, Fed. Neg. Gaz. Year
Extraordinary Issue 1.
37
In cases of matrimonial property upon the dissolution of marriage and ordinary joint
ownership, the law gives the ex-spouses and the joint owners the right to insist on
the division of the property. The division will be equal in the case of the former and
pro rata in the case of the latter. See Article 91 of the Revised Family Code and
Article 1272/1 of the Code.

95
As a general rule movables are indivisible except for those" whose value
consists in their substance rather than form and those consisting of a mass of
similar things" (for example: grain).38 Article 1264 of the Code envisages the
division of certain types of movables. it stipulates that each joint owner may
at any time apply for the partition of fruits of a thing jointly owned. Thus,
certain jointly owned movables can be partitioned (e.g. some meters of cloth
or a certain quantity of maize). The Revised Family Code also indicates the
possibility of dividing movable things in creating the rule of "partition in kind"
of common property.39 Article 92/1 of the Revised Family Code provides "that
if there is a certain property which is difficult or impossible to be divided...,
such property shall be sold..."
Read together, provisions of the Code and the Revised Family Code described
above give us criteria to use to determine whether or not a given property is
open to partition in kind namely: the possibility of division, whether division is
contrary to the nature or purpose of the property, whether division would
reduce economic value or impair usefulness of the property and finally the
desirability of division. In respect of the latter it may be undesirable to, for
example, partition a jointly owned thing for which Zhe co-owners have
developed sentimental attachment.
It is not economically feasibility to divide a thing when economic value of parts
is significantly less than the value of the share of the whole property. It is not
feasible to divide property when the divided part is, because of its size,
manifestly useless, as compared with the unthvided whole. Some things are
too difficult or impossible to divide, like for example a family pet, a
refrigerator, a motor vehicle and a pair of trousers. In these cases division
would extinguish the original thing and/or make it unfit for its original purpose.
It is not possible to divide a plot of land on which a condominium is built during
the life time of such condo.40 Nor are parts of a condominium intended for
.41
common enjoyment open to division. A party wall cannot be partitioned
Determining whether a thing is divisible or not is important for determining
how property that is owned by more than one person should be dealt with
when one or more owners wishes to claim their share of the property. If the

38
Do. cit. Yiannapoulos, "Law of Things", at 781.
39
See Article 92/1 of the Revised Family Code.
° See Article 2/1 of the Condominium Proclamation No 370/2003, Fed. Neg. Gaz. Year
9 No 95.
41
Article 1201/1 defines party wall as opposed to private wall as 'a wall or fence
separating two parcels of land,' which may be argued by virtue of contextual
reading to include buildings or parts thereof.
thing is divisible, then the solution adopted is physical partition of the thing
and apportionment of the resulting units to each owner according to her share.
If it is not possible to divide the thing then court will order the thing to be sold
at auction with the proceeds divided among owners pro rota, which is called
"licitation".42 If the time for division or sale of the thing is not appropriate, it
can be postponed for a certain period of time.43

5.6 Principal things and their fruits

Fruits are things derived from or produced by things. They can be corporeal
things or incorporeal economic advantages. The concept of fruits is useful in
the application of some of the rules regarding acquisition, of ownership (e.g. via
possession in good faith45 and accession), ioint ownership,47 usufruct48 and

42
It also may be oossible for the parties to agree to sell the property privately and
divide the proceeds themselves without seeking court order. In some cases the
parties may agree to have the property valued and the remaining owner(s) buy out
the share(s). For example: A and B own a painting, which by its nature is indivisible,
the parties agree have it valued. The value is set at 100,000 ETB. They then agree
that A may buy out B's share in the painting for 50,000 EIB becoming sole owner of
the painting.
43
See Articles 1271/2 and 1273 of the Code. In the case of movables, the court, upon
the application of one of the joint owners, has the power to postpone the sale or
division up to six months while, in the case of immovables, the court can postpone it
for a maximum of two years. The request for postponement may be based on
anticipated rise in the price in the thing or the thing is under construction or some
issues of claim by a third party are anticipated. In the mean time, where necessary
(e.g. the co-owners are in serious discord), the court may appoint a person who
administers the property.
Op. cit, Ylannopoulos, "Law of Things", at 785.
45
See Articles 1161-1167 of the Code. Under this provisions, though nothing is stated
about the fate of fruits obtained out of a thing delivered to a person in good (in the
case of stolen thing,) or in bad faith, it appears sound to argue that the person in
either case should return not only the principal but also the fruits which she has
collected in the course of the possession of the thing. This is precisely because she is
not the owner of the thing in her possession and absent a contrary stipulation she
who owns the principal owns the fruits thereof.
46
See Articles 1171-12*3.
47
See Article 1264 of the Code.
48
See, for examples of, Article 1309, 1311, 1328 and 1331 of the Code. In relation to
corporeal goods, a usufructuary has two rights: the right to use such thing given in

97
common property including personal property of one of the spouses49 both in
the course of marriage and after its dissolution. These rules trigger the
question as to who, and as of when, shall be the owner of the increments
(fruits) of the main thing (which is subject to joint ownership, usufruct, pledge
and marital property). Merely knowing that a corporeal good is a movable or
immovable may not answer this question.

According to several provisions of the Code, which need to be read together,

"fruits'50 are increases of a thing in conformity with its purpose without
diminution of the principal thing. Fruits are all that a thing produces at
periodical interval without diminution of its own substance.-51

This definition distinguishes fruits from "products" (produits). In a

technical sense, products are things derived from a principal thing

usufruct and be the owner of the fruits thereof whereas in the case of incorporeal
things (e.g. usufruct over trade secrets), the nature of the object of the usufruct
dictates only the enjoyment of fruits.
49
See Article 62/1 of the Revised Family Code which declares that all fruits regardless
of their nature obtained out of both personal and common property shall be taken
as matrimonial property.
° Article 1170 provides: "(1) Whosoever owns a thing shall own the natural fruits
thereof. (2) Periodic products of a thing and anything which may according to usage
be derived from a thing in conformity with its purpose shall be deemed to be fruits."
Article 1171 deals with increases from breeding animals, Articles 1172-1174 with
crops and see Article 1333.
51
See Viannopoulos, "Law of Things", at 785-786 wherein the author explores the
definition of fruits in French, Louisiana, German and Greek Law. He states that the
French Civil Code and Louisiana Civil Code do not fruits. In those Codes fruits are
classified as natural fruits, civil fruits and fruits of industry. "Natural fruits are "the
spontaneous product of the earth" and "the product and increase of cattle". Fruits
of industry are those "obtained by cultivation" as a result of "industry bestowed on
a piece of ground". Civil fruits are "rents of real property, the interest of money and
annuities," as well as "all other kinds of revenue derived from property by the
operation of the law or private agreement." In the two jurisdictions, writers and
courts have inferred from their respective civil codes a definition of fruits which is
"things produced periodically by a principal thing without diminution of its
importance". The German Civil Code, on the other hand, under section 99, states
that: (1) Fruits of a thing are the products of the thing and the other yield obtained
from the thing in accordance with its intended .ise.(2) Fruits of a right are the
proceeds that the right produces in accordance with its intended use, in particular,
in the case of a right to extract component parts of the soil, the parts extracted.(3)
Fruits are also the proceeds supplied by a thing or a right by virtue of a legal
relationship.

98
 . whose substance is thereby diminished. Once separated, the
products are not re prod uced....This conceptual technique carries
significant practical consequences in connection with the status of
timber and mineral substances extracted from the ground. The
French regard stones extracted from a quarry not regularly exploited
4A and trees cut down without any plan of exploitation as "products".
The products of a regularly exploited quarry or forest, however, are
considered to be fruits.52

If things are not obtained at a regular interval or produced using the substance
of the main thing, they are called products, which mark the distinction
between fruits and products. The term 'regular interval' means production of
increases yearly or at a shorter interval.53

Products may be collected from a thing by adding something to the principal

thing mainly in the form of labor and raw material, which consequently
diminishes the substance of the principal thing. It can be difficult to determine
whether a thing is a fruit or a product. The Code seeks to clarify the issue and
in Article 1170/2 deems "periodical products of a thing and anything which
may according to usage be derived from a thing in conformity with its purpose"
to be fruits. In the context of usufruct, the Code enables the preparation of a
working plan where the land would generate products (using the definition
proposed in this text). That the section refers to products, and not fruits, is
apparent from its wording as a whole. Admittedly the use of the word "fruits"
in 1333 could confuse the issue. The Article reads:

The owner or usufructuary may require that a working plan be prepared in

respect of the thing where the usufruct extends:

(a)To a thing such as a forest, the normal mode of exploitation of

which does not consist in collecting fruits yearly or at shorter
intervals; or

(b)To a thing such as a quarry, the substance of which diminishes in

consequence of exploitation.

Fruits can be divided into natural fruits and artificial fruits. Natural fruits are
those fruits, which are the periodic increments of animals and plants.54
Artificial fruits are classified into civil and industrial fruits. Civil fruits are
incorporeal entitlements that arise either by virtue of law or agreement. Civil

52
Ibid, at 786.
53
This is an inference from Article 1333 (a).
Planiol, at 644-650

99
fruits do not come out of the body of the principal thing.-95 Examples include
interest earned on sums of money invested, profits from a business associatior,
and rents. Fruits obtained by cultivation or working the soil are called
56
industrial fruits (e.g., trees and crops).
In terms of legal effects, natural and industrial fruits become property of the
owner of the principal thing when separated from them. The general rule is
that the person who owns the main thing also owns the fruits thereof. The
ownership of fruits of breeding is given to the owner of the mother. Thus the
owner of a cow owns her calf and the owner of the bull has no claim to
the calf.57 Joint owners of a thing are owners of the fruits or products of
such thing proportionate to their share in the principal.58 Under Ethiopian
family law the fruits of both personal and common property are regarded as
common property.59 In principle, an owner who has been wrongfully deprived
of possession of property should be entitled to claim the recovery not only of
the main thing but also the fruits thereof precisely because the main thing
belongs to the original owner.
There are exceptions to the rule that she who owns the principal is also the
owner of the fruits thereof. A usufructuary, not the bare owner, is the owner
of the fruits produced by the thing given in usufruct between the date of
creation and date of extinction of such usufruct.60 Where a person is required
to make restitution of property, she is given the right to retain the fruits of the
property she has received .61 In the event of return of an absentee, the fruits of

55
Ibid.
56
Ibid.
57
See Article 1171/2 of the Code.
58
See Article 1264 of the Code.
59
See Article 62/1 of the Revised Family Code, which provides that: "all income
derived by personal efforts of the spouses and from their common or personal
property shall be common property." The corresponding provision of the Code..
Article 652/1, is not as explicit as, Article 62/1, in this regard. In the face of Article
649/2 of the Code, it might be argued that income (fruits) obtained out of the
personal property of the spouses should not be not regarded as common property.
Both the Revised Family Code and the Code use the term 'income'. Using the
criteria and definitions we have developed in this text, income generated from
property would be classified as civil fruits of that property.
60
See Article 1328 of the Code.
61
See Article 2178/1.
ier property collected by her presumptive heirs or legatee are given the option
to retain such fruits.62

5.7 Things in the public and private domain

Every state, irrespective of the ideology it subscribes to, needs property. Of
course, a state with a socialist ideology is likely to have more property than a
state with a capitalist ideology. Property under state control enables the state
64
to carry out its functions.63 The state uses its property to discharge its roles.
Some of the property belonging to the state is described as being within the
public domain. These include things like public roads, bridges and national
museums which everyone has access to and can use. Property in the public
domain may consist of immovables or movables. Things in the public domain
may be under the control of private persons though usually such resources are
put under the custody of public authorities.65
Thus far our discussion of the various categories of things has focused upon the
qualities of the things themselves. The determination of whether goods are in
the public domain or not, requires us to focus on whether the goods can be
privately owned. That determination in many cases is one of public policy and
not necessarily governed by the inherent characteristics of the specific pieces
of property themselves. Articles 1444-1459 deal with property in the public
domain.

62
See Article 171/2.
.33
These functions include the classic responsibilities such as defense, security and the
administration of justice as well as the more modern ones such as redistributing and
allocating wealth, and supporting economic and political stability.
64
At present land, water and other natural resources, n Ethiopia, are collectively
owned. These resources are au.tomatically taken as part and parcel of public domain
things. They may or may not be the case. It is a mistake to take them all as public
domain resources. Public domain things are different from common things (e.g. the
ocean) and public domain things are not the same as collective things (such as land
and water in Ethiopia today).
Articles of cultural heritage (e.g. an old spear and shield) may be possessed by a
private person. The person in possession of such objects will have a limited
ownership that enables the public to have access to these cultural heritages. The
heading of Section I of (Book Ill, Title IX, Chapter 1) the Code reads just "Public
Domain," which implies that if the property should be dedicated to public use or
public service, it is immaterial whether possession thereof lies in a private or public
persons. Thus, all property owned by private persons does not necessarily belong to
the private domain and all property owned by the public institutions does not fall
within the ambit of its public domain.

101
5.7.1 The basis of the classification

Roman law recognized three kinds of public property namely: (a) public
property not open to private ownership as property serving public purpose; or
(b) things which were public only in the technical sense as destined to public
use; and (c) property of the state or its political sub-divisions which was
susceptible of private ownership and subject to the rules of civil law like any
other property held by private persons.66 Title to these things was not
necessarily vested in the state. Hence, the Romans regarded those resources
dedicated to public purpose or public use as property forming part of the
public domain of the Roman state while some other resources held in the
hands of the state but not so open to the public were taken as property
forming part of the private domain of the state. Public use or dedication to
public purpose was the distinguishing mark of property which formed part of
the public domain of the state.
Article 1444 and 1445 provide:
Art. 1444
(1)Property belonging to the State or other administrative bodies
shall be subject to the provisions relating to property privately
owned.
(2)Such property shall be subject to the provisions of this Section
where it forms part of the public domain.
Art. 1445
Property belonging to the State or other administrative bodies shall be
deemed to form part of the public domain where:
(a)lt is directly placed or left at the disposal of the public; or
(b)lt is destined to a public service and is, by its nature or by reason
of adjustments, principally or exclusively adapted to the particular
purpose of the public service concerned.
These provisions divide property (goods) into two broad classes, namely
property in the public domain and property in the private domain. Property
owned by the state that is not in the public domain is governed by the
provisions of the Code dealing with private ownership.. This property can be
movable or immovable and might be held by political units at any level of the

66
See A.N. Ylannopoulos. "Common, Public, and Private Things in Louisiana: Civilian
Tradition and Modern Practice", 21 La. L. Rev 697 (1960-1961) at 707.

102
Ethiopian Government, federal and state, and regardless of the type of
property, be it movable or immovable.
Property which is subject to public use might be state property. In civil law
systems state property is divided into property in the public domain and
property of,tte private domain. Jurists disagree on the criteria for this
distinction. view is that the criterion is that property in the public domain
is not susceptible of private ownership.67 This view triggers the question: are
there things, which are absolutely insusceptible of private appropriation?
A second view states that the true reason for the dichotomy is that things in
the public domain are those that that are dedicated to public service. A third
view-is-that property in the public domain has as its essential characteristic
that it is dedicated to public use.68 In this view the property is not susceptible
of private ownership not because it is state property but because it is
dedicated to public use. Thus there are certain things, tangible or otherwise,
which are regarded as in the public domain of the state by virtue of their
dedication to public use or purpose. It is also to be noted that things in the
public domain can be commercialized while they are in the hands or under the
control of the public authorities, though to a very limited degree.
The Code adopts the view that state property in the public domain is
characterized by being dedicated to public service or use. It is not the inherent
characteristics or attributes of a thing which qualify it for the category of
property in the public domain, but it is rather the needs of a given community
as reflected in its laws or practices or policy that makes a given thing part of
public domain of the state. So virtually anything open to appropriation can fall
within the scope of property in the public domain if so declared by a concerned
community. The fact that a given property is inalienable or is not subject to
prescription does not mean that it is inherently incapable of private
appropriation but the inalienability or inability to prescribe may rather come
out of dedication of such thing by law to the common good.
The Code does not give a clear-cut definition of the term public domain.
Instead, the Code gives us guidelines and some examples of property which fall
into the public domain. The basic guideline is whether property is held by the
state and whether or not that property is accessible to everybody for use or
destined to a public purpose or service.
Article 1445 of the Code provides that a thing is regarded as falling in the
public domain of the state if '1t is directly placed or left at the disposal of the
public" or "it is destined to a public service and is, by its nature or by reason of

Ibid, at 704.
68
Ibid, at 711-712.

103
adjustments, principally or exclusively adapted to the particuiar purpose of the
public service concerned". Thus they are in the public domain if made
available for public use or to provide a public service. The obvious implication
of Article 1445 of the Code is that all goods, movable or immovable, in the
hands of the state that meet the requirement of this Article fall within the
ambit of public domain of the state and those the state controls and which do
not meet the test of Article 1445 fall within the private domain of the state.

Articles 1446-1447 and Article 1255 of the Code deem certain property to be
within the public domain. As regards these illustrations, there would be no
controversy for the Code requires one to categorize them automatically into
the public domain. Under Articles 14464447 and Article 1255, mention is
made to antiques one finds in museums, roads, streets, canals, railways,
seashores, port installations and lighthouses, churches, mosques, fortresses,
waterways, lakes and underground accumulations of water. All of these fall
within the public domain of the state.6 It is submitted that there are many
kinds of property that may be designated as property in the public domain of
.
the state 70 For instance, the period of protection of patent and copyrights is
limited under Ethiopian law. Enjoyment of these rights is not for an indefinite
period of time. After the lapse of a period determined by law, the public is free
.72
to use patented71 and copyrighted materials whose duration has lapsed

Article 1445 is a fall back provision. That is, where property belonging to the
state does not fall within the scope of Articles 1446-1447 and Article 1255 (or
other proclamations); then, recourse should be made to the test set forth in
Article 1445, i.e., public use (accessibility) or purpose of public service.

69 See also Article 130(a) and 130(d) the 1955 Revised Constitution of Ethiopia for a list
of things in the publ4c domain of the state at that time. These were probably
reflected in the Code.
° For additional lists of property included in the public domain of the state, see Articles
2/7 and 2/8 of the Research and Conservation of Cultural Heritage Proclamation No.
209/ 2000, Fed. Neg. Gaz. Year 27 No 39; and also Artlice 2/20 of the Ethiopian
National Archives and Library Proclamation No. 179/1999, Fed. Neg.Gaz. Year 29 No
63.
71
See Inventions. Minor Inventions and Industrial Designs, Article 16, Proc., No 123,
1995, Fed. Neg. Gaz. Year 54th No 25. A patented invention fals within the public
domain, perhaps becomes a common thing, twenty years after the issuance of
certificate of patent in favor of the owner.
72
See Copyright and Neighboring Protection, Article 20, Proc No 410, 2004, Fed, Neg.
10th No 55. In broad terms, copyright expires fifty years after the death of
Gaz. Year
the author.

104
5.7.2 Legal effects
Different legal rules apply to property belonging to state or other
administrative bodies which is in the private domain and public domain. There
are three ways stat—property in the public domain of the state could be
regulated. Option 4Jsto regulate them exclusively on the basis of private
property rules. For example, in the German Civil Code, "state property is in all
cases private property; however, exercise of ownership rights is limited in the
interest of public use and public purpose. The power of the state to regulate
public use and public purpose is not regarded as an incident of ownership but
as authority deriving from the sphere of public law properly belonging to the
state"."
The s con approach is to treat things dedicated to public use or public service
entir lv nder public law; here private law will have nothing to say about
things that are not subject of private ownership. Article 714 of the French Civil
Code appears to adhere to this pattern. Finally, the third approach is to govern
public domain things partly under a civil code and partly under administrative
law. According to Planiol, civil codes should to some extent treat things under
public domain for a couple of reasons: private property everywhere comes in
contact with the public domain and that the general classification of things
belongs essentially to a civil code which should "contain the basic principles of
74
law".
Thehird lybrid approach is preferred under the Code. The mixed approach
rests n t e belief that both public law and private law should in different
respects govern property forming part of the public domain of the state. Titles
VI, VII and VIII of Book Ill of the Code govern property in the private domain of
the state and property held by persons other than the state. This means
Articles 1126-1443 of the Code govern stat2 property in the private domain.
This view is bolstered by Article 1444(2) which provides that "property
belonging to the state or other administrative bodies shall be subject to the
provisions relating to propertyi privately owned".
The state owns property in its private domain in the same way as an individual
or a company does. The consequence of this is that property forming part of
the private domain of the state could be alienated (either freely or for
consideration), acquired through possession in good faith, occupation,
prescription and accession. However, if a certain property is categorized into
the public domain of the state, Articles 1444-1459 of the Code govern it. These
Articles are not comprehensive but provide a skeleton for a scheme of

• Yiannopoulos, "Common, Public, and Private' at 771(?).

'
Planiol at 814.

105
~-q
-i
regulation of property in the public domain. Articles 1454 and 1455 state that
property which forms part of the public domain may not be alienated and
cannot be acquired by possession in good faith75 or usucaption.76 The
consequence of this is that state property in the public domain may not be
alienated either freely or for consideration even by the state or its
administrative units, which are merely regarded as custodians. Further, no one
can acquire ownership over such property through possession in good faith or
usucaption. Nor can one acquire property in the public domain through
occupation and accession.

5.7.3 Possibility of limited marketability

Property forming part of the public domain of the state is not absolutely put
beyond commerce. The public authorities in charge of the management of
things in the public domain have certain powers from which we can infer that
things in public domain under the Code can be subjected to limited private
relations. Private persons may be given permanent or temporary concessions
to property in the public domain. A concession, however, must not have the
effect of altering the purpose of the property.77 For example, private persons
may be given concessions to artifact shops and restaurants in museums. A
private company may be given a concession and be allowed to purchase the
right to put up advertisements on public roadways. Public authorities can
authorize private persons to occupy property in the public domain and
construct works on them.78 In order for an individual to build on property in
the public domain, there must be authorization to undertake construction
specifying the character of such construction as well as the time for which the
authorization is granted and the fees chargeable!9
A public authority that gives an authorization or grants a concession is given
the power to cancel the authorization or the concession if the private
individual (beneficiary) fails to adhere to the conditions specified in the
agreement.80 Pursuant to Article 1459 of the Code, the public authority is
empowered to order the destruction of any work or the cessation of any

75
See Articles 1161-1167 of the Code..
76
These provisions should be read as putting things in the public domain beyond the
reach of attachment as well as prescription.
77
See Article 1456 of the Code.
78
Article 1457 of the Code.
79
See Article 1457 (2&3) of the Code.
!° See Article 1458 of the Code.

KIR
activity which impairs the very existence or the purpose of the property
forming part of the public domain. Public authorities charged with the custody
of public domain property should have the right (of course on behalf of the
81
public) to bring possessory and petitory actions.

5.7.4 Enlargement of the public domain

Article 1450 of the Code envisions two means through which property in the
82
public domain may increase or expand: expropriation and alignment.
Expropriation is the taking away of rights in immovable property for public
purposes in return for an advance payment of compensation.83 The property
taken through expropriation. may enter the public domain. TM Alignment
proceedings, on the other hand, help the competent authorities to widen,
85
narrow or straighten crooked roads or lengthen short roads or streets.
Where an alignment proceeding reveals that an un-built upon plot of land falls
within a public highways, it will be automatically incorporated into the
roadway.86 Alignments are commonly used in town planning.

5.7.5 Shrinkage of the public domain

There are three ways things in the public domain can cease to be in the public
domain and re-enter the private domain. (/9' way is declassification through
declaration. According to Article 1454 of the. Code, the pertinent public
authority may alienate property forming part of the public domain after
declaring it is nJonger part of the public domain. The way to
withdraw things from public domain is non-use. If a thing in a-puuic domain
for example, a street, is no longer in use, it may become open for private
appropriation. If a fortress no I,oner serves its purpose, then it may fall within
the private domain. Th ttiir way is as a result of natural causes. For
instance, a building in the public domain may collapse aa result áf earthquake
or other natural disasters.

81
This is inferred from Articles 1148, 1149 and 1206 of the Code which recognize the
right of a holder to file possessory action against a usurper.
92
In addition to these two avenues, the state may acquire property falling within the
ambits of its public domain through investments, donations, excavations, accession
and inheritance in default of heirs. For the latter, see Article 852 of the Code. See
also Article 1194 of the Code for the case of vacant immovables without a master.
83
See Article 1460 and Article 1464. See also Article 40/8 of the FDRE Constitution.
84
This will be true to the extent expropriation is invoked to expand the public domain
of the state.
85
See Article 1450.
86
See Article 1451 of the Code.

107
 5.8 Personal and collective things
Originally written with a view to the private ownership of the critical resources
of the country, the Code could not envisage the division of things into personal
and collective things. This subsidiary classification of things was added to the
property law of Ethiopia after 1975. The distinction between personal and
collective things is still relevant today because the FDRE Constitution rias
maintained collective ownership of natural resources including !and as the
legacy of the Ethiopian revolution, it helps us to identify things open to private
ownership and those which are put beyond the reach of private ownership.
This subsidiary classification is an attempt to link the wealth of an individual to
her labor and to her material and spiritual needs.

5.8.1 Nature and basis of the classification

The term "personal things" is not used here to mean property owned by one of
the spouses in the course of marriage;87 nor is it used to connote human
faculties which may be the sources of immense power and wealth.88 Rather,
the term is employed to mean personal as opposed to collective assets in the
ideological sense. Personal things are resources owned by a person for her
own and her dependents' survival, comfort, convenience and cultural needs.89
Personal things are linked to the person who owns them.
The term "personal assets" implies that the owner should not be allowed to
accumulate property which would permit her to hire and exploit the labor of
others. It also implies that the principal source of personal things is the labor
of the owner herself. The basis of the division of things into personal and
collective is an ideological preference. Personal things can be transferred by
sale, donation, inheritance and attachment. in order to ensure that the
possessions of individuals do not grow into productive assets, legal
mechanisms are devised to limit the size, the number and the magnitude of

87
See Articles 57-58 of the Revised Family Code.
88
Op.cit. Minogue, "The Concept of Property", at 15. Here argues that all three
categories of property: personal attributes (e.g., quick wits), personal property (e.g.,
the clothes on our back) and productive property (e.g., farms and factories) might
be the source of immense influence on others.
39
See Articles 10-18 of the Constitution of the USSR (1977), http:/fwww.friends-
partners.orgJoldfriends/constitution/const-ussrl977.html (accessed July 16, 2011).
In 1987. Ethiopia followed the footsteps of the USSR when it adopted a constitution
which reproduced a verbatim copy of these provisions on the forms of property. See
Articles 12-18 of the Constitution of the Peoples Democartic Republic of Ethiopia,
Proc. No. 1, 1987, Neg. gaz. 47 Year No 9.

108
personal property. Constant nationalization of property is also employed.
Personal property can include "a one-family nouse, a one-family apartment,
household articles, clothing and motor vehicles, etc. The list of articles which
may belong to a person varies according to her place within the social and
economic stratification in her society".90
All resources, other than those permitted to be owned by private individuals,
are regarded as productive assets. Productive assets are to be held and
managed by the government on behalf of the public. Productive assets chiefly
consist of natural resources, including land and water resources, and other key
means of production.91 As stated earlier on, intangible things such as patent
and copyright may also enter into the domain of productive assets. The nature
and size of things falling into the domain of productive assets obviously depend
on the stage of the economic development of the society which adopts this
classification of things.92

5.8.2 Reasons for the classification

It is argued by the proponents of socialism that some property is created by
nature for the use of everyone and should not be owned privately. Some
assets are produced by the capitalist class not as a result of its own innovative
power but due to a monopoly over state power and years of merciless
exploitation of the working class. These resources should be possessed by the
state in the name of all its citizens so that all citizens will indirectly benefit from
them. In relation to other natural property like land, citizens are given the
right of access and proprietary rights short of ownership. No single person, be
it an individual, an association or the government, can command these
resources.93 In socialist ideology collective things are seen as the heritage of
nature and past generations, to be used for the common good by the present
generation and then to be passed on to the future generation.

5.8.3 Implications of the classification

Personal and collective (or productive) property receive different protections
at law. The property of the state, as the foundation of the social and economic
order, calls for the highest degree of protection. For example, of the property
in private (individual) ownership, only the property of working peasants and

9°
Kazimierz Grzybowski, "Reform of Civil Law in Hungary, Poland and Soviet Union", 10
Am J. Comp. L. 2533 (1961) at 260.
91
Ibid., at 262.
92
Ibid.
93
Ibid.
artisans enjoys the protection of the state. The motivation behind the varying
degree of protection is to ensure that private property does not prejudice
public interest. The special protection accorded socialist property is primarily
reflected in the fact that the law makes it impossible to transfer the ownership
of objects of socialist ownership. The transfer of property from one form of
socialist ownership to another has little legal significance as the property
always remains in the hands of the state, private persons "merely exercise the
right of ownership vested in the state in their own name with regard to assets
in their management".94
The state then is the sole owner of all state property, regardless of what it is or
who manages or uses it. State organizations exercise, within the limits
established by law, only the rights of possession, use, and disposal of state
property in accordance with the aims and purpose of the property. State
property is not subject to attachment by creditors. Only raw materials, fuels
and other property included in the working capital of state organization- are
subject to execution.95 State property is not open to prescription. While
persons may by takingpossession, acquire ownership of personal property that
has no owner, but they cannot so acquire state property.96
Countries including Ethiopia that have adhered to Marxist doctrine in the past
recognize the distinction between personal and productive assets. In those
countries, the use of the term 'private things' was deliberately avoided as it
was said to carry with it the connotation of unbridled accumulation of private
holdings. The provisions of the PORE Constitution (1987) dealing with property
were a verbatim copy of Articles 10-18 of the Soviet Constitution of 1977.
They merely restated the laws regarding ownership that had been passed since
1974. They were reflected in property law passed until 1986.97 Articles 12-18
of the PDRE Constitution provided that:
The forms of ownership of the means of production are socialist, that
is, state and cooperative ownership, private ownership and other
forms of ownership as determined by law. State ownership is public
ownership. The Ethiopian State shall, through the ownership of key
production, distribution and service enterprises, play the leading role
in the economy. Natural resources, in particular land, minerals,

94
Ibid.
95
Ibid.
96
Ibid.
97
The term 'collective ownership' is not used consistently in Ethiopian statutes. The
terms collective ownership, public ownership, government ownership and state
ownership are used interchangeably.

110
 water and forest, are state property. Private ownership shall, guided
by state policy, carry out activities beneficial to the national
economy. The right to transfer private ownership in accordance with
the law is guaranteed. Personal property is protected by law. The
right to transfer personal property in accordance with the law is
guaranteed. The state may, where public interest so requires,
requisition by making appropriate payment, or nationalize upon
payment of compensation, any property in accordance with the law.
Labor is an honorable source of wealth and well being of the society.
The social standing of any person shall be determined by his work.
When read together with other proclamations regulating the ownership of the
means of production,98 these constitutional prescriptions virtually abolished
private ownership of property except in the trivialized sense of the term.99 As
the above quotation indicates, the mechanism of constant nationalization was
built into the law to enable the state to nip any sign of increase in the size of
personal assets in the bud.

5.9 Collective things versus common things,' jointly owned

property versus things in the public domain of the state
A description of things analogous to, yet different from collective things is
needed. Collectively owned things are different from common things though
there are many similarities. Common things also called universal things (e.g.
the Sun, the Moon, the atmospheric air and the high seas) cannot be owned by
any entity even by the state in their entirety though that may be possible as a
matter of theory. Common things are described as:
...those which do not belong to any body and which may be used by
all, e.g., the air, the sea, the river water, the solar heat. They are so

98
See Public Ownership of Rural Lands Proclamation No 31/1975, Neg. Gaz. Year 34 No
26; and Government Ownership of Urban Lands and Extra Houses Proclamation No
47/1975, Neg. Gaz. Year 34, No 41.
99
Farmers could have usage rights over a plot of farmland the size of which was limited
by legislation and practice. Urban dwellers could not own more than one dwelling
house. When they elected to sell their house the state had a preemption right.
Small businesses were permitted only during the so called transitional period and
even then a capital ceiling was put in place. This approach was similar to that taken
by the Soviet property law which abolished private property in principle and
recognized small ownership in contrast with the Bulgarian property law approach
which did permit private ownership in principle but prohibited large scale
ownership. See N. Dolapchiev, "Law and Human Rights in Bulgaria", 29:1
International Affairs (1953) at 65.

111
 abundant, that every one may take of them what he needs without
depriving anybody else.'°°
These are things available to all mankind whether such resources seen as, by
writers of religious inclination, to the workmanship of God or taken as gift of
nature as claimed by writers of secular orientation.
There are several commonalities between collective things and things in the
public domain of the state. Both are controlled by the state indefinitely. Both
are held and managed by the state in the name of the entire nation in order to
avoid conflict of the wills of the multitude and high transaction costs. The
state deploys both for the betterment of its citizens. Citizens are entitled
without distinction to benefit either directly or indirectly from such resources.
Moreover, in both cases one is not expected to buy her way in, for
membership is open and free. The essential commonalities between collective
assets and things in the public domain are understood if two questions are
posed: who is entitled to have beneficial interests in such resources (all
citizens) and in whom the power to make decisions regarding the same is
vested (state authorities)?
Some scholars confuse collective things with things in the public domain. For
example, a distinguished property treatise writer said:
...there is a common usage of collectively owned thing or there is a
complete dedication of it to the general service, which in many cases
can be had without any contact with the thing used; it is thus the
entire nation that derives an advantage from its battleships and its
forts, although the citizens themselves, individually, make no use of
them and are not in possession of them and many have not even
seen them ... '°'
However collective things and things in the public domain differ in important
respects. While this quotation might apply to things in the public domain of

'°° Op. cit Aubry and Rau, Droit Civil Francais, at 45-46.
'°' As quoted in Op. cit. Planiol, at 800-801, another writer, M. Ducrocq made a similar
confusion in writing: "If the citizens were the owners of the national or communal
property, they would be entitled to ask for its partition, for they would be the
owners of undivided property and nobody can be forced to remain in in-
division—the result would be the spoliation of future generation and the
destruction of the domain of the state in favor of the generation of then living. If
the citizens cannot sue for partition, It is not because the national property is
owned by a fictitious person, who would be a fantastic person, but it is because
there are two ways of being owner. And collective ownership lasts a& long as its
dedication to the collectivity does not entail partition".

112
the state, it does not necessarily apply to collectively owned resources,
because individual citizens have the opportunity to directly enjoy collectively
owned property. For example, in Ethiopia, both urban and rural lands are
collectively owned but, for instance, plots of land are allotted to each farmer
who has exclusive possession of his plot.

Additionally one can imagine a thing in the public domain (e.g. an antiquity,
perhaps a shield), in the possession of a private person. That person's
ownership right is limited by virtue of the character of the thing she possessed.
Technically speaking, heritage properties held by mosques and churches are
within private domain as these institutions are not part of the state and are
established and sustained by private initiatives. But, for all practical purposes,
those items of cultural heritage property held by mosques and churches in
Ethiopia are part of the public domain. In the case of collective assets, they are
held by the state (or at least by association of persons mandated by the state)
to manage a given resource to the common good.
Finally collective ownership is often, if not always, ideologically motivated.
Collective assets, as history witnesses, usually result from nationalization. On
the other hand, things in the public domain of the state can coexist easily with
notions of private property and are not necessarily created by
nationalization.102 It is not possible or feasible or desirable to individualize and
confer exclusive possession on individuals in respect of at least some of the
things in the public domain. Yet, physical apportionment in order to bestow
exclusive property rights on individuals in respect of a collective asset (e.g.
land) may be seen as possible or feasible and even desirable, at least from the
perspective of some people.
Collectively owned things are not the same as jointly owned things which have
not been divided. Individuals who collectively own a thing cannot claim a
share of the thing. An individual, even if she is considered to be an owner,
cannot exercise the rights attached to owneiship. On the other hand, joint
owners each own a share of the property held jointly and can request division
or sale and division of the proceeds.103 Things owned collectively are not
intended to become the subject matter of private ownership.104

102
Articles 1444-1458 of the Code were not affected by the laws passed by the military
government of Ethiopia. See Admasu Tesema, The Nature of Public Property in Pre-
and Post-Revolutionary Ethiopia, Addis Ababa University, Faculty of Law:
unpublished LLB. Thesis, 1990).
103
Op. cit. Planiol.
104
Ibid.

113
5.10 Ordinary movables and special movables
The same procedure of transfer does not apply to all kinds of movables. And
not all movables are subject to the law of possession in good faith. Thus, a
distinction among movables is necessary to identify the proper rules of transfer
and acquisition of ownership. See Chapter 8 for a detailed discussion on this
sub-classification.

5.11 Conclusion
The argument advanced in this chapter is that the primary classification of
goods under the Code is complemented by additional subsidiary classifications
of goods which are found in different parts of Book Ill of the Code and other
laws. It is necessary to understand these subsidiary classifications to properly
understand the property law of Ethiopia. The objects of property law are
corporeal and incorporeal things. Whether a thing is consumable is relevant
consideration under the law of usufruct and of loan. Whether something is
fungible or not is an important consideration under the law of possession,
accession and contract. The ability to divide property matters under the law of
joint ownership and of matrimonial property. It is important to know whether
a movable is an ordinary or special movable. It is also vital to know which
property can be the subject of private ownership. Particularly in the Ethiopian
context it is fundamentally important to know which property is private
domain and public domain state property. In short, the subsidiary divisions are
not meant to replace but to augment the dominant categorization of things by
the Code into movables and immovables.

5.12 Review questions

1. Do market places fall within the public domain of the state under the
Ethiopian property law? Explain your position.
2. Presently land in Ethiopia is a property in the public domain of the state.
Do you agree? Why? Why not?
3. Things in the public domain are unsusceptible of private ownership.
Comment.
4. "Nothing (no subject matter) on this earth is unsusceptible of private
ownership. It is the desire of man, as expressed through law, which
designates certain things as public, not their inherent character".105
Comment.

105
Ibid.

114
 5. Argue for or against each of the following assertions. Property in public
domain: (a) is inalienable under any circumstances, (b) Is featured by its
accessibility to the public, (c) Is necessarily be held by the government, (d)
may be in possession of private citizens, (e) may be tangible or intangible,
and (f) is regulated both by public law and private law.
6. Show the relevance of the following distinctions; indicate also the
criterion used to classify each of the following sub-classifcations of
property: (a) corporeal and incorporeal property, consumable and non-
consumable property, fungible and non-fungible property, divisible and
indivisible property, principals and their fruits, personal/ collective and
common property.

List of Authorities
Admasu Tesema, The Nature of Public Property in Pre-and Post-Revolutionary
Ethiopia, (, Addis Ababa University, Faculty of Law: unpublished LL.B. Thesis,
1990).
Aubry, Charles and Rau, Charles. DroIt Civil Francais, Vol. II, 7" ed. (An English
Translation by the Louisiana Law-Institute), (St. Paul Minn: West Publishing Co.,
1966).
Bilillign Mandefro, Revised Unauthorized Unofficial Translation of Arts. 1126-
1674 of Book Ill of the Ethiopian Civil Code (1960) From the French Original
Draft (Addis Ababa University, Law Library Archive) (1973-1975).
Dolapchiev, N. "Law and Human Rights in Bulgaria", 29:1 International Affairs
(1953).
Grzybowski, Kazimierz. "Reform of Civil Law in Hungary, Poland and Soviet
Union", 10Am .J. Comp. L. 2533(1961).
Minogue, Kenneth R. "The Concept of Property and Its Contemporary
Significance" in Elizabeth Mensch and Alan Freeman (eds), The International
Library of Essays in Law and Legal Theory Areas: Vol 1 Property Law Law (USA,
Ashgate Dartmouth, 1992).
Planiol, Marcel. Treatise on the Civil Law, Vol. 1. Part II 12'Ed. (Translated by
the Louisiana State Law Institute) (St. Paul; West Publishing Co; 1939).
Yiannopoulos, A.N. "Introduction to the Law of Things: Louisiana and
Comparative Law", 22 Louisiana Law Review 756 (1961-1962).
Yiannopoulos, A.N. "Common, Public, and Private Things in Louisiana: Civilian
Tradition and Modern Practice", 21 La. L. Rev. 697 (1960-1961).

115
 Chapter 6: Possession

6.1 Introduction
Much ink has been spilt on the exposition of the concept of possession, yet the
notion of possession remains as ambiguous and as complex as it used to be!
However, this should not detract one from attempting to explain various
aspects of the law of possession.
The possession of things is essential for the survival of human beings;2 people
need things to survive. This instrument for survival, possession, may, in
general terms, be characterized as recognition of a relationship between
persons where one has taken active dominion (control) over a thing and is
protected in her enjoyment of it unless another person has shown to the
contrary.3
People interact with property in different capacities. Not all of which result in
possession. Sometimes people are mere custodians of things as, for example,
when people, in the course of shopping, try on clothes in the presence of a
shopkeeper. Sometimes people hold and control property for others. In some
cases people are the sole owners of things. In some cases people control
property on their own behalf and on behalf of others. The law itself may deem
a person in possession of property she does not in fact control, or deny her
possession of property within her control.4 These latter situations will be
explained with an illustration in due course in this chapter.
The current chapter is set out to explore the following and other subsidiary
issues. Which of these situations constitute possession in the context of the
Code? Over which subject matter may possession be established?. What
justifies possession? How is possession transferred and acquired? How is
- possession protected and lost? What are the legal consequences of
possession?

1
See A. E. S. Tay, "The Concept of Possession in the Common Law: Foundations for a
New Approach", 4 MeIb. U. L. Rev. 476 (1963-1964) at 476-477; see G. W. Paton,
"Possession", I Res Judicatae 187 (1935-1938) at 187; and also Albert S. Thayer,
'Possession', 18 Harv. L Rev. 196 (1904-1905) at 212.
2
Ibid.
Ibid.
Op. cit., Paton, "Possession".

116.
6.2 Defining possession
The classical analysis of property law, having its roots in Roman law, holds that
possession requires corpus (cgnrol) and an1us (intent). Thus the claim is that
for possession to exist a person must have some degree of physical control
over a thing with an intention to maiatairf such-control. This section examines
these two elements of possession as understood in the literature, the Code
and laws of some civilian jurisdictions.

6.2.1 The corpus element

The corpus element of possession goes by different names in the literature:

dominion, occupation, physical control and de facto possession. In Ethiopia
the Code refers to it as control. Thus the term control will be used in our
discussions.
What constitutes control of a thing? Article 1140 of the Code provides that
"[p]ossession consists in the actual control which a, person exercises, over a
thing". The degree of control one exercises over an object is reItive. If a
person has coins or documents in her wcket, one can say such coins or
documents are under her control because she has the coins and the
documents with her and on "her person. If a person possesses a monkey and
keeps it in a cage and the cage is miles away at this moment, the monkey may
still be under her control. If a person owns a plot of land in a community
thousands of miles away from where he ordinarily resides, he or she may still
be in control of such plot. It is not necessary then for a person to be physically
present together with the property to control it. When a person hires. a safety
deposit box from a bank, the delivery of the key by the banker gives control
over the safe as well as the valuables therein. It is impossible to have physical
control over intangible things like copyrights but one can possess such things.
The law expects the person who claims to possess an incorporeal good to
demonstrate control over it by for example a continuous exercise of the rights
over such intangibles.5 Thus, the type or degree of control a person is
expected to command over a subject matter depends on several factors, chief
among them include the size of the subject matter, the value of the subject,
the risks attendants to loss of cántrol, and the custom of the community." In
this regard, Paton said:
Even where possession is regarded purely as a matter of fact, the
question as to the measure of actual control that is necessary is
one that depends partly--on the legal rules in force, partly on what

5
Op. cit., Aubry and Rau, Droit Civil Francois, at 82-84.
6
Op. cit., Thayer, "Possession", at 197.

117
 is usually sufficient in that community to indicate a possession that
others will respect. Hence follows a seeming paradox. Occupation
or control is a matter of fact, and cannot of itself be dependent on
matter of law. But it may depend on the opinion of certain persons
for the time being, or the current opinion of a multitude or a
neighbourhood concerning that which is ultimately a matter of law.
Though law cannot alter facts, or directly confer physical power,
the reputation of legal right may make a great difference to the
extent of a man's power in fact
Thus, relativity characterizes the control element of possession.
The law expects a person who has control of a thing to accomplish, in person
or through others, physical acts. In the case of a plot of land these would
include using it, enjoying its fruits, changing its form by building upon it, cutting
the timber and clearing itA It is to be noted however that legal acts are not an
element of the corpus; without doubt the owner may perform these legal acts,
whether they are of administration or of alienation? A person who does not
possess, for example, a non-possessor owner, can equally carry out these legal
acts. Thus, in order to lease or sell a thing, one does not have to possess it.10
The Code, under Article 1140, uses the phrase "actual control". The French
version of the article uses the term 'effective' in lieu of the term 'actual'.11 In
the literature one may find words like de facto possession, mere possession,
active possession, domination and real possession. these words we are
given to understand that physical control over a thing should be active or
effective or real. These qualifiers have two messages. One is that the control
should not be simply hypothetical; it must be reaL. If a person is in actual
control of a tract of land, they should have the ability to carry on certain
activities such as access the land, till the land and reap the fruits thereof. Yet,
actual control doss not require that the person in control maintain continuous
physical contact oc-proximity to the subject matter. The other message of the
requirement that control be actual connotes the need for the existence of
some degree of mental awareness because it is difficult to envisage exercise of
real as opposed to hypothetical control over a thing without the subject being
aware of it.

Op. cit., Paton, "Possession", at 194-195.

Op. cit. Aubry and Rau, Droit Civil Francais.
Ibid.
° Ibid.
11
See Article 1140 of the Code in op. cit. Billilegn Mandefro, Unofficial Translation.
12
Op. cit., Thayer, "Possession", at 201-212.
1l
Article 1141 of the Code, which states "[t]he possessor may exercise his control
over a thing directly or through a third party who holds such thing", raises the
issue of direct and indirect possession. The actual control a person has over
things does not have to be direct and personal. This article allows a person to
have control over a thing through other persons. One can have control over a
thing through her servant, employee or agent. The servant, the employee and
the agent, are third parties who control property in their master'.s name and
for his benefit, not in their names and for their benefits. These third parties
hold, but they do not possess, the property. The recognition that one
possesses a thing while using or employing others to control it has two
implications: (1)that the intention to control is central to the definition of
possession and (2) that the law is interested in according possessioq.o persons
who drive economic interest from a thing.
Possession may be characterized in accordance with who has physical control
of the property as direct possession also called immediate possession and
13
indirect possession, also referred to as mediate possession. In the case of
direct possession, the person having the intention to possess also has physical
114
control of the property. Thus, a person who is in the actual control of the
15
thing would be a direct pèssor unless she is a detentor. (A detentor Ns a
person who exercises control over a thing for another by reason otThè position
she occupies in her household or business or when such person is subject to
-16
the instruction of another person in relation to the thing. An example of
direct possession is when the owner of a motorcycle is riding it.

the case of indirect possession, the corpus and the animus are disintegrated.
The indirect possessor is one who, while not in actual control of the thing, is
entitled by virtue of some relationship to one exerting actual control to
eventually recover control over it.17 Indirect possession arises when possession
is exercised over the same thing by different possessors in different manner as
in the case of a bailment. In bailment the bailor (typically the owner of the
property) gives the property to the bailee for a particular purpose, with an
expectation the property or proceeds from its disposition will be returned to
the bailor. While the property is in the possession of the bailee the bailee is
responsible for its preservation. There are three categories of indirect
possession. First there are situations where a person holds possession of a

13
Op cit. Salmond Jurisprudence at 282-286.
14

16
Ibid. (L
'7 lbid. r
119
thing lel for another person.13 For example, all employees and agents are
assum o hold property acquired in the course of their employment or
agency for the exclusive benefit of their employers and principais. 9 Secdndv
there are instances where a person holds direct possession of a thing and
claims it for herself until sometime has elpsea or some condition ha.s-ben
met, but who acknowledges the title of another ror whom she holds the thing,
and to whom she is prepared to deliver it when her own temporary claim has
come to an end. Examples of this type of indirect possession include a
borrower for a fixed time and a pledgee.2u Finally, there are cases where the
direct possessor holds both for someone else's account and on her own, but
who recognizes the other has a right to demand direct possession at any time.
An example of this type of indirect possession is a person who borrows a too
from another on the understanding that they might keep it until its return is
.2I
requested
Articles 1141 and 1147 of the Code both refer to those who possess property
for another as mere holders. Article 1147/1 provides: "Unless the contrary is
proved, he who began to possess on behalf of another person shall be.
regarded as a mere holder". Under these provisions, does the other person,
the indirect possessor, meet the two elements of possession: the corpus and
the animus? Assuming that the Code is inspired by the German approach to
defining possession, the corpus is with the mere holder who controls for the
indirect possessor; the indirect possessor controls her thing through the
intermediary of the mere holder. However, the law treats the indirect
possessor as if she was actually anphysicaiFy controlling the thing which, as a
matter of fact, is under theconfi of the mere holder.
The inect possessor is presumed to have the intention to control the thing.
How can we assume that the indirect possessor has the reqJisite animus? The
answer lies in the legal relationship the indirect possessor has with the holder.
Mere holders always have some legal relationship with the indirect possessor.
The legal relation may be established by court order (e.g., administrator), the
operation of law. (e.g., .tutor), contract (e.g., agent) or testament (e.g.,
liquidator). The legal relationship creates a presumption that the holder holds
the thing for another. Should the holder wish to claim a greater right it is
incumbent on him or her to prove it. A change in the intention of the holder is
not enough.22 It cannot arise from a mere negation of the true possessor's

Ibid.
IS
Ibid.
20
Ibid.
21
Ibid-
22
See Article 1147/3 of the Code

120
right, it must be backed by judicial or extrajudicial actions.2' Examples of the
kind of facts that may be asserted in support of a claim of possession include:
the existence of a contract for the use (contract of letting) of the thing with
the original possessor,24 that the holder publicly declared in the presence of
other persons that she is the owner of the thing, that the holder carried on acts
of demolition and building upon the thing, that the holder refused to restore
the thing to the owner, that the holder used force to prevent the owner from
retaking the thing, or that the holder refused to pay rent by saying she is the
owner or by notifying the owner in writing that she will not pay rent.
Classifying possession into direct and indirect possession meanjpsibIe
for two qr, more persons to possess the same thing at the same time. This
purposes. In those cases it could be argued that the
intention to profit from the thing has replaced the intention to exclude
others.25 The law wishes to call she who is entitled to derive an economic
interest in a given thing at a given point in time a possessor. Srdly the
direct possessor,.who has but temporary control over the thing has the right to
exclude everyone from possession, whereas the, mediatepossessor having
given up possession of the thing to the directo sorNcan exclude everyone
but the direct possessor from possession. I is important to note that direct
and indirect possession can only be explainjdby ference to the concept of
relative possession, 26 which envisages the ossibility of multiple people
possessing the same thing at the same time. The concept of absolute
possession does not admit this can occur. If one opted for absolute possession,
two absolute possessions would destroy each other since they tend to
mutually exclude each other.27 As we shall see below, the Code recognizes
relative possession, i.e., the possibility of a given thing being under the control
of several persons at the same time.
Can the scope of control of property go beyond material objects to include
immaterial ones? In the civil law tradition, the development of the objects of
possession has been removed from the domain of material objects to include
.
real rights and then its extension to other rights 28 Roman law formally
prescribed that only material things could be possessed.29 Roman jurists,

23
Ibid. See also Paton, TextBook, at 529-534.
24 See Article 2698.
25
K.W. Ryan, An Introduction to The Civil Law, (Australia, The Law Book Co. Of
Australasia PTY LTD., 1962) at 150-151
26
Op. cit. Salmond.
27
Ibid.
28
Op. cit., Ryan, at 152.
29
Ibid.

121
however, recognized possession of rights such as servitude and usufruct. They
described possession of such rights as quasi-possession.30 Even today the
German Civil Code provides that possession applies only to material things and
not to rights, although such Code accords similar legal protections to those
.3
given to possession where certain rights are disturbed ' The French law,
however, provides for the possibility of possession of rights because
possession is defined in the French Civil Code as the detention or the
32
enjoyment of a thing or the enjoyment of a right. In French law, the rights
over which possession can be exercised may be connected with material
objects (e.g., right of way, access to light, usufruct, mortgage) or may not be
linked to material things at all (such as trademark, patent, copyright and
generally intellectual property.)

The concept of possession in Ethiopian law covers both tangible and intangible
things. That this is the case is evidenced by Article 1140 which uses the term
"thing". As we have discussed the term thing, when seen in light of Article
1126, should be construed to cover corporeal and incorporeal things.33 Hence,
under the Code, the scope of the subject matter of possession extends to
tangible things and intangible things. The intangible things over which control
is established may or may not have connection with material things.
Possession of intangible things such as copyright and servitude involves the
continuing exercise of a claim to the exclusive use of it.34 One implication of
stretching the subject matter of the law of possession to intangible things is
that the possessor of such rights can avail herself of the remedies available
through possessory action, not including use of force, though.

6.2.2 The animus element

The discussions about actual control and the permissibility of direct and
indirect possession have implied the need for the intent element in the
definition of possession. There are various theories about the nature of the
intent element of possession. What follows is a discussion of three of those
theories: the subjective theory, the objective theory and the realist theory
followed by an inquiry into which theory guides the Ethiopian Code on this
topic.

° Ibid.
31
Ibid.
32
Ibid.
33
For an interpretation of the term "a thing" in the Code see the discussions in
Chapter 3 of this text.
34
Op. cit. Salmond, at 291-292.

122
 H v4_/!_ -3
'\
62.2.1 The subjective theory (

To Savigny, who has developed this theory, possession exists when a person
has animus domini, that is, the intention to exert dominion over the object, to
exclude all other persons in the world. Animus domini means that for a
possessor to exercise the real rights attached to the fact of possession, she
must not only have physical detention of the thing, but also the intention to
keep it as her own in the form of ownership.35 Savigny's theory is known in
civilian literature as the subjective theory of possession because of its reliance
on the determination of a person's subjective intention to own a thing.
Savigny contrasts animus domini with animus detinendi. Animus detinendi is
the intention to detain a thing on behalf of another person (yiho has the intent
to own and qualifies as possessor).36 Thus, pledgees, usufructuaries, bailees,
borrowers, servants, liquidators, administrators, servants, lessees, curators,
employees, agents, tutors and carriers are not taken as possessors because
they do not hold for themselves and as owners. French law, which subscribes
to the subjective theory of possession, calls these persons precarious
possessors.37 What these people lack is the intent to possess the thing on their
own account indefinitely; they accept the missions by law or by court or by
.3
virtue of a contract to restore the thing to the true possessor " They hold the
property in the name and on account of another person with a superior right.39

If one follows the subjective theory, it is not possible for two or more persons
to possess the same thing at the same time (with the exception of the case of
joint ownership). The subjective theory of possession emphasizes intention.
When the çQrpus and the animus do exist together then that is an ideal
circumstance for the existence of possession. Where the corpus and animus
are located in different persons, one should give greater emphasis to the
mental elementn determining who is in possession. The requisite mental
element is the wish to possess a thing for oneself as owner. For the subjective
theory of possession, animus is not presumed. The one who claims the benefit

35 Oliver Wendell Holmes, "Lecture VI. Possession",

http://biotech.law.lsu.edu/books/holmes/claw07a.htm (accessed Julv 6, 2010).
36
"Concepts and Remedies in the Law of ssession", 8 Edin . P. 267 (2004),
at 267.
37
Ibid. at 268.
38

39
r
123
. /
 .
of the intention bears the burden of proving intention 40 The subjective theory
of possession restricts the animus element to ownership. This theory seems to
rule out the possibility of calling a person who merely intends to use but not to
own a thing under her control a possessor.41

6.2.2.2 The objective theory

Rudolf von ihering challenged Savigny's conception of possession as too
subjective and narrow.42 ihering also questions how the subjective theorists
may explain the case where legal systems such as the Roman law give
possession to those who control someone's property (e.g., a pledge).43 To
Jhering, as the case for the Roman jurists, the critical factor should be the
intention to possess.

' 7 ihering sought to demonstrate that the subjective intent of the person who
has physical control over a thing is implicit in his factual authority, but it is not
determinative for the qualification of that authority as possession. iherings's
theory is known as the objective theory of possession, because any intentional
exercise of physical control over a thing is possession.

ihering distinguished between possession and detention, but he did not

ground the distinction on the presence or absence of the intent to own the
thing. Acorrding to ihering, a person has detention rather than possession
when the causa possessionis (the "cause of possession") is of a nature that
Implies exercise of physical control over a thing on behalf of another person.
When this happens there can be no possession in the proper sense of the
44
word, and the causa possessionis becomes a causa detentionis.
Other authorities appear to follow ihering in defining possession as a factual
:45
control over a thing for one's self, to the exclusion of others. Tay writes
The crucial thing here is the emphasis on power and control. Possession is
not mere physical detention—such detention in pristine form rarely
confronts the law (people do not keep their belongings chained to their
wrists); such detention readily shades off into forms of control ('detaining'
in one's house or one's office for instance) and is practically useless as a
fundamental concept on which to build a structure of rights and duties.
Possession, one might say, is the present physical power to use, enjoy or

° Ibid.
41
Ibid at 267.
42
Op cit, Ryan, at 149.
43
Henry Bond, "Possession in the Roman Law", 6 L. Q. Rev. 259 (1890) at 273.
" A. N. Yiannopoulos, "Possession", 51 Louisiana L. R. 523 (1991), at 525.
45
Op cit., Tay, at 490.

124
ideal with a thing, on one's own behalf and to the exclusion of all others.
his definition ... comes close to accuracy, but misses one vital element:
the requirement that a man should not only have the power, but should
also will and intend it. The addition of the element of will and intent
converts power into control, interpreted as a conscious, deliberate
relation--a relation that requires us to know what we are doing in the same
way as truly counting or speaking a language requires us to know what we
are doing; a parrot can do neither. Our definition of possession, as
fundamental and general concept in the law, thus becomes: Possession is
the present control of a thing, on one's own behalf and to the exclusion of
all others.
This variant of the objective theory of possession, as articulated by Tay,
emphasizes the fact of control .46Under the objective theory, control of a thing
by a subject leads to an inference of animus. If X can prove that she is in
control of a thing, it is presumed that she is the possessor of such thing. This
presumption is rebuttable. In the objective theory, if A brings a possessory
action, claiming that she is dispossessed by B (who has control over the thing),
the only matter which A would be required to prove is the fact that B has held
the thing in controversy for A under a lease, or by A's permission, but the
.47
question of the animus with which B has held would not be in issue

According to ihering, Roman jurists defined the concept of possession as an

intention to possess a physical thing, animus possidendi. To these Roman
juritst, animus possidendi implied two essential elements: the corpus and the
animus. The animus meant a general 'not a particular,' intention to possess a
physical thing. It is, to the Roman jurists, immaterial whether a person having
physical control of a material thing has the intention to hold for himself and as
an owner or whether she has the intention to hold for another. The corpus
element meant physical detention. The decisive factor was the intention to
possess even if one presently has no physical control over an object. According
to this theory, a pledgeea custodian, a borrower and a servant may have
possession in laW.48"

46
Ibid., at 491.
47
Op. cit. Ryan.
48
However, ihering notes that Roman law did not allow possession to lessees,
borrowers, pledges and bailees. The explanation for the denial of possession to this
class of people was not that they did not have the necessary control but rather that
this category of people remained substantially under the control of the lessor and
pledgor. If their enjoyment of the property was disturbed, it was the duty of the
lessor or pledgor to protect it. But as commerce progressed and as mobility of

125
 The objective theory of possession holds that possession is the exercise of
factual authority over a thing. The intent to possess as owner is not a
requirement for possession. Any one exercising factual authority over a thing
is a possessor even if she exercises it on behalf of another. Thus the categories
of persons who could be regarded as having possession in law are wider than
under the subjective theory. The objective theory permits the existence of
direct and indirect possession, that is, several person possessing the same
CV thing at the same time. The objective theory of possession tends to accept the
idea that two or more persons may have economic interest in a single thing at
qX the same time. Under this theory, since the intention to possess is presumed

from having physical control of an object, the evidentiary obstacle that may be
faced in applying the subjective theory is lessened.50

The German Code inclines to the objective theory. In Germany, the animus is a
V person's simple will to exercise upon the thing that physical power called
possession. Possession should be voluntarily exercised over a thing.51 From
that physical power, the intent to control is presumed.52

6.2.2.3 Realist theory

As the preceding discussions show, the subjective and objective theories
presume that there is possession when corpus and animus exist together and
that in the absence of one or the other possession does not exist. Also seen
above is that there is consensus on the appreciation of the corpus element by
the two theories of possession and that the subjective arks on animus
while the objective theory places accent on the corpus theory
element Yet possession
once acquired' continue even though either corpus or animus or both are
lost. The realist theory of possession, also called the functional theory of
possession, depends on pragmatic considerations. The realist theory regards a
priori definition of possession as futile. The definition of possession, to this
theory, should be driven by policy and convenience. Especially, in the context
of common law, as the nature of possession comes to be shaped by the need
to give remedies, no single theory will explain possession.53 Shartel says:

people increased, denial of possession to this class of persons became manifestly

unsuitable.
49
A. S. Mathews, "The Mental Element in Possession", 79 S. African L. J. 179 (1962) at
188.
° Ibid.
51
Ibid.
52
Ibid.
53
Burke Shartel, "Meaning of Possession", 16 Minn. L.R. 611 (1932).

126
 ...there are many meanings of the word "possession"; that
possession can only be usefully defined with reference to the
purpose in hand; and that possession may have one meaning in one
54
connection and another meaning in another.
The realist theory finds, in some cases, the application of the subjective theory,
with its emphasis on animus, sounds while in other circumstances the
objective theory, with its accent on control, holds valid. The realist theory of
possession proceeds with an assumption that like an answer to any question,
the question of the role of the intent element of possession cannot be and
should not be defined in on-size-fits-all manner. In the common law context it
is said:55
The law does not always or necessarily attach the rights of
possession to physical control; and in like manner, when physical and
legal possession coincide, it does not necessarily follow that the loss
of control in fact shall involve the loss of possession in law .... The law
would be much simpler than it is if it were held that actual Control or
custody invariably- gives actual legal possession, whether the
custodian exercises control on his own account or as the servant or
otherwise on behalf of another. 1But no system of law, so far we
know, has gone that Iength....We may find it convenient that a
possessor shall not lose his rights merely by losing physical control,
and we may so mould the legal incidents of possession once
acquired that possession in law shall continue though there be but a
shadow of real or apparent physical control, or no such power at
all.56
Hence, the realist theory of possession calls for avoidance of a dogmatic
definition in favor of a malleable and context-dependent definition of
possession.

6.22.4 The Code's position

Which of the abo'Ie theories does the Code embraces? There are no
background documents articulating this issue making it difficult to answer this
question with any degree of certainty. But one can try to extrapolate an
answer from the various provisions of the Code itself. It appears that the Code

54
Ibid., at 612.
55
Fredrick Pollock and Robert Wright, An Essay on Possession in the Common Law
(Oxford: Claredon Press 1888) http://free-law-books.troy.rollo.name/possession.pdf
(accessed, July 9, 2010) at 9-10.
56
Ibid., at 612.

127
is informed by the realist theory of possession. Many instances of the
application of the realist theory can be cited from theCode.

First, the Code makes some holders, for certain ends, possessors. People such
as tutors, agents, employees, bail--es and repairers of articles control a thing
belonging to another. These people are holders because they control the thing
with the permission of and for the account of another person. The contract
pursuant to which they hold another's thing is clear that they control the thing
on behalf of another and not on their own behalf. Yet the law, under Articles
1148 and 1149, authorizes them to use force and to bring a possessory action
to recover the thing from a usurper. These holders are regarded as possessors
for the purpose of obtaining a remedy which ultimately benefits the person for
whom they hold the thing. The purpose of these provisions is ensuring they
can effectively protect the interests of the bailor, principal, minor and by using
the remedies of self-help or possessory action.57 These people may also have
some economic interest to protect on their own right. It is important to note
that for the purpose of the presumption of ownership based on possession,
holders are obviously not owners.

Second, Article 114458 of the Code states that a person becomes a possessor of
goods the moment she receives a document evidencing those goods. Suppose
Y orders certain commodities from Kenya for and in the name of X. X is to
receive the goods in four months time. In the meantime, X receives the bill of
lading representing the goods. The law says that possession of specially printed
papers describing goods is as good as taking physical control of the goods
themselves. The literal application of both the subjective and objective
theories of possession will not confer possession on X because X does not have
control, in the physical sense of the term, over the goods even if it might be
said that she has the intent to hold them in her name and to be an owner. This
article is just a commercial policy device. The law wants the capital invested in
the goods to be in the market even if the actual commodities have not arrived

' Op. cit. Caterina, at 270-271 where it is said: "On a practical plane, it is not difficult
to understand why all the legal systems mentioned also give the remedy to mere
holders. This is advantageous to holders, but also to owners, who are spared the
need to intervene in the defense of holders (who are usually in the best position to
act, while owners may be absent). If the remedy is not available to holders this is
advantageous only to the wrongdoers".
58
This Article entitled "Documents representing the thing" reads: (1) Possession may
be transferred to a new possessor by the delivery of the documents representing
the thing and enabling him to dispose ihereof. (2) Where a dispute arises between
the holder of the documents and the person who has the actual possession of the
thing, the latter shall be preferred unless his bad faith can be proved.

128
X's place. The law wishes to enable X to deal with the thing represented by the
bill of lading, just a special kind of commercial paper, well before X actually
receives the goods.
Third, one can infer from Article I14 of the Code an instance showing the
adoption of a contextual definition-6f possession in the Code.59 Sub-article
1145/1 deems possession to be transferred to a new possessor where the
person who exercises actual control over the thing declares that she shall
henceforth detain it on behalf of the new possessor. However, in Article
1145/2, it is provided that possession to the new possessor is not considered
transferred when the old possessor goes bankrupt. In the event of bankruptcy,
the original possessor is deemed to retain possession of those goods remaining
in his actual possession and control.

An example can clarify the matter. X is a dealer in grains. She sells four
quintals of maize to Y. V has asked X to keep the maize for her for four weeks.
After the conclusion of the-contract of sale, X has individualized the four
quintals of maize and put them separately for Y. Article 1145/1 provides that
possession has been transferred to Y and that so far as the maize sold to Y is
concerned the grain dealer, X, is transformed into a merc9stodian. In other
words, Y has come to meet the two requirements of possession as per the
subjective and objective theories-corpus and animus.' If X goes bankrupt6°
before Y collects the maize, Article 1145/2 considers the possession and thus
ownership of the maize n question as never to have been transferred to V.
This provision assumes that X never parted witl possession of the maize sold
to V. The law here presumes that X is trying to evade the principle enshrined in
Article 1988/1, which provides that the assets of a debtor are the common
security of her creditors. This example shows that the law sometimes may
deprive a person of possession even if such person has fulfilled the intent and
corpus element of possession.

Fourth, the Code adopts the test of control with the intent to be an owner to
determine possession in relation to occupation, possession in good faith and

59
This Article entitled "Constructive possession" reads: (1) The possession of things
which are certain and things pertaining to a generic species which have been
individualized shall be deemed to be transferred to the new possessor where the
person who exercises actual control over the thing declares that he shall henceforth
detain it on behalf of the new possessor. (2) Nothing in this Article shall affect the
rights of the creditors of the person exercising aEiFbntrol over the thing in the
event of his bankruptcy.
° See Articles 969-971of the Commercial Code. Bankruptcy is a, lack of financial ability
to satisfy the claims of her creditors, which is declared by a court of appropriate
jurisdiction

129
usucaptlon.61 Usucaption accrues in favor of a possessor who possesses as
owner whereas those who control an immovable thing on account of another
person cannot benefit from Article I4BJ. Under the Code, those who occupy,
a movable thing without an owner, with intent to become its owner can obtain
ownership thereof.62 For possession in good faith to apply, taking delivery of
63
the thing bought in good faith with an intention to be its owner is required.
Intent being at the forefront, the Code adheres, in these instances, to the
subjective theory of possession.

Fifth, a reading of Articles 1140 and 1141, suggests the adoption of the
objective theory of possession. Under Article 1140, possession is the exercise
of actual control over things. There is not reference to animus in this
provision. Implicit in Article 1140 is the mental element of awareness or
knowledge for one cannot exercise actual or effective control over a thing
without her knowledge. Some degree of awareness must be therefore be
hidden in the sub-text of Article 1140. As per this provision, the person who
exercises actual control over the subject matter should not automatically be
presumed to have the intention to possess. It is not the business of the person
who carries out activities in relation to a thing to show that she has the
intention to possess; the person who disputes possession must establish the
basis of their claim. Under Article 1140, the key element is the physical control
a person exercises in respect of a thing. If the lawmaker had adopted the
subjective theory of possession, we would expect to see words like exercise
64
"control for oneself and with the intention to be an owner thereof" in the
fashion of the French Civil Code in Article 1140. Applying the objective theory,

61
See the words "to acquire the ownership of" and "relating to the ownership of" in
Article 1161/1 and Article 1168/1, respectively, of the Code.
62
Article1151 of the Code..
63
Article 1161/1 of the Code.
64
See Article 9 of the "Revised Draft Book III of the Code" (On file with the author:
Ministry of Justice of Ethiopia, undated,) which would restate Article 1140 of the
Code to include the requirements that the person control a thing in his name and to
be an owner thereof. This would be an explicit adoption of the subjective theory of
possession. Article 15 of the "Revised Draft Book III of the Code" (on file with the
author: Justice and Legal System Research Institute, unpublished, 1997 E.C) is
indecisive in adopting either the objective theory or subjective theory of possession.
Abebe Mulatu, "Possession and Possessory Action under Article 1149 of the Civil
Code", 3 Hegawinet, PDR Procurator General Professional Journal (in Amharic),
(1983 E.C) at 47-49, says it is difficult to credit the position taken in the Code on the
definition of possession to either the French or Swiss approach. The stance
Ethiopian law has taken in this connection is the German approach, which rests on
animus possidendi not animus domini.

ç 130
a person with actual control, (or effective control if we use the language in the
French version of Article 1140), may hold the thing with the intention to be an
owner or with the intention to control it for another. Her intention is irrelevant
and in either case she has possession of the thing. As explained above, the
intention to possess is the essence of the objective theory of possession and
mental element in this theory is presumed from the factual relation a person
has with a thing. Article 1140 is worded in the fashion of the German Civil
Code which has adopted the objective theory of possession.65

63 Justifications
What is the rationale behind the law of possession? There are five competing
theories on the justification for the law of possession: the public order theory,
the will theory, the ownership protection theory, the entitlement theory and
the convenience theory. Each will be discussed in order.

6.3.1 Public order theory

This theory states that the possession of property should be protected in order
to maintain societal stability. The need to accord legal protection to possession
emerges from the very purpose of the law, which is that it seeks to replace
self-help in the majority of, if not all, cases with rules and institutionalized
machinery of enforcement.66 Human nature being what it is (i.e. the tendency
to favor oneself), given scarcity of and competition for resources, without
protection men would try to take the property of others. The resultant
conflicts over property would lead to social disorder. The law of possession
helps to prevent this sort of chaos from occurring in a society. Salmond says:
...An attack on a man's possession is an attack on something which
may be essential to him, it becomes almost tantamount to an assault
on the man himself; and the possessor may well be stirred to defend
himself with force. The result is violence and disorder. In so far as
legal system aims to replace self-help and private defense by
institutional protection of rights and maintenance of order, it must
incorporate rules relating to possession.67

6.3.2 Will theory

The will theory rejects the public order theory as a primary justification for the
law of possession. The public order theory leads to the conclusion that relief is

65
Abebe Mulatu, "Article 1149".
66
Op cit., lay, at 482; and Whitecross, at 501.
67 Op. cit., Salmorid, at 265-266.

131
 given merely because public order has been disrupted and not because the
plaintiff has a protectable interest. The defect in this theory, it is argued, is
that the disruption must be found in the unlawful or disruptive way a person is
deprived of possession. However the law grants relief for loss of possession
even in cases where dispossession occurs without violence or a breach of the
peace, for example, when a person takes an others' hat by mistake. Besides, it
is hard to see why public order should be protected by a civil action, rather
than by administrative or police measures, if no one has suffered an injury to
St.
any protectabEe intere 68
In response the will theory proposes that the main reason for the protection of
69
possession is respect for the will of the possessor. Possession is a
manifestation of an individual's will to control a thing. Under the will theory,
to interfere with another'ëxèrcise of will is to interfere with her freedom or
personality, or to violate the principle that each person is the equal of every
other. The merit of this approach is that the victim is protected simply because
the act of dispossession interferes with her will, not because the act that
.70
interferes is unlawful in any other respect

c The problem with the will theory of possession is that the law of possession
does not protect people against any interference with their will. The law of
possession protects them against dispossession. If the possessor is acting
without right, the law would be protecting the will to do something wrongful.
Even if, in the abstract, the will should be protected, it is hard to see why the
will to do wrong should be. Moreover, the law is not simply protecting the will
of the possessor but settling a conflict among different people's will. By taking
an object, a dispossessor allows her will to override that of the earlier
possessor. By keeping it, the earlier possessor allows her own to override the
will of all those come later. Respect for the will does not explain why physical
possession matters. If the law was merely protecting a person's will to

68
James Gordley and Ugo Mattei. "Protecting Possession", 44 Am J. Comp. L. 293
(1996) at 296-297.
69
Op. cit. Holmes, "Possession" wherein he states: "Why is possession protected by
the. law, when the possessor is not also an owner? That is the general problem
which has much exercised the German mind.... Possession is to be protected because
a man by taking possession of an object has brought it within the sphere of his will.
He has extended his personality into or over that object. As Hegel would have said,
possession is the objective realization of free will. And by Kant's postulate, the will
of any individual thus manifested is entitled to absolute respect from every other
individual, and can only be overcome or set aside by the universal will, that is, by the
state, acting through its organs, the courts".
70
Op. cit., Gordley, at 297.

132
appropriate an object, it would protect that will however it was expressed,
whether physical possession was taken or not.7'

6.3.3 Ownership theory ,O

Proposed by iiering the ownership theory, holds that the rationale for the law
of possession is to give more effective protection to ownership. By giving
protection to possession, in effect, one is according security to ownership since
in the vast majority of cases the possessor is in control of a thing either
because she owns it herself or because the owner has confided to her control
of it. To this theory, the protection given to those who are not owners is
unavoidable consequence of or a price paid for protecting owners. The owner
does not have to prove title when dispossessed; she merely shows the
existence of possession and then her ownership is secured. Most theorists
have rejected this approach .72 It is pointed out that this theory does not
explain why a possessor is protected when she clearly is not the owner and
why she is sometimes protected even against the owner. Besides, the theory
wrongfully assumes that the person dispossessed is most often the owner. 73

6.3.4 Continuity of possession theory

Dernburg theorized that possession should be protected because it is the
factual order of society. Possession grants the individual directly the
instruments of her activity, the means for the satisfaction of her needs. He
explained that the owner and not the possessor has the right to possess. Heck
developing Dernberg's theory claimed that
...the law does not protect possession as such, but the continuity of
possession. The law recognizes" the need to protect the continuity
of the relationships in life where possible".... "Continuity is
recognized as a good without regard to whether a definite right is
present". "Everyone knows from her own experience that
adjustment to the loss of the use of a thing can lead to difficulties
and damage".
For Heck the difficulties and damage against which the possessor is protected
are not the loss of thing itself but the consequences of interrupting its
use.7 rhus the law of possession seeks to avoid the inconvenience or damage
that arises out of dispossession. Under this theory, possession is not protected

71
Ibid., at 298..
72
Op. cit., Holmes, "Possession".
73 Op. cit., Gordley, at 298-299.
74
Ibid., at 299-300.

133
as an entitlement in itself. This theory is also criticized for failing to explain
protection of a wrongdoer. As Wieling pointed out "the fact that everyone has
an interest in keeping what she possesses does not explain why we protect
.75
it

6.3.5 The entitlement theory

Pollock reasoned that possession is and should be protected because the
possessor has a protectable interest which in itself is a property right or a right
which maximizes wealth or enhances economic efficiency. Possession is a
property right for it can be assigned or inherited. Possession is worthy of
protection itself. Under this theory possession is to be protected not with the
view to advancing objectives such as the maintenance of public order,
realization of the will of a possessor, the protection of ownership or securing
continuity of possession but because it is a property right meriting protection
on its own. Pollock defined possession in law as:
When the fact of control is coupled with a legal claim and right to
exercise it in one's own name against the world at large, we have
possession in law as well as in fact. We say as against the world at
large, not as against all men without exception. For a perfectly
exclusive right to the control of anything can belong only to the
owner, or to someone invested with such right by the will of the
owner or some authority ultimately derived therefrom, or
exceptionally, by an act of the law superseding the owner's will and
his normal rights. Such a right is a matter of title.76
Pollock proposed that possessor had the same rights as the owner except the
possessor could assert those rights against everyone except the owner.
Pollock asserts:
Further, possession in law is a substantive right or interest which
exists and has legal incidents and advantages apart from the true
owner's title. Hence it is itself a kind of title, and it is a natural
development of the law, whether necessary or not, that a possessor
should be able to deal with his apparent interest in the fashion of an
owner not only by physical acts but by acts in the law, and that as
regards everyone not having a better title those acts should be
valid77.

75
Ibid., at 300.
76
Op. cit., Pollock, "An Essay on Possession", at 9.
77
Ibid, at 10.

134
In this assertion, it is argued, he went too far.
Pollock did not consider the logical consequences of that statement.
They go beyond anything he or any English court would be likely to
accept. If Pollock were right, a possessor would have a title which,
like an owner's, would not be extinguished when he abandoned the
property. Indeed, if Pollock were right, anyone who had been in
possession, even for a day, could, until the statute of limitations ran,
claim the property form any current possessor who could not trace
title flawlessly from a prior possessor. If that is English law, one
should spend one's next vacation taking brief possession of as many
English houses as possible in hopes of returning years later and
finding them occupied by someone who cannot prove title78.

6.36 Law and economics perspective

Each of the foregoing theories has significant deficiencies. At the same time,
there is something of merit in each of them. Modern writers building upon
those theories have argued that "[p]ossession is also a property right whose
protection by the legal system is simply less intense than that of ownership".79
This is the law and economics paradigm. One of the followers of this
perspective, Posner, when considering possession using a legal and economic
paradigm, says that physical aspect of possession, control, "communicates a
.80
claim" or a "right" to the world
The sound stance to adopt is that the possessor has a right to possess but her
right is not in all respects like that of an owner.81
There may be conflicts to which the owner is not a party: between a
possessor and a non-possessor, a former and a subsequent
possessor, a party dispossessed and the party who dispossessed her.
The owner may have an interest in how such conflicts are resolved.
But none of them is a conflict between the owner and a-non-owner
about the use of the property. The principle that the owner would
win if there were such a conflict does not tell us who should win if

78
Op. cit., Gordley, at 303. On the same page Pollock is quoted as saying: Possession
conferred "a right in the nature of property which is valid against every one who
cannot show a prior and better right".
79
Ugo Mattei, Basic Principles of Property Law: A Comparative Legal and Economic
Introduction (London: Greenwood Press, 2000) at 79. See also Albert S. Thayer,
"Possession and Ownership", 23 L. Q. Rev. 175 (1907).
80 . .
chard A. Posner, Savugny, Holmes, and the Law and Economics of Possession", 86
Richard
Va. L. Rev. 535 (2000) at 561.
81
Op. cit., Gordley, at 305.

135
 there were not. There is nothing contradictory, then, about
recognizing a right in the possessor, good against anyone else, to use
the property until the owner appears and asserts his own rights.82
There are two reasons for recognizing a right in the possessor:
...the possessor's use may be the best use of the property. In a
system of ownership, the owner has the right to decide its best use.
But sometimes he is not actively exercising that right. It is better for
this right to be exercised by someone else than no one at all. The
other reason is that even if the possessor's use may harm the owner,
it may causeless harm if the possessor's right is protected against
non-possessors than if it is not protected at all.
In both cases, the law is not simply protecting the possessor against
dispossession. It is protecting him so that he can benefit from his
possession. Nevertheless, there is a difference. In the first case the
possessor obtains the benefit without hurting the owner. His
possession is protected because it is better that someone should
benefit than that no one should. In the second case, the possessor is
hurting the owner. He is protected only because otherwise the harm
to the owner would be greater. His possession is protected to give
him an incentive to protect the property from others and so
minimize the harm the owner may suffer.83

6.4 Acquisition and transfer of possession

A person can acquire possession of property by delivery of the property or by
taking the property.
Taking is the acquisition of possession without the consent of the previous
possessor. The thing taken may or may not have been already in the
possession of someone else, and in either case the taking of it may be either
rightful or wrongful. Delivery, on the on the other hand, is the acquisition of
possession with the consent and co-operation of the previous possessor.
In some cases the law recognizes that possession is transferred when a person
tasgccis without the consent, or sometimes even the knowledge of the
owner or previous posessor. One case where this occurs is when a person

82
Ibid., at 331.
83
Ibid. at 332.
94
Op. cit, Salmond, at paragraph 103.

136
takes possession of movable things85 that do not have a master. The Code
recognizes a number of other circumstances when lawful possession can be
acquired by taking possession without consent. They will be discussed later in
the context of our discussions of acquisition of ownership by possession in
good faith86 and usucaption.87 It suffices here to say that upon the fulfillment
of certain conditions laid down by the law, a person can acquire possession of
both movable and immovable things in this way.
More commonly possession is obtained by delivery. Delivery ordinarily means
the physical handing over by one person of a thing, its accessories and intrinsic
elements to another person.88 Delivery is the transfer of possession with the
consent and cooperation of the previous possessor. Buyers, borrowers,
lessees, usufructuaries, pledgees and done& get possession in this manner.
Depending on the size and the nature of the object to be delivered, physical
delivery may entail merely handing over items enabling control over the object
such as a key to a room leased to the lessee. What is important is that
whatever is delivered it enables the other person to have effective control over
the object involved in the transaction.
Delivery can be divided up into actual delivery and constructive delivery.
Actual delivery involves the physical handing over of the thing from the
previous possessor to the new possessor whereas constructive delivery does
not.
There are two types of actual delivery. The first is the situation where a thing
is handed over without any reservation of indirect possession, (e.g. sale
followed by delivery of its subject matter). The second concerns delivery of the
object by way of loan or deposit with a reservation of indirect possession upon
the transfer of direct possession.89 ThCpde specifies ways possession can be
transferred by actual delivery. The most common way is through contract.
Article 1143 addresses the most common mechanism of transfEontract. It
states that "Any transfer•ofpossessjon made hue of a contract shall be
effective at the time when the thingis1ivered." Here the flow of possession
from one person to another in respect of a thing is achieved when two
conditions exist together: a contract and1ivery of the thing. Contract should

85
See Article 114f the Code, which ruled out the possibility of having immovables
withouta master in Ethi9pia even prior to the nationalization of rural and urban
land.
86
Ibid.
87
Articles 1151-1168 of the Code.
See Article 2274 of the Code.
89
Op. cit., Salmond, at 288-289.

137
 be understood, for the purpose of this provision, to mean any bilateral juridical
act intending to transfer possession of property. The contract should be
followed by delivery.

In constructive delivery, the object is not physically handed from one person
over to another but there are interactions between the parties that manifest
the intention to transfer possession. One type of constructive possession is
called, traditlo brevi manu. It requires the surrender of1i.ectpossession of a
thing to a person who is already in direct possession Wit. lisTould occur if
you lent a watch to your neighbor and then later decided to give it to him.
While it was lent you retained indirect possession, upon gifting you give up any
(j intent to control or possess the watch, and the delivery is effected by telling
him he may keep it as a gift.
Another type of constructive possession is called attorment. It relates to the
case of transfer of inçirect pssjon the direct possession remains
outstanding in some third person.91 Assume X has goods in warehouse of X
sells them to Z, and subsequently V agrees to hold them on account of Z. The
sale and agreement of Y to hold the goods for Z are sufficient to transfer
possession although nothing has actually changed in regards to the
circumstances of the property and the goods have throughout remained in the
direct possession of Y. Y has attorned to possession by Z. .
Still another variety of constructive possession is constitutivpossessoriurn (an
agreement touching possession). Given recoiition in Article 114.5, 9'
constitutive possessorium, turns a direct possessor to a mere holder on behalf
of the new possessor. Suppose, as an illustration; X is a warehouse woman and
Y buys fungible goods from her. They agree that she will continue to hold them
for Y until he can take actual delivery of them. The goods remain under X's
custody but possession in them has been transferred to V. Under Artkle 1145
both certain and fungible things may be constructively pôessed. Theiiide
requires a contract naming a new possessor (i.e., sale or donation or usufruct),
identification of the goods transferred (individualization in the case of
fungibles, perhaps by measurement), and a declaration by the person
controlling the goods that she now detains them for another (i.e., expressing
the intent to abandon, in unequivocal manner, the status of a possessor). The
presumption of constructive transfer created by this article is defeated and no

9°
Ibid.; and see Henry T. Terry, "Possession", 13 III. L. R. 312 (1918-1919).
91
Ibid. Salmond.
92
Ibid.

138
 transfer occurs when the person having actual possession of the goods
declares bankruptcy.93

Article 1J4.Jl, provides that possession may be transferred by the delivery of

the docierits Q1hich represent a thing and permit the disposal thereof. Itis
submitted that the application of this stipulation requires four elements:
contract of sale or donation, negotiable -tnstrutWent (such as a bill of lading94
and air way or truck way bill or a warehouse deposit certificate) corporeal
movable things95 (represented by such negotiable instrument) and delivery of
the documents in the case of bearer negotiable instruments or endornent
followed by hand over in the case of negotiable instruments to order. When
these conditions are present, transfer of possession is effected even if the
) goods represented by the negotiable instrument are under voyage to be
1K/ actually received in several months time in the future. In the meantime, i.e.,
the time between the receipt of the negotiable instrument representing the
goods and the receipt of the goods, the new possessor is allowed to dispose of
the goods. Without this rule, the goods would be immobilized. This article is
the reflection of the principle that property law in a capitalist system facilitates
free movement of goods in the market.

There is an exception to Article 1144/1. Under Article 1144/2, when there is a

conflict between a person in conol of a thing and the person in possession of
the document representing the tg,he person in actual control of the thing
is favored provided she is in goQd faith. Suppose X orders goods from the
Sudan and obtains possession of the bill of lading two weeks before the arrival
of the goods. The cai-ier, V. sells the goods to Z pretending that she is the
owner. Z takes delivery of the goods froni t
At all times Z believed that the
goods belonged to Y. In this case, the law favors Z in a dispute between her
and X over entitlement to possession. In this case, it is ijnmaterial whether Z
7
93
Se 'Article 1145/2. If before the person in constructive possession actually receives the
goods, the holder (or detentor) is declared bankrupt the law presumes that the goods
are part of the patrimony of X. The law deems no transfer to have occurred. This rule
reflects the time honored principle that the assets of a debtor are the common pledges
of her creditor. The good faith of the parties to the constructive transfer of possession is
not a defense to the claims of the creditors of the bankrupt trader. The bankruptcy
changes the status of the parties. The constructive transferee may have a claim as a
creditor in bankruptcy pursuant to the contract of sale but assumes a position inferior to
secured creditors of Y.
94
See Articles 715, 721-725 and 732 of the Commercial Code.
95
Some people erroneously think that Article 1144/1 applies to immovable thing.
Under the Code posse8sion of immovable things cannot be transferred by mere
delivery of a title certificate. -

139
purchased the goods from the carrier or a person who stole them from the
carrier. The reason for favoring Z is to protect the smooth flow of commercial
transactions. To advance the security of commercial transaction the law
ensures the security of ownership. The import of Article 1144/2 is similar to
the purpose of the law of possession in good faith which we will examine later.

6.5 Protection of possession

Possession is protected through civil or penal action.96 Civil action is of two
types: possessory action and use of force. Possessory actions are filed in court.
They must be supported by proof of disturbed possession. Thus you need to
show that you have possession of a thing; that your possession is disturbed
(interfered with or removed); that the time limit for bringing the action has not
expired and that the person who has disturbed your possession has acted
without authority. Disturbance of possession includes actions directed against
the control of one's property. The disturbance caniesjjjrom physical acts, or
oral or written verbal communications. Dispossession occurs when the action
results in partial or total usurpation of control over the property or merely
prevents the quite and full enjoyment of the property. When enjoyment of the
property is disturbed the possessory action would seek an order ceasing the
disturbance. However when the disturbance is such that control over the
property has been usurp d the remedy sought will be restoration of
possession. There is also narrowly circumscribed room for the use of self-help
to defend one's possession.

6.5.1 Possessory actions

We can start this sub-section with a comparative note. In France, a possessory
action affecting immovables is called complainte. A successful complainte must
meet some requirements. First, the defendant must have acted so as to
infringe the plaintiff's possession. If the defendant so acted, it is no defense
that she acted in good faith, or that she had title to the property. Second, the
plaintiff must have had legal possession of the immovable for at least a year,
and her possession must be free from defects--it must be continuous, peaceful,
public and unequivocal. In French property law, an action in compainte must

96
See Articles 685-683 of the Criminal Code of Ethiopia Proclamation No. 414/2004.
Under these articles the major differences between possessory claims in civil and
criminal proceedings are that unlike in a cit'iI action, in a criminal case the defendant
must have carried out the disturbance with intent and criminal remedies are limited
to a fine, which goes to the coffer of the state, and imprisonment.

140
be instituted within a year of the occurrence of the dispossession or
97
infringement.
In Gerrhy, the starting point is the definition of unlawful interference.
Unlawful interferences exist when anyone ousts from possession a direct
possessor without her will or disturbs her possession except when the law
permits the ouster or disturbance. The notion involves no element of
culpability on the part of the one who has interfered with possession.
Possession acquired through unlawful interference is defective. There are two
types of actions. First, there is a claim for recovery of possession by one who
has been deprived of direct possession through unlawful interference against a
possessor in defective possession. Secondly, a possessor has a claim for
removal of the disturbance and an injunction against further disturbance. In
German property law, the two possessory claims exist even if the psession of
the plaintiff is itself defective. The claims are excluded only when the
possession of the plaintiff is defective in relation to the defendant or her
predecessor in title, and such defective possession was acquired within a year
prior to the deprivation or disturbance of possession complained of. Unlike
French law, German law does not distinguish between movables and
immovables as far as possessory actions are concerned. As in France,
possessory actions must be instituted within one year of the occurrence of the
98
dispossession or infringement.

Articles 1148 and 1149 of the Code prescribe the remedies available in
Ethiopian law for disturbance or interference with possession.99 Possessory

97
Op. cit., Mattel, Basic Principles, at 174
98
Opcit., Ryan at 153-156.
99
Article1148 gives possessors and holders the ability to use justifiable force to
prevent a-disturbance of possession. It states:
(1) The possessor and the holder may use force to repel any act of usurpation or
interference.
(2) Where the thing has been taken away from him either by violence or secretly,
he may take it back forthwith, either by expelling the usurper or by seizing the
thing from the hands of a usurper caught in the act or when running away.
(3) He shall refrain from any act of violence which is not justified in the
circumstances.
Article 1149 sets out the legal actions available:
(1) The possessor or holder who is deprived of his possession or whose possession
is interfered with may require the restoration of the thing or the cessation of
the interference and claim compensation for damages.
(2) The action shall be barred if it is not brought within one year from the day of
the usurpation or interference.

141
 actions may be brought when one is ousted from possession (i.e. total or
partial loss of control over the thing), or when possession is merely-disturbed.
Available remedies are the restoration of possession of the thing or cessation
of the disturbance coupled with damages or both To be successful the
applicant must show tual or cotiitiuctive possession of a thing without
defect, that possession has been disturbed or deprived (wholly or partially) and
that the action has been brought within the prescribed time limit. Cases of
total or partial deprivation of possession are self-evident; the difficulties arise
in determining what constitutes sufficient disturbance of possession to ground
an action.

- Disturbance of possession may be factual. It includes any physical act which

prevents the possessor of the thing from enjoying her possession quietly or
100
which presents an obstacle to that enjoyment. In one case, X bought a plot
of land, fenced it and built houses on it. The defendant Y forcibly entered X's
land to take measurements with objective of allotting the land to other
persons. Y argued that he was acting pursuant to Minister's order and engaging
in official duties. The court had no problem finding V interfered with X's
101
possession of the land. In another case, X received a letter from a
government authority advising that his house would be demolished in
accordance with law. The authority asserted that X had not obtained proper
authority to build on the land and thus, pursuant to the law it was to be
demolished on a certain date. The costs of demolition and removal were to be
borne by X. Again the court found interference with possession.102 A letter by
a lessor to her lessee of a house threatening eviction prior to the expiry of the
lease could also constitute interference with possession.

The interference can be legal, meaning that it results from any judicial or
extrajudicial act contradicting one's right to possession. Such as when, X being
a mere holder of Y's property, appears before public authorities for
registration of herself as owner or any other right or the registration of any

(3) The court shall order the restoration of the thing or the cessation of the
interference unless the defendant can prove forthwith and conclusively the
existence of a right in his favour justifying his conduct.
100
See op cit. Aman Assefa.
101 Beletu Aberash's Petition, (Supreme lmpiral Court, Criminal Appeal No 216, 1957
E.C.) in 3:2 Eth. J L. (1967) at 358.
102
See Alemayehu Dest eta] v. Wondyefraw Tarekg cited below. In Addis Ababa the
City Courts are empowered to handle possessory actions, and issues related to the
issuance of permits and land use in enforcement of the Addis Ababa Master Plan.
See Article 41/1/a of the Addis Ababa City Government Charter Proclamation No.
311/1997, (as amended in 2004) Fed. Neg. Gaz. 3 Year No. 5.

142
deed showing the same. Similarly when X without authority poses as a seller
of the property and draws up a contract for sale. It would also be the case if X,
unknown to the owner, publicly proclaimed herself to be the owner or the
possessor of the property.1113

Not all disturbances of possession are illegitimate. However the onus is on the
defendant to a possessory action to show forthwith the existence of a right in
her favor justifying her conduct. For example a joint owner is entitled to the
physical use of the thing jointly owned.104 X and Y are joint owners of a
property. If X files possessory action against Y with the view to preventing the
latter from accessing that thing, Y can request the court to reject the suit based
on the presumption that absent a contrary arrangement joint owners have
concurrent possession of the property and one cannot disturb her own
possession.105 A similar conclusion ought to hold in the case of a possessory
claim filed by a husband against a wife in relation to matrimonial property.
Police in possession of a valid search warrant are entitled to search the place
described in the warrant and take the articles indicated in the warrant. As long
as the police have acted within the scope of the warrant any possessory action
filed against them would be defeated. By virtue of the authority vested in
them certain authorities may seize commodities unfit for human consumption
or prohibited or untaxed items smuggled into the country and destroy or
auction them. It would be futile to bringing a possessory action against them.
Likewise, it is futile to file a possessory claim against authorities empowered to
demolish buildings erected without permit.106
Generally, title is not relevant in a possessory action. Even a true owner, who
interferes with the lawful possession by another of the owner's property may
be forced to restore possession and will not be permitted to set up her own
title to defeat it. To succeed in removing the person from possession she must
first give up possession and then bring a legal action for the recovery of the
possession of thing on the ground of her course of
action to take is to adopt a rule that every possessor shall be entitled to retain
and recover her possession until deprivec() dof it by ajsdgEnt according to
law.'°7 In so e_j\urisdiction(e.g., France and Louisiana), tftle is relevant in
cases where-there is doubt as to the extent of the possessory right, (for
example, the extent of the area on which the right can--be exercised) which

103
Op.cit., Aman Assefa.
104
See Article 1263 of the Code.
105
Op. cit., Abebe Mulatu, "Article 1149", at 55-56.
106
See Article 16/2 of the Re-enactment of Urban Lands Lease-holding Proclamation
No. 272/2002, Fed. Neg. Gaz. Year 8 No19.
1,117
Op cit. Salmond, at 292-294.

143
may entail the presentation of documents evincing title. In one old Supreme
Court case, the court having held that the defendant interfered with the
possession of the plaintiff, reacted to the defendant's argument that the
plaintiff did not have title to the land in dispute by stating:
The question of ownership is not in issue; the plaintiff is only asking
for an injunction restraining the authority from interfering with his
possession. Article 1149, protects possession, independently of
ownership. Any person who has possession of land cannot have that
possession interfered with and if any person claims to have a better,
right than the possessor then that person must institute proceedings
against the possessor to prove that he has a better right. It is not for
the possessor to institute proceedings against those who claim to
have a better right. If the authority claims to have a better right to
the land in question than the plaintiff, then it is for the authority to
bring action.108
In a recent case, the Cassation Division of the Federal Supreme Court ruled that
a certificate of holding must be produced for one to succeed in a possessory
action in respect of a plot of land. The court held:109
The respondent did not produce an appropriate certificate of
possession for the plot involved in the litigation. Without adducing
this evidence, the respondent cannot be considered as having actual
control, within the meaning of Article 1140 of the Code, over the plot
even if the respondent had had possession over such plot. One
cannot have right of possession without establishing the existence of
actual control over the subject matter.

This ruling is contrary to the very purpose of possessory actions and diverges
completely from the stances taken by different jurisdictions on the relevance
of title in possessory actions.
A person who files a possessory action seeks the recovery of possession or the
cessation of interference with her possession. She does not claim the recovery
of ownership. Thus, the fact that a plaintiff fails in a possessory action does
not mean that the defendant may then raise it as resjudicata in a proceeding
concerning ownership or contract. Suppose in an action filed by a lessee
claiming that the lessor disturbs her possession, the court orders the lessor to

108 Op cit. 'Petititon".

109
Ethiopian Islamic Affairs Council v. Amsalu Asemamaw Selam Fire Cattle Rearing
General Partnership, Cassation File No. 31113, Ginbot 19, 2000E.C. (unpublished,
on file with this author).

144