Abstract
Throughout the common law world the notion that classes of property rights are closed in number is a prevailing concept across property regimes. This closed in number, or numerus clausus, principle has served property rights well. This principle has prevented messy property arrangements from arising – such as an agreement between two people where one owns a watch on Tuesdays and Thursdays, and the other owns it the rest of the week. However, as technology evolves, property is created in items that the legislature never contemplated. In this article we explore the seminal Canadian case of JCM v ANA and examine how numerus clausus and property no longer remain sufficient tools for delineating individual’s rights to tangible goods. Whether the sperm straws in question in JCM are property or not, and whether numerus clausus recognizes a category of property rights where human tissues or fluids capable of providing life or not, are contentious issues, not easily resolved. The argument is made that the numerus clausus principle is of marginal use considering such forms of unconventional property as human gametes. This is supported through a review of JCM, followed by an exploration of the optimal standardization. The second part of this work seeks to demonstrate the incompatibility of the numerus clausus principle, and the optimal standardization theory, with a critical analysis of JCM that underscores three central but overwhelming critical problems with such an application.
Highlights
The second part of this work seeks to demonstrate the incompatibility of the numerus clausus principle, and the optimal standardization theory, with a critical analysis of JCM that underscores three central but overwhelming critical problems with such an application
This is the case when taking into consideration the straws of sperm, which were at issue in the case of JCM v ANA. (Note 3) the argument presented here is that the numerus clausus principle as advanced by Merrill and Smith, is not as useful as they propose, when taking into consideration such forms of unconventional property as human gametes
According to Merrill and Smith, the numerus clausus principle can be explained based upon an optimal standardization of property rights. (Note 21) They assert that when individuals wish to obtain rights to property from another person, when individuals wish to avoid infringing upon the property rights of another person, or when the individual encounters property rights in any manner, the individual will measure the cost of doing so. (Note 22) When it is found that the cost of measurement is less the cost of the goal the individual will proceed along that course
Summary
In their article “Optimal Standardization in the Law of Property: The Numerus Clausus Principle” Thomas Merrill and Henry Smith assert that the numerus clausus principle is a useful, if even imperfect, tool for striking a balance between the complete customization of forms of property and the standardization of property to one single form, such as the fee simple. (Note 1) Their argument is supported by an examination of how the measurement of cost externalities takes place using the useful paradigm of one hundred individuals, all of whom own one hundred different watches, and the ensuing transfer of rights to the watches between others. (Note 2) While this argument presents itself with considerable appeal, and one for traditional types of property, it happens to encounter problems when new types of property are conceived. (Note 2) While this argument presents itself with considerable appeal, and one for traditional types of property, it happens to encounter problems when new types of property are conceived This is the case when taking into consideration the straws of sperm, which were at issue in the case of JCM v ANA. (Note 3) the argument presented here is that the numerus clausus principle as advanced by Merrill and Smith, is not as useful as they propose, when taking into consideration such forms of unconventional property as human gametes We establish this line of argumentation and support through a review of JCM, followed by an exploration of the optimal standardization. The second part of this work seeks to demonstrate the incompatibility of the numerus clausus principle, and the optimal standardization theory, with a critical analysis of JCM that underscores three central but overwhelming critical problems with such an application
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