Useful Notes on “Title”–The “de facto antecedent” of which the Right is the “de jure consequent”

If the law confers a right, he continues to observe, upon one man whom it does not confer upon another, the reason is that certain facts are true of him who is not true of the other, and these facts are the title of right.

Thus, if I own a pen, law gives me a right over it and does not give a similar right over that pen to any other person due to certain facts which exist in my favour. These facts constitute my title to the pen. Whether a right is inborn or acquired, a title is equally requisite.

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Some rights, Salmond observes, law gives to a man on his first appearance in the world; the others he must acquire for himself. But neither in the one case nor in the other can there be any right without a basis of fact to which it has its root and from which it proceeds.

The facts comprising a title may either be essential, being nec­essary to constitute the legal transaction, or accidental, being an accessory to the main or essential facts. The accidental facts serve as evidence of the transaction.

They may as well in some cases be for an entirely extraneous purpose as where written transactions require to be stamped to augment the revenue of the State. Title is simple where there are no accessory facts; it is complex where it includes accessory facts.

Facts which create, transfer or destroy rights are called vestitive facts. Vestitive facts may be divided into (1) investitures facts and (2) divestiture facts.

1. Investiture Facts or Title:

Investiture facts create rights. They are titles. But a right may be created de novo, i.e., it may have no previous existence, or it may be created by transfer of an existing right. In the former case it is called original and in the latter derivative. The catching of fish is an original title of the right of ownership, while the purchase of them is a derivative title.

2. Divestiture Facts:

The facts that take away, or cause the loss of, rights, are termed divestiture facts. They may be extinctive or alimentative. The former are those which divest a right by destroying it; the latter divest a right by transferring it to some other owner.

The surrender of a lease to the lesser divests the rights of the lessee by destroying the lease and it is an extinctive fact. When, however, the lease is transferred to some other person, it divests one owner of the particular right and creates rights in another. Derivative titles and alicnative facts are merely the same facts looked from a different point of view.

The transfer of a right involves the investiture of a right in the transferee and the divestiture of a right from the transferor. Hence what is a derivative title in the transferee is an alicnative fact with the transferor. Purchase is a derivative title and sale is an alicnative fact.

In Austin’s view a title is any fact through which the law confers or extinguishes a right or imposes or exonerates from a duty. This conflicts with the popular sense of the term “title” where it is used to describe the circumstances by virtue of which a right is acquired.

3. Dispositive Facts:

Bentham called “dispositive facts” to rep­resent the facts whereby rights or duties are created, transferred or extinguished. Dispositive facts, according to him, may be “investitures”, “divestiture” or “translative”. Investitive facts create rights or impose duties, divestiture facts terminate rights or relieve from duties and translate facts operate to transfer rights or duties from one person lo another.