The term “title” originates from the Roman law word “titulus” and the French term “titre.
” In
jurisprudence, the concept of title has been subject to varying interpretations by different legal
theorists. According to Salmond, title is the fifth essential element of a legal right. He defines it
as the set of facts or events by virtue of which a right becomes vested in its owner. For
Salmond, title is the de facto antecedent, and the legal right is the de jure consequent. He
emphasizes that a person has a right to a thing because he has a title to it—title being the root
or foundation from which rights arise. He argues that if the law confers a right on one person
and not on another, it is because certain special facts are true of the former and not of the latter,
and these facts constitute the title.
In contrast, Holland does not recognize title as a component of a legal right. He criticizes the
use of the term on the ground that it fails to convey the facts that transfer or extinguish rights.
He notes that while a fact giving rise to a right has been historically referred to as a title, there is
no equivalent term for facts that deal with the transfer or extinction of rights. Thus, he finds the
term imprecise and inadequate.
Lord Blackburn, in practical judicial usage, equates title with legal ownership. For example, in
one of his statements, he said: “No title in the ship was conveyed,” clearly using the term to
refer to the absence of legal right or ownership over the ship.
John Austin offers another perspective, maintaining a clear distinction between title and right.
He argues that title is not the right itself but merely the investitive fact that creates the right.
According to Austin, a legal right is a power, faculty, or capacity granted to a person, and it is
founded upon the title. Thus, while a title gives rise to the right, it is not the right per se.
Justice Holmes J reinforces this understanding by stating that every right is a legal
consequence of one or more specific facts defined by law. These facts, which are unique to the
person claiming the right, form the title. Therefore, a title is essentially any fact that creates a
legal right or duty, distinguishing the person entitled from others.
Finally, Jeremy Bentham also challenges the traditional use of the term “title” and suggests
replacing it with “dispositive facts.” He categorizes dispositive facts into three types: investitive
facts (which create rights), divestitive facts (which extinguish rights), and translative facts (which
transfer rights). He further subdivides investitive facts into collative facts (which confer rights
naturally or through voluntary acts) and impositive facts (which confer rights through the
sovereign’s command). Bentham’s terminology aims to provide a clearer and more analytical
framework for understanding how rights originate, are transferred, or extinguished.
Here are detailed, paragraph-style notes on the Classification of Titles along with related
concepts like vestitive facts and Bentham’s classification, suitable for exams or academic use:
Classification of Titles
Titles, also known as investitive facts, are those legal facts by virtue of which a right becomes
vested in an individual. These form a part of a broader category known as vestitive facts, which
include both investitive and divestitive facts. According to Salmond, vestitive facts are those that
relate to the creation, extinction, or transfer of rights. While investitive facts create rights,
divestitive facts are those that destroy or transfer them.
Investitive facts or titles are further classified into two main types: original titles and derivative
titles. An original title refers to the creation of a new right that has no prior existence. Examples
include catching a fish from a river, writing a new book, or inventing a new machine. These
rights originate with the individual and are not derived from another person. In contrast, a
derivative title involves the transfer of an existing right from one person to another. For instance,
if you buy a fish from a fisherman who caught it, your ownership of that fish is through a
derivative title. Similarly, if an author assigns the copyright of a book to someone else, the
transferee receives a derivative title.
Divestitive facts are the opposite of investitive facts—they terminate or transfer rights. These are
further divided into two categories: extinctive divestitive facts and alienative divestitive facts.
Extinctive divestitive facts are those that completely extinguish rights, such as the natural expiry
of a copyright or the destruction of property. Alienative divestitive facts are those that transfer
rights from one person to another. An important point to note is that the same legal act can be
both a derivative investitive fact (from the buyer’s perspective) and an alienative divestitive fact
(from the seller’s perspective). For example, if you sell your fish to another person, it is a
derivative title for the buyer and an alienative divestitive fact for you.
Bentham’s Classification of Dispositive Facts
Jeremy Bentham provides a more nuanced classification under the term dispositive facts, which
are those that affect legal rights and duties. He divides dispositive facts into three primary
categories:
1. Investitive Facts – These create rights.
2. Divestitive Facts – These extinguish or release rights or duties.
3. Translative Facts – These transfer rights and duties.
Investitive facts are further split into:
● Collative Facts, which confer rights (e.g., inheritance),
● Impositive Facts, which impose duties (e.g., a legal obligation imposed by statute).
Divestitive facts are subdivided into:
● Destructive Facts, which end rights (e.g., death terminating personal service contracts),
● Exonerative Facts, which release a person from duties (e.g., repayment of a debt).
This classification provides a logical structure for analyzing how rights and duties arise, shift, or
cease in legal systems.
Another Classification of Vestitive Facts: Acts of the Law vs Acts in the
Law
Another notable classification of vestitive facts focuses on whether they operate through human
will or independently of it. Based on this distinction, vestitive facts are categorized into:
● Acts of the Law: Legal consequences that occur independently of human intention, such
as birth, death, or the lapse of time.
● Acts in the Law: Legal consequences that arise due to human intention or will. These are
further classified into:
○ Unilateral Acts: Acts performed by one person, which may be subject to dissent
(like offers) or independent of dissent (like making a will).
○ Bilateral Acts (Agreements): Acts involving mutual consent, such as:
■ Contracts: May be creative (e.g., creating obligations) or extinctive (e.g.,
termination upon fulfillment).
■ Grants: May convey or extinguish rights.
■ Assignments: Transfer of existing rights.
■ Releases: Giving up of rights or claims.
Acts in the Law
Acts in the law are those legal acts that are performed voluntarily by the parties. They reflect the
will or intention of the individuals involved and are responsible for the creation, transfer, or
extinction of rights.
Types of Acts in the Law
Acts in the law are divided into two types:
1. Unilateral Acts
● In unilateral acts, the will of only one party is effective.
● The consent of other parties is not necessary for the act to be legally valid.
● These acts are operative even if the affected party does not agree or is unaware.
● Examples:
○ Testamentary disposition (e.g., writing a will)
○ Exercise of a power of appointment
○ Avoidance of a voidable contract
○ Sale by a mortgagee (even without mortgagor’s consent)
For example, if a person executes a will, it is valid regardless of whether the person
in whose favour the will is made consents or is even aware of it.
2. Bilateral Acts
● These require the mutual consent of two or more distinct persons.
● The wills of both parties must coincide to give the act legal effect.
● Examples:
○ Contracts
○ Mortgages
○ Leases
○ Grants
Interesting point: A single act can be both unilateral and bilateral, depending on the
parties.
Example: If A transfers property to B in trust for C:
● It’s bilateral between A and B (both must consent).
● It’s unilateral with respect to C, who may not even know of the conveyance.
Importance of Agreements
● Agreements hold great value in law because they are evidence of justice and intention
between the parties.
● They are a private declaration of rights and duties, just as legislation is a public
declaration.
● Rights and liabilities are adjusted through mutual consent in agreements.
Courts usually enforce agreements, unless they are opposed to natural justice.
● Agreements reflect expectations voluntarily set by parties, and the law often seeks to
uphold those expectations when fair and reasonable.
Kinds of Agreements
Agreements can be broadly classified into three categories, based on their legal effect:
1. Agreements that Create Rights
These agreements bring new rights into existence.
● Contracts
○ Create personal rights and obligations (rights in personam).
○ According to Salmond, contracts are generally bilateral (both parties exchange
promises).
○ However, unilateral contracts also exist, where only one party makes a promise
and the other simply accepts (e.g., reward offers).
● Grants
○ Create rights other than contractual rights.
○ These are agreements by which non-contractual rights are conferred.
2. Agreements that Transfer Rights
These agreements result in the movement of rights from one person to another.
● Known as Assignments.
3. Agreements that Extinguish Rights
These lead to the termination of existing rights.
● Known as Releases.
Validity of Agreements
Agreements may either be valid or invalid:
● Valid Agreements
○ Enforced by courts of law.
○ They align with the true intention of the parties.
● Invalid Agreements
○ Contain some legal defect which prevents full enforceability.
○ Divided into:
● a) Void Agreements
○ Not recognised by law at all.
○ Consent or intention of parties is irrelevant.
○ Treated as if they never existed.
● b) Voidable Agreements
○ Legally valid unless challenged.
○ Due to defect in formation, one or more parties can choose to make it void.
○ Not void from the beginning, but can be annulled later.
○ Effect of nullification is retrospective, i.e., it relates back to the time the
agreement was made.
○ Examples: Agreements influenced by coercion, fraud, or misrepresentation.
○ Lies midway between valid and void agreements.
: If the void part of an agreement can be separated from the rest, the remaining part
remains valid.
Here’s a cleaner, more study-friendly version of your notes on Validity of Agreements,
maintaining the paragraph style but adding headings, bold phrases, and light structuring to
make it easier to read and revise:
Validity of Agreements
Salmond highlights several defects that may render an agreement invalid. These defects relate
to the capacity of parties, legal formalities, public policy, mistakes, consent, and consideration.
1. Incapacity of Parties
An agreement is invalid if entered into by a party not legally competent to contract.
● This includes minors and lunatics.
● Such persons are not recognised by law as capable of giving valid consent, making their
agreements void or voidable.
2. Non-fulfilment of Legal Formalities
Certain agreements require legal formalities to be fulfilled:
● Written form,
● Registration, or
● Signature of the parties.
Failure to meet these requirements renders the agreement invalid.
These formalities exist to:
● Prove the consent of the parties, and
● Distinguish between a concluded agreement and mere negotiations.
3. Agreements Against Public Policy or Morality
Some agreements are declared invalid by law due to their nature:
● Examples include wagering contracts and agreements in restraint of trade.
● These are considered either immoral or against public interest.
4. Mistake
An agreement may become invalid due to error or mistake, which can be:
a)
Essential Mistake
● Parties do not truly agree, as they are thinking of different things.
● Example: X agrees to sell land to Y, but X is thinking of one plot and Y of another.
b)
Unessential Mistake
● Relates only to external circumstances (not the nature of the agreement itself).
● Does not invalidate the agreement.
● Law applies the principle of “caveat emptor” (let the buyer beware).
5. Lack of Free Consent
If consent is obtained by:
● Coercion,
● Undue influence, or
● Compulsion,
then the agreement is not valid.
Only agreements made with free and voluntary consent are enforceable.
6. Absence of Consideration
Law requires that all valid agreements must have consideration (something of value
exchanged).
● It must be valuable, though not necessarily adequate.
● Inadequate consideration may indicate lack of free consent.
● Under Section 25 of the Indian Contract Act, an agreement without consideration is void,
except in certain exceptional cases
7. Family Arrangements / Settlements
Family settlements are treated specially under law due to their purpose of resolving internal
disputes:
● Such arrangements are based on the idea of antecedent titles held by family members.
● Each party relinquishes other claims and accepts the property allocated to them.
● No written document is required to validate the transfer, as it is assumed that each party
already had a rightful claim.
● Courts favour these arrangements as they:
○ Promote harmony,
○ Avoid litigation, and
○ Prevent future disputes.
Family settlements are not considered transfers of property, but rather recognitions of existing
claims. If no antecedent title exists, a family settlement cannot take place.
