Online Legal Resources

A to Z is a collection of resources for Ethiopian's legal profession, students, academics and the public. These links have been collected so that users with an interest in the law and Ethiopia may be able to access the Ethiopian legal information they require more quickly. The site is organized simply into an alphabetical list of law subjects. This link is a very helpful source for students who want to study online as teaching materials written by different university teachers under the sponsorship of Justice and Legal System Research Institute are included in the list. Moreover, Training materials prepared by different Proffessionals under the sponsorship of Federal Justice Organs Professionals Training Centerare also in our list. 

 

 

The theory that property exists as a natural right has had long and widespread acceptance. Many of the legal philosophers of Germany were expositors of this theory. As they expressed it the personal right of man, as determined by nature, is to possess a sphere of action sufficient to supply him with the means of support. This physical sphere should, therefore, be guaranteed to everyone, conditioned, however, upon his cultivating it by his own labor. Thus all should labor and all should also have wherewith to labor. The right to possession is a direct right, inalienable, antecedent to all law, and instituted for the general good. This theory is one application of the approach that all activity of the human race is the planned product of divine wisdom or of some unavoidable and immutable nature of things.

 

Laveleye in the twenty-seventh chapter of his book on Primitive Property (1878) gives the following exposition and refutation of four of the theories advanced concerning the origin of property.

 

Occupation Theory

''Roman jurists and most modern ones have considered occupancy of things without an owner as the principal title conferring property. Quod enim nullius est id, ratione naturali, occupanti conceditur, says the Digest. This theory can be easily maintained, so long as it only has to do with movables which can be actually seized and detained, like game taken in the chase, or goods found; but it encounters insurmountable difficulties when we attempt to apply it to the soil. In the first place, history shows that the earth is never regarded by men as res nullius. The hunting ground of hunting tribes, or the pastures of pastoral nations, are always recognized as the collective domain of the tribe; and this collective possession continues, even after agriculture has begun to fertilize the soil. Unoccupied land has therefore never been regarded as without an owner. Everywhere, in former times as in our own, it was considered as belonging to the commune or the State, so that there was no room, in former times any more than in our own, for acquisition by occupancy.

''Most of the partisans of this theory do allow a sort of primitive community, communion bororum primaeva. But they add, that in order to obtain individual ownership of things which they took possession of, all men tacitly agreed to renounce, each for himself, this undivided right over the common domain. If it is the historic origin of property, that they seek to explain in this way, history knows of no such agreement. If it is meant as a theoretical and logical origin, in this case they lapse into the theory of contract, which we shall examine further on.

''M. Thiers, in his work De la Propriete, borrows the idea of Cicero, who, comparing the world to a theatre, asserts that every one makes the place he occupies his own: Theatrum cum commune sit, recte tamen dici potest ejus eum locum quem quisque occupavit. The example goes against the theory which he is endeavouring to establish; for, in the first place, the spectator is only in possession of his place, and his possession merely gives him a temporary right and not the perpetual ownership; and, secondly, he occupies but one place. Hence no one could at best make his own more than the portion of the soil which he actually retains and can cultivate. M. Renouard, in his excellent work, Du Droit industriel, recognizes this: 'Of strict natural right, the occupation of land present serious difficulty in execution. It only gives a right over the soil actually held in possession.' Without this limit, in fact, a single man might, by some manifest sign of his intention, occupy a whole province.

''Occupation is a fact resulting from chance or force. There are three of us on an island large enough to support us all, if we have each an equal part; if, by superior activity, I occupy two-thirds of it, is one of the others to die of hunger, or else become my slave? In this case the instinct of justice has always commanded an equal partition. Hence we do conceive of a right of acquisition, anterior and superior to the simple fact of apprehension, which it is called upon to limit and regulate ...

 

Labour Theory

''The second theory of property would make labour its basis, This is the one adopted by economists, because, since Adam Smith, they have attributed to labour the production of wealth. Locke was the first to expound this system clearly, in his Second Treatise on Civil Government, Briefly, this is a summary of what he says on the subject:-

''God gave the soil to mankind at large, but as no one enjoys either the soil or that which it produces unless he be owner, individuals must be allowed the use, to the exclusion of all others.

''Everyone has an exclusive right over his own person. The labour of his body and the work of his hands therefore are likewise his property. No one can have a greater right than he to that which he has acquired, especially if there remains a sufficiency of similar objects for others. My labour, withdrawing objects from the state of community makes them mine. But the right of acquisition must be limited by reason and equity. 'If one exceeds the bounds of moderation and takes more than he has need of, he undoubtedly takes what belongs to others.'

''The limit indicated by Locke is, for moveable things, the amount which we may take without allowing them to spoil. For land, the limit is the amount which we can cultivate ourselves, and the condition that there be left as much for others as they require. 'The measure of property,' he says, 'nature has well set by the extent of man's labour and the conveniences of life; no man's labour could subdue, or appropriate all; nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to encroach upon the right of another, or acquire to himself a property, to the prejudice of his neighbor, who would still have room for as good and as large a possession. This measure, we see, confines every man's possession to a very moderate proportion, and such as he might appropriate to himself, without injury to anybody.'

''So according to Locke the great principle is this: 'Every one ought to have as much property as is necessary for his support.'

''The necessity of private property results 'from the conditions of human life, which require labour and some material on which it may be exercised.'

''As Locke admits, on the one hand an equality of right in all men, and on the other hand the necessity for every man to have a certain portion of material, on which to live by his labour, it follows that he recognizes a natural right of property in every one.

''This theory is certainly more plausible than that of occupation. As M. Roder very justly remarks in his work, Die Grundzuge des Naturrechts, § 79, labour establishes between man and the objects which he has transformed a far closer connexion than mere occupation, whether symbolical or even actual. Labour creates value; accordingly it seems just that he who has given birth to it, should also enjoy it. Moreover, as no one can legitimately retain more than that which he can cultivate, there is a limit which prevents usurpation. But no legislation ever allowed that labour or specification was alone a sufficient title to establish property. He who is not already owner of the land or the material transformed, acquires nothing by his labour but a right to compensation or to remove the buildings and plantations set upon another man's land. Kant had already remarked that the cultivation of the soil was not sufficient to confer the ownership. 'If labour alone,' says M. Renouard (Du Droit industriel, p. 269), 'conferred a legitimate ownership, logic would demand that so much of the material produced, as exceeds the remuneration of such labour, should be regarded as not duly acquired.'

''Nay more: according to this theory the owner would manifestly have no right to full value of land let to a tenant. The tenant would become co-proprietor in proportion as the land was improved by his labour; and, at the end of a certain number of years, the proprietor would entirely lose all right of ownership. In any case, he could never raise the rent; for to do so, would be to appropriate the profits of another's labour, which would obviously be robbery.

''If labour were the only legitimate source of property, it would follow that a society, in which so many labourers live in poverty and so many idlers in opulence, is contrary to all right and a violation of the true foundation of property.

''The theory so impudently adopted by most economists, and even by M. Thiers in his book, De la Proprie'te', would therefore be a condemnation of all our modern organization. Jurists have violently opposed the theory. The summary of their objections may be found in M. Warnkoenig's work, Doctrina juris philosophica, p. 121, and in the Naturrecht of Ahrens. If labour is the source of property, why should the Institutes and the Code civil have said nothing of it? It may be said that labour ought to be the source of all property, but this principle would be condemnatory of the existing organization of society.

Social Contract

''In order to explain why men abandoned the primitive community, it has been asserted to have been in consequence of a convention, and thus property would be the product of a contract. This theory has even less to sustain it than the preceding.

''In the first place, when we seek to derive a right from a fact, we are bound to establish the reality of that fact, otherwise the right has no foundation. Now, if we go back to the historic origin of property, we find no trace of such a contract. Moreover, this convention, which we should to seek in the night of past ages, cannot bind existing generations, and consequently cannot serve as the basis of property at the present time. Convention cannot create a general right, for it itself has no value, except so far as it is conformable to justice. If property is legitimate and necessary, it must be maintained; but a decision taken by our remote ancestors will not entitle it to respect.

''Kant holds that specification creates a provisional ownership, which only becomes final by the consent of all the members of the society. Kant does not maintain that this consent was a historic fact: he speaks of it as a juristic necessity, or a fact the justice of which commands respect. But the moment we introduce the idea of justice, we are demanding of the general principles of law the sanction of human institutions, and to what purpose is it then to invoke a convention which has never occurred? It is enough to show that property is conformable to right.

''Without having recourse to abstract notions of justice or to the obscurities of historic origins, many writers of very different shades have maintained that property is the creature of law.

'' 'Banish governments,' says Bossuet, 'and the earth and all its fruits are as much the common property of all mankind as the air and the light. According to this primitive natural right, no one has an exclusive right to anything, but everything is a prey for all. In a regulated government, no individual may occupy anything. ... Hence arises the right of property, and, generally speaking, every right must spring from public authority.'

''Montesquieu uses nearly the same language as Bossuet: 'As men have renounced their natural independence to live under political laws, they have also renounced the natural community of goods to live under civil laws. The former laws give them liberty, the latter property.'

''Mirabeau said, in the tribune of the Constituent Assembly, 'Private property is goods acquired by virtue of the law. The law alone constitutes property, because the public will alone can effect the renunciation of all and give a common title, a guarantee for individual enjoyment.' Tronchet, one of the jurists who contributed most to the formation of the Code civil, also said: 'It is only the establishment of society and conventional laws that are the true source of the right of property.' Touillier, in his commentary on the Droit civil francais, admits the same principle. 'Property,' according, to Robespierre, 'is the right of every citizen to enjoy the portion of goods guaranteed to him by law.' In his Treatise on Legislation, Bentham says: 'For the enjoyment of that which I regard as mine, I can only count on the promises of the law which guarantees it to me. Property and the law were born together, and will perish together. Before law, there was no property; banish law, and all property ceases.' Destutt de Tracy expresses the same opinion; and more recently, M. Laboulaye in his Histoire de la propri'et'e en Occident, formulates it with great exactness: 'Detention of the soil is a fact for which force alone can compel respect, until society takes up the cause of the holder. The laws not only protect property, they give birth to it. ... The right of property is not natural but social.' It is certain, in fact, as M. Maynz remarks, that 'the three legislations (Roman, German and Slavonic) which now divide Europe, derive from the State exclusively the absolute power over goods which we designate by the word property or ownership.'

''If Mr. Laboulaye and other authors of his opinion only intended to speak of a state of fact, they are right. If I have gathered fruits or occupied a spot of land, my right hand at first, and subsequently the power of the state, guarantee me the enjoyment thereof. But what is it that my strong hand or the power of the state ought to guarantee to me? What are the proper limits of mine and thine? is the question we have to determine. The law creates property, we are told; but what is this law, and who establishes it? The right of property has assumed the most diverse forms: which one must the legislator sanction in the cause of justice and the general interest?

''To frame a law regulating property, we must necessarily know what this right of property should be. Hence the notion of property must precede the law which regulates it.

''Formerly the master was recognized as owner of his slave; was this legitimate property, and did the law, which sanctioned it, create a true right? No: things are just or unjust, institutions are good or bad, before a law declares them as such, exactly as two and two make four even before the fact be formulated. The relations of things do not depend on human will. Men may make good laws and bad laws, sanction right or violate it, right exists none the less. Unless every law is maintained to be just, we must allow that law does not create right. On the contrary, it is because we have an idea of justice superior to laws and conventions, that we can assert these laws or conventions to be just or unjust.''

Utilitarian

''A relatively modern theory takes the position that property arose because of its utility. 'Who would care to save and renounce immediate enjoyment, if he could not reckon on further enjoyment? 'Landed property,' said Mill, 'if legitimate, must rest on some other justification than the right of the labourer to what he has created by his labour. The land is not of man's creation; and for a person to appropriate to himself a mere gift of nature not made to him in particular, but which belonged as much to all others until he took possession of it, is prima facie an injustice to all the rest. ... The private appropriation of land has been deemed to be beneficial to those who do not, as well as to those who do, obtain a share. And in what manner beneficial? Let us take particular note of this. Beneficial, because the strongest interest which the community and the human race have in the land is that it should yield the largest amount of food, and other necessary or useful things required by the community. Now though the land itself is not the work of human beings, its produce is; and to obtain enough of that produce somebody must exert much labour, and in order that this labour may be supported, must expend a considerable amount of the savings of previous labours. Now we have been taught by experience that the great majority of mankind will work much harder, and make much greater pecuniary sacrifices, for themselves and their immediate descendants than for the public. In order, therefore to give the greatest encouragement to production, it has been thought right that individuals should have an exclusive property in land, so that they may have the most possible to gain by making the land as productive as they can, and may be in no danger of being hindered from doing so by the interference of any one else. This is the reason usually assigned for allowing the land to be private property, and it is the best reason that can be given.' ''

 

If property originated in considerations of general utility, it is quite understandable that its incidents from time to time should deserve constant reexamination as to their continued conformity to new wants and the new circumstances of a changing society.

 

Whether this pragmatic theory of the origin of property is true or untrue is not too important for our purposes. It is important, however, to believe, and to act as if we believed, that private property must find its justification solely in its social contribution.

 

Anti Property Argument

Marx is not the only one to have warned of problems in private property rights (at least as defined and awarded in western societies). Henry Gorge, Plato, Pierre-Joseph Proudhon, Jean Jacques Rousseau, and many early Christian philosophers also cautioned of property. Private property, it has been argued, inevitably creates a growing inequality of wealth which is morally unjustifiable and leads to social instability. Private property, it also has been urged, undermines good moral character. Recent scholars have argued that what some see as the advantages of private property can be disadvantages to others. In response to the argument that private property increases “the psychic good of certainty,” for example some argue that “to enhance certainty for one person is to impair certainty for another.” These arguments have led some to reject private property entirely and others to urge limitations on property rights.

 

Land: Significance and Ownership

1.4.1 General concept

As we mentioned earlier, land is a surface of the earth that includes the fixtures on it such as buildings, fence, tree plants, and improvement to the land etc. Land provides the foundation for the social and economic activities of people. It is both a tangible physical commodity and a source of wealth. Because land is essential to life and society, it is important to many disciplines, including law, economics, sociology, and geography. Each of these disciplines may employ some what different concept of real property.

 

Within the vast domain of law, issues such as the ownership and the use of land are considered. In economics, land is regarded as one of the four agents of production, along with labour, capital, and entrepreneurial coordination. Land provides many of the natural elements that contribute to a nation’s wealth. Sociology focuses in the dual nature of land as resource to be shared by all people; and as a commodity that can be owned, traded, and used by individuals. Geography focuses on describing the physical elements of land and the activities of the people who use it.

 

Lawyers, economists, sociologists, and geographers have a common understanding of the attributes of land:

  • Each parcel of land is unique in its location and composition

  • Land is physically immobile

  • Land is durable

  • The supply of land is finite

  • Land is useful to people

 

The scope of right to land

 

Cujus est solum, ejus est usque ad coelum

He who is proprietor of land is proprietor also of every thing on it. All buildings, all natural fruits, and everything above as well as below the surface, belong to the owner of the land. This Latin maxim was also reaffirmed by the English judge Lord Coke when he said cujus est solum ejus est usque ad coelum ad inferno, the owner of the surface of the real estate has property rights in the air above the surface and in soil below. Hence using this medieval time concept of land some writers give definitions such as the following:

 

 Land…includes not only the ground, or soil, but everything that is attached to the earth, whether by course of nature, as are trees and herbage, or by the hands of man, as are houses and other buildings. It includes not only the surface of the earth but every thing under it and over it. Thus in legal theory, the surface of the earth is just a part of an inverted pyramid having its tip, at the center of the earth, extending outward through the surface at the boundary lines of the tract, and continuing on upward to the heavens.

 

The ancient dictum of Lord Coke, which gave the owner of the surface the rights ad coelum (literally, to heavens), was utterly long before the development of air travel. Change in technology and travel have raised a number of legal questions concerning the scope of real estate ownership, rendering the ancient concept of unrestricted ownership to the heavens depths unduly simplistic. Modern society limited this right for different reasons that not only in relation to aviations but also for the reason that the state wants to control natural resources below the ground.

 

Different Forms Ownership of Land

Conventionally speaking, the ownership of land may be classified generally in to three major and two minor categories: private, communal and public on the one hand, and joint and community ownership on the other. In the following a brief discussion is made about the nature of such ownership rights.

 

Private Ownership

This is the kind of land totally owned by private individuals. It belongs absolutely to an individual and as such the law provides an absolute protection against any intervention on such right by any other party. In principle individuals have an absolute right of use, exclusion, and disposition of their property. However, in reality private ownership right is not an absolute one for the state and the public using the law may limit such right. Private ownership of land is well known and developed concept and system in most countries. The Ethiopian Civil Code under article 1205 describes private ownership as the widest right man can exercise over his property. Today only few countries, most of which were part of the former USSR socialist republic and other former socialist and communist countries, including Ethiopia, prohibited private ownership of land. The present Ethiopian constitution basically prohibits the private ownership of land. According to the FDRE constitution Article 40(3) the right to ownership of rural and urban land as well as of all natural resources is exclusively vested in the state and the people.

 

Communal Ownership

Communal ownership of land refers to such property of land commonly owned by a community of a certain village or locality. In most cases common grazing lands, water wells, irrigation lands or river systems, common use forestry and mountains, fishing lakes etc are categorized under this system. There are many such kinds of arrangements in many part of the world. The village or the community need to have some regulation to control the use of the common property. In some systems the state intervenes to make laws and regulations for the community. In Ethiopia, although such kind of system is envisaged in more general way in the constitution, Federal and regional land laws provide specific rules for the protection of community land such as grazing and irrigation lands. In reality there are many cases of irrigation and grazing lands commonly owned by villagers or particular people of the village.

 

Proclamation 456/2006, a proclamation that is provided for the Rural Land Administration and Land Use, defines “communal holding” under article 2(12) as "communal holding" means rural land which is given by the government to local residents for common grazing, forestry and other social services.

 

State/Public Ownership

This type of property constitutes all lands which are not owned by individual person/s or the community. In most countries, mountains, public highways, public halls, parks, trans-boundary Rivers and forest lands, lakes etc are owned and administered by the state. It must be noted that in western countries lakes, mountains and forestland can be owned by private people. The common similarity all countries show on the other hand is that public highways and trans-boundary Rivers are owned by the state. In Ethiopia, as stated above the state and the people together own these properties, and it seems the public in general or the state itself are also prohibited the absolute power of disposition of land in Ethiopia, sale.

 

The Federal Land Administration and Land Use Proclamation identifies under article 2(13) “forestlands, wild life protected areas, state farms, mining lands, lakes, rivers and other rural lands,” as state holding lands.

 

The civil code under articles 1444 and following tries to identity the kinds of real properties classified as state or public domain or properties. Although it is no more relevant for the current system of law, it may help students to understand the kind of real properties which can be owned by the state elsewhere.

 

Art. 1445. - Public domain. - 1. Principle.

Property belonging to the State or other administrative bodies shall be deemed to form part of the public domain where:

(a) it is directly placed or left at the disposal of the public; or

(b) it 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.

Art. 1446. - 2. Immovables.

The following property, if owned by the State or other administrative bodies, shall be deemed to form part of the public domain:

(a) roads and streets, canals and railways; and

(b) seashores, port installations and lighthouse; and

(c) buildings specially adapted for public services such as fortifications and churches.

 

 

Joint Ownership

In some systems it is a type of ownership of land by two or more persons in which each owns undivided interest in the whole. This kind of system, based on the kind of rules adopted by each and every country, may include starting from simple joint ownership of plot of land by two people up to ownership rights of hundreds of people in condominiums. In Ethiopia, the principle of joint ownership right is governed by the civil code or other land related recent laws as the case may be. Under the civil code (articles 1257 ff.) it is stated that joint ownership right may be determined by agreement of the parties. In the absence of such agreement the law presumes equal right to the thing. The right can also be freely exchanged, subject to the limitation of pre-emption, however. As a special case, a joint wall of two real properties is considered as a joint property in the code. In condominium or other such related buildings, common walls, roofs, parking lots, stairs and corridors are jointly owned and administered by the users of the building or their association.

 

 Common Ownership

Property owned in common by husband and wife each having an undivided one-half interest by reason of their marital status. Common property in the FDRE Family law is the category of property within the marriage other than private property of one of the spouses. The nature of common property is that it can not be divisible and each of the spouses has equal right to the whole property. Hence the law demands joint consent and agreement for the sale, exchange, mortgage or donation of common property. In today’s Ethiopia husband and wife commonly possesses urban and rural land. Especially in rural areas, during divorce the farm land is being equally divided between the man and the woman.

 

Additional Reading

 

The concept of ownership is basically understood in the continental system as an absolute one while in the USA it is conceived as bundle of rights. In the following additional reading attached to elaborate more. Students are advised to read the whole article.

John Henry Merryman

Ownership and Estate (variations on Theme by Lawson)

48 Tul. L. Rev. 916, 918, 924-25, 927-28 (1974)

 

…Productive comparative study of the land law in civil and common law jurisdictions is difficult-perhaps impossible-without some understanding of a fundamental difference that can be summarized by saying that the former is a law of ownership and the latter is one of estate. While it is probably true that a few lawyers in either system know that there is a difference and that it is important, few have gone much beyond this general impression. In this essay, I attempt to provide something more substantial by discussing the differences between ownership and estate in the two systems and, more specifically, in the land law of Italy and that of a more or less typical common law jurisdiction in the United States. Italian property law is not exactly like that of any other civil law nation, but it probably comes as close to a "typical" civil law property system as any other and closer than most. Much of what is said here is accordingly applicable to the land law in other West European nations and throughout Latin America.

 

…Ownership is, as concepts go, a very powerful one, and those who employ it pay its price. The land law of Italy and other civil law nations, based firmly on Roman law, is a law of individual ownership. It is part of the tyranny of the concept of ownership that it strongly resists fragmentation. To say that I own a thing is to imply that you do not, for if it is yours how can it be mine?' Such thinking thus tends to eliminate all intermediate possibilities between ownership and non-ownership. Consequently, when it becomes desirable to equate power over land with more than one person it seems preferable to do so by a device which, at least apparently, avoids dividing ownership. In every transaction ownership must be transferred in toto or not at all.

 

This, although simplified, gives some of the flavor of ownership in the Italian land law. Although its non-legal composition may vary from time to time with social and economic change, legal ownership remains exclusive, single, and indivisible. Only one person can own the same thing at the same time. But, since the requirements of society are such that power over land must frequently be divided between individuals, it becomes necessary to rationalize the dictates of theory and the requirements of practice.

 

The inconsistency between ownership and fragmentation can, of course, be exaggerated. Even in the civil law, land can be "owned" simultaneously by two or more persons in comune, a form of co-ownership much like our tenancy in common. But a functional division between beneficial and security title, or between legal and equitable title, or a temporal division into present and future estates, simply does not exist. Ownership is, in theory, indivisible in function and time.

 

The contrast with English theory is remarkable. In England, ownership resided in the king, and the distribution and retention of lands throughout the kingdom was carried out according to the theory of tenure. Those who actually occupied and used the great mass of English land were not owners of it but holders of derivative rights from the king or from the king’s tenants, and hence English land was concerned not with ownership and the rights and duties of owners but with tenure and the rights and duties of tenants. The concept of ownership simply did not come to into play.

 

This basic difference between Romanic ownership and the Anglo-American "estate" or "interest" in land can be illustrated by a simple metaphor. Romanic ownership can be thought of as a box, with the word "ownership" written on it. Whoever has the box is the "owner." In the case of complete, unencumbered ownership, the box contains certain rights, including that of use and occupancy, that to the fruits or income, and the power of alienation. The owner can, however, open the box and remove one or more such rights and transfer them to others. But, as long as he keeps the box, he still has the ownership, even if the box is empty. The contrast with the Anglo-American law of property is simple. There is no box. There are merely various sets of legal interests. One who has the fee simple absolute has the largest possible bundle of such sets of legal interests. When he conveys one or more of them to another person, a part of his bundle is gone.

 

This basic difference has several possible theoretical consequences. First, tenure seems to be a more flexible concept than ownership. Consequently, it might be expected that the number and variety of institutionalized interests in land will be greater in tenure than in an ownership property system. In short, improvisation is likely to be inhibited by the theory of ownership and encouraged by that of tenure.

 

The much greater variety of permissible future interests (vested and contingent remainders, executor interests, powers of appointment, reversions, rights of entry, possibilities of reverter) in the common law than in the civil law (where they really do not exist) supports this prediction. It is further supported by the existence of the trust and the concept of separate legal and equitable interests and by the distinction between security interests and beneficial interests in and, both found in the common law but not in the civil law.

 

 

 

Overview

 

The word ‘property’ has many dimensions and people are not usually capable of defining it without difficulty. As it is an underlying word for ‘Land Law’ we shall under this section attempt to define it and other affiliate terms such as real property, real estate and immovable property.

 

Objectives:

Having read this section, the readers would be able to:

  • Define property.
  • Identify the meaning and nature of several related but at times confusing words (property, real property, real estate), and
  • Define these terms in the context of Ethiopian ‘Land Law’.

 

1.2.1 The Concept of Property

 

The meaning of the term property varies, depending upon the context in which the word is used. In one sense, property means things-real or personal/movable, corporeal/immovable or incorporeal, and visible or invisible. But the word is also used to describe characteristics; a desk, for example, has unique properties of color, shape, and surface. In legal sense, property describes the relationship between people and things- that is, the right of a person to possess, use, or own things.

 

A wider definition of property as conceived in modern and even in medieval society, is fairly described by Hallowelln as a ''complex system of recognized rights and duties with reference to the control of valuable objects ... linked with basic economic processes ... validated by traditional beliefs, attitudes and values and sanctioned in custom and law.'' Four factors in this definition are variables. The persons who have property can differ in their social roles and status. The relationships which are the constituent rights, powers, privileges, and immunities of property can vary almost indefinitely. The objects as to which property is recognized can differ from the songs and magical formulas of a primitive people, to the land, corporate shares, or copyrights of today. The sanctions can vary from the belief that disease will lay low an offender to the highly complex machinery of law courts and sheriffs.

 

More specific definition of the legal meaning of property was given by the English jurist Sir William Blackstone as “the free use, enjoyment, and disposal of all his acquisition, without any control or diminution, save only by the laws of the land.” Black’s law dictionary added an important element to the above definition: an exchange value, or the ability to sell property is a critical factor for a thing to be a property. Concerning the importance of property in human life, Blackstone also observes: “there is nothing which so generally strikes the imagination, and engages the affection of mankind, as the right of property; or the sole and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of the right of any other individual in the universe.”

 

In Blackstone’s definition, the concept of general property under the common law does not differ substantially from its meaning under Roman law: “property in its nature is an unrestricted and exclusive right. Hence, it comprises in itself the right to dispose of substance of the thing in every legal way, to possess it, to use it, and to exclude every other person from interfering with it.” To be specific in Roman law, property was defined as follows: ius utendi et abutendi re sua, quatenus iuris ratio patitur, 'the right to use and abuse a thing, within the limits of the law' (Justinian, Code 4, 35, 21). The French Code Napoleon of 1804 in a similar manner defines ownership of property under article 544 as: the right to enjoy and dispose of property in the most absolute manner, provided that one does no use it in a manner prohibited by law or regulation.” Similarly, the 1960 Ethiopian civil code defines ownership right as follows:

 

Art. 1204.- Definition.

 

(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 the law.

Art. 1205. - Scope of right.

(1) Without prejudice to such restrictions as are prescribed by law, the owner may use his property and exploit it as he thinks fit.

(2) He may dispose of his property for consideration or gratuitously, inter vivos or mortis causa

 

In all cases whether during ancient times or in its modern conception, except for those personal chattels, the use and ownership of property (especially land) is limited by law for different land use purposes such as environmental, health, public good, town plan etc. See the details in the next chapters.

 

1.2.2 Property, Ownership, and the metaphor of Bundle of rights

 

One can see the definition given for property as confused with ownership. But what is ownership? Bryn Perrins in his book, Introduction to Land Law, defines property simply as “ownership.” The word is derived from the Latin proprius, meaning one’s own. My property is that which is my own, that which belongs to me. In its archaic means property signifies the corpus itself. But in the modern understanding of the concept property is law of ownership of the corpus and associated rights.

 

Hence ownership is a concept, an idea or the figment of the imagination. Leaving the jurisprudential hunt for final definition of the word it suffices at this point to define it as “right to assert that something is one’s own, and that it is a right which, in principle, may be asserted against all comers.” It is however important to explore briefly the content of the concept of ownership. In former times ownership was regarded as trinity of rights, described by Latin as utendi, fruendi, abutendi- a right of using, which implies exclusive use and excluding others from using it; enjoying the fruits, such as collecting fruits, rents, bank interests etc; and thirdly abusing, which signifies the destruction or in its constructive sense transferring the thing by way of sale, donation or inheritance.

 

Modern common law western treatises on property defined ownership as bundle of rights. This concept compares land ownership to bundle of sticks. Each stick in the bundle represents a separate right or interest inherent in the ownership. These individual rights can be separated from the bundle by sale, lease, mortgage, donation, or another means of transfer. The complete bundle of rights includes the following:

  • The right to sell an interest
  • The right to lease an interest and to occupy the property
  • The right to mortgage an interest
  • The right to give an interest away
  • The right to do none or all of these things

 

The Anglo-American concept of ownership, fee simple ownership, is equivalent to the ownership of the complete bundle of sticks. Each right has its own value and the owner can separately use or apply one right while leaving the others as they are.

 

1.2.3 Major Concepts: Real Property, Real Estate, and Immovable

 

According to Black’s Law Dictionary, Real estate means land and anything permanently affixed to the land, such as buildings, fences, and those things attached to the buildings, such as light fixtures, plumbing and heating fixtures, or other such terms which would be personal property if not attached. The term is generally synonymous with real property.

 

Under the same dictionary, the term real property is defined as land, and generally whatever is erected or growing upon or affixed to the land. Also rights issuing out of, annexed to, and exercisable within or about land.

 

Property law, in systems derived from English common law, is divided into personal and real property. Real property concerns itself with rights in rem, or relating to land. Personal property concerns itself with rights in personam, or relating to chattels. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights and obligations thereon. Hence, the difference in terminology has no basic difference in the types of property. In Ethiopia, the properties of land and any fixture to land are termed as immovable which are otherwise understood in England or the United States as real estate or real property. The writers may use these terms in this material to describe land interchangeably whenever necessary.

 

Land: in the law of real property, the term land is including the surface of the earth, the land beneath the surface to the center of the earth, and the air above. The term also includes property permanently affixed to the soil, such as water collected in wells, houses, and fences. The ownership of land may be classified according to the various types of interests raised from each and respective legal system.

 

What constitutes real property in Ethiopia?

 

Please read the following provisions carefully:

 

Art.: 1126. Various kinds of goods

All goods are movable or immovable.

 

Art. 1l30. Immovables

 Lands and buildings shall be deemed to be immovables.

 

Please also read the following provision from the Swedish Land Code.

 

Chapter 1,Section 1.Real property is land. This is divided into property units…..

 

Chapter 2, section 1. A property unit includes a building, conduit, fence and other facility constructed in or above ground for permanent use, standing trees and other vegetation, natural manure….

 

What do you understand from the reading of the above provisions?

In Ethiopia, lands and buildings together constitute an immovable property. In other words, lands and buildings are what immovables are in our law. We have already mentioned that in the Civil Law from which much of our civil law is said to have been derived, immovable property, i.e. land is real property. This is true of the Swedish law. It follows that contextually, in Ethiopia immovable property is real property, and as immovable is land and buildings, it follows that land and buildings are real property. In short, in Ethiopia, real property is both land and buildings, and not only land.

 

Therefore, in Civil Law and Sweden, real property is only land; building is simply part of the real property, i.e. land. Whereas in Ethiopia real property is land and buildings, as can be derived from Art.1130 of the Civil Code, building is not defined through land, i.e. building does not seem to be part of land unit.

 

This kind of approach under our law seems to bear problems of interpretation and application. For example, what constitutes a real property unit in Ethiopia? Does building include the land on which it is constructed? If so to what extent-only the part on which the building stands or some more part? On what basis do we decide this? Assume Kinde constructs a house on the land owned/possessed by Degu, is the house a real property/immovable in this case? Further assume Degu disposes of this plot of land to Semahegn, to whom does the building belong now-Kinde, Degu, or Semahegn?

 

It is not easy to solve such issues under our law given the definition for immovable/ real property as constituting both land and buildings independently. But such and other questions are easily solved under the definition given for real property/immovable in Civil Law countries such as Sweden.

 

Be that as it may, for the sake of consistency to our law, throughout this teaching material, when the term real property or real estate or immovable is used, it refers to land, or buildings, separately or both land and buildings. In other words, the term is not used to refer only to land and then buildings indirectly as it is the case, for example, in Sweden.

 

The relevance of maritime law to land-locked countries like Ethiopia has frequently been misunderstood. Some think the Maritime Code of 1960 is no more important since Ethiopia became a country without sea ports in the early 1990s. The myth underlying this misconception is that land-locked countries could not possibly engage in maritime transaction of any sort. A highlight on some core principles of the law of the sea –a branch of public international law –is crucial to understand that it is still legally possible for landlocked states to engage in sea trade. The most serious limitation has been economic incapacity, not legal incapacity as such.

As a matter of principle of international law, every nation has freedom of the high seas (a bundle of freedoms including freedom of navigation, freedom of overflight, fishing, scientific research and freedom to construct artificial islands, lay submarine cables, and pipelines). Apparently, these freedoms are not limited to coastal states. Land-locked states like ours are equally entitled to these freedoms. The question is how could land-locked states, which are not in principle precluded from the enjoyment of rights pertaining to the use of sea and sea resources, practically benefit from the universally recognized freedoms without access to outlets?

Traditionally, states without access (SWA) have endeavored to obtain the right of free access to the sea in order to practically enjoy freedom of the high seas and most importantly to participate in international trade. With this aim, many multilateral and bilateral agreements have been signed guaranteeing the right of transit of SWA through neighboring territories. There are many documents of public and private international law which guarantee access rights to landlocked states. Such documents include the United Nations Convention on the Law of the Sea (UNICLOS III), of 1982 (entered into force in 1994). UNICLOS grants right of access of landlocked countries to and from the sea and the freedom of transit. Article 3 of UNCLOS, for example, provides as follows:

Article 3

1.  In order to enjoy the freedom of the seas on equal terms with coastal States, States having no seacoast should have free access to the sea. To this end States situated between the sea and a State having no seacoast shall by common agreement with the latter and in conformity with existing international conventions accord:

a.  To the state having no seacoast, on a basis of reciprocity, free transit through their territory and

b.  To ships flying the flag of that state treatment equal to that accorded to their own ships, or to the ship of any other states, as regards access to seaports and the use of such ports.

In addition, the 1965 United Nations Convention on the Transit Trade of Land-Locked Countries and the General Agreement on Tariffs and Trade (in its Article V) and African Maritime Transport Charter of 1993, to which Ethiopia is a party, recognize the right of free access to the sea for landlocked Member States with, however, the proviso that they comply with the laws and regulations of the transit States.

Such international conventions have little effect on those nations that would have to grant the rights sought, i.e., transit right. As a result, the problem of access to sea has usually been solved through bilateral treaties between the individual nations concerned. Incidentally, it is also advisable for states without access to maintain smooth relations with neighbors over whose territory its goods must traverse.

As far as sea access to Ethiopian ships is concerned, Ethiopia has concluded Port Utilization Agreement with Djibouti and Sudan. Since road transport plays a significant role in the transit transport, Ethiopia has also concluded Road Transport Agreements with the above-mentioned neighboring states. However, currently Ethiopia mainly uses the Port of Djibouti.

Agreement on Port Utilization and the Transit of Goods towards Ethiopia, signed in April 2002, and subsequently ratified by both Ethiopian and Djiboutian parliaments, is based on the major United Nations conventions and the principles of free sea access (and transit) to the sea for landlocked countries. The agreement covers the various aspects of transit transport: port entry, customs, documentation, land transport, security along the corridor, facilities maintenance, approval procedures for public and private operators of both states that use the corridor, etc.

Djibouti International Autonomous Port (PAID) handles millions of tonnes annually, well over 50 per cent on behalf of Ethiopia. Since Djibouti does not have a merchant fleet, the PAID gives priority to berthing ships transporting goods to Ethiopia.  Since 2000, the Ethiopian customs has had an office within the port of Djibouti in order to carry out formalities for goods in transit to Ethiopia.  In addition, more favourable terms, for length of storage and rates, are granted to Ethiopians for operations in the port of Djibouti.  Ethiopian Shipping Lines, the only national flag carrier established in 1964, has had a monopoly of transport of goods coming from or going to Ethiopia. For goods in transit to Ethiopia (an average of 100,000 containers each year), over 70 per cent of handling is carried out by the Maritime Transit Services Enterprise (MTSE). As to the road transport –connecting Ethiopia’s inland to the Port of Djibouti –it is almost all undertaken by Ethiopian operators. Some 100,000 vehicles use the corridor from the port of Djibouti to Ethiopia annually since Ethiopia’s traffic moved from Eritrea to Djibouti in 1998.

The major piece of Ethiopia’s maritime legislation is the 1960 Maritime Code. With 371 articles, the code deals with many aspects of maritime affairs including contract of carriage under (1) charterparty and (2) bill of lading, maritime labour law, nationality and registration of ships, limitation of liability, marine insurance, general average, collisions, salvage and assistance, and also ship mortgage and maritime lien. The material sources of the law, according to Tsehai Wada, is “less known.” But, he remarks that the Code is substantially drawn from international conventions of maritime importance. Another writer, however, is of the opinion that the code is inspired by Continental (Civil Law) sources. In his article the Civil Law and Common Law Influences on the Developing Law of Ethiopia, J. Vanderlinden incidentally mentions the following: “The Commercial and Maritime Codes were drafted by …French Professors, Professor Escarra, and after his death, Professor Jauffret. They [the codes] are representative of the most recent developments in French commercial legal thought.” Despite divergent views, one can safely argue that the Maritime Code’s provisions bear similarity, in many instances, with the provisions of the then prominent conventions, including the Hague Rules on Bill of Lading of  1924, and hence, the later are the likely major material sources of the former.   

In sum, the unavailability of a seaport – though the most evident disadvantage for inland countries – has not completely dissuaded landlocked nations from taking to the sea. This is particularly the case with Ethiopia. Though land-locked, Ethiopia continues to own ships and engage in international maritime commerce. Hence, it is not odd for land-locked states to legislate a body of law concerning ships flying their flag and transactions involving them. Undeniably, however, there is some decline in importance of some of the provisions of our maritime legislation, particularly those provisions which assume the existence of sea port. None the less, this area of law has still a major role to play in the land-locked state owning merchant ships and handling 90 per cent of its import-export trade through sea transport.

Transportation of goods and passengers by water is one of the most ancient channels of commerce on record.This mode of transportation was and still is indispensable for international trade since ships are capable of carrying bulky goods which otherwise would not be carried. Rules governing relationships among participants of sea-transport have also been known since c.1st millennium BC.

Ancient maritime rules derived from the customs of the early Egyptians, Phoenicians and the Greeks who carried an extensive commerce in the Mediterranean Sea. The earliest maritime code is credited to the island of Rhodes which is said to have influenced Roman law. It is generally accepted that the earliest maritime laws were the Rhodian Sea Laws, which have been claimed to date from 900 B.C., but which more likely appeared in the form recognized today during the period from 500 to 300 B.C. These laws were recognized in the Mediterranean world as a method of providing predictable treatment of merchants and their vessels. The complexity and attention to detail found in the Rhodian Sea Laws demonstrated the sophistication of commerce and trade of Ancient Greece – a world of commerce, the center of which, Rhodes, was in a position to dictate terms for trade.

Although the decline of Greece and the rise of the Roman Empire did alter the influence of the Rhodian Sea Law, a uniform code based on the Rhodian Law remained and was recognized as essential to peaceful and profitable Mediterranean trade: the Mediterranean Sea was for more than one thousand years [300 B.C. to 1200 A.D.] only ruled by the Rhodian Law, although augmented with some additions by the Romans. Thus, the Digest of Justinian, dated 533 A.D., states the following regarding any controversy arising in the Mediterranean Sea: "This matter must be decided by the maritime law of the Rhodians, provided that no law of ours is opposed to it."

These laws which derived their essential elements from Rhodian customs were afterwards leveled up by Romans. There was a great enlargement of the application of the principles of the Roman law in the revival of commerce consequent upon the growth of the Italian republics and the great free cities of the Rhine and the Baltic Sea. Special tribunals were set up in the Mediterranean port towns to judge disputes arising among seafarers. This activity eventually led to the recording of individual judgments and the codification of customary rules by which courts become bound. Three noted codes of maritime law –whose principles were found in the Roman law, were formulated in Europe during the three centuries between A.D. 1000 and A.D. 1300.  One, Libre del Consolat de mar of Barcellona was adopted by the cities on the Mediterranean; the second, the Laws of Oleron prevailed in France and England; and the third, Laws of Wisby governed the great free cities of the Hanseatic League on the Baltic.

The oldest of these codes was Consolato del Mare, or Regulation of the Sea, prepared at Barcelona. It was a compilation of comprehensive rules for all maritime subjects. It, for example, dealt with ownership of vessels, the duties and responsibilities of the masters or captains thereof, duties of seamen and their wages, freight, salvage, jettison, average contribution, and the like. Libre del Consolat de mar of Barcellona and the Tablets of Amalfi, one prepared at the famous of Italian seaports, enjoyed authority far beyond the ports where they were promulgated. In essence, until the rise of modern nations, maritime law did not derive its force from territorial sovereigns but represented what was already conceived to be the customary law of the sea.

Eventually, as commerce from the   Mediterranean moved northward and westward, sea codes developed in northern European ports. Among the important medieval sea codes were the Laws of Wisby (a Baltic port), the Laws of Hansa Towns (a Germanic league), and the Laws of Oleron (a French island). The Consolato del Mare was inspirational in the preparation of these later codes. In particular, the Laws of Oleron, the second great code of maritime regulation, was inspired by the Consolato del Mare. These three codes are called the three arches upon which rests modern admiralty structure.

As could be understood from the discussion above, the earliest developments relating to maritime law occurred in areas belonging to what is now known as the Continental legal tradition. These developments contributed to the early admiralty law of England –the origin of the common law legal tradition and one of the major maritime states with rich tradition in shipping. The European admiralty doctrines were carried to the USA –another important shipping nation – through the English system of admiralty law, which initially was inspired by what have been termed the three arches of modern admiralty law –the Laws of Wisby, the Laws of Hansa Towns, and the Laws of Oleron.

Contemporary maritime law is a mixture of ancient doctrines and new at laws both national and international. Among the traditional principles of admiralty still in use are marine insurance, general average and salvage. The welfare of the seaman, the ancient concept of "maintenance and cure" are also still in use today. The main reason for the continuous use of ancient principles of law is the unchanging nature of basic hazards of seafaring. Since at least the end of the 19th century, however, naval architecture and cargo handling have changed in significant ways. The extensive use of crude oil carriers as well as carriers of liquefied natural gas has, for example, posed new hazards and questions of liability for oil pollution and damage to the marine ecology and the shorelines. As a result of this, modern maritime law consists of laws that are of historic origin and of recent development. Note also that not all of the original principles of maritime law still apply.

The earliest known maritime laws were uniform. According to one historian, the great value of the rules which had been developed for maritime trade lay in the fact that they had been "found by practice to be suitable to the needs of a community which knows no national boundaries –the international community of seafarers." This historical uniformity of early maritime laws declined with the growth of nationalism. However, maritime transactions have always been international in nature which most of the time involve individuals from different jurisdictions. International shipping is “a complex business, and its activities are conducted in a manner that often implicates the interest of several countries.” The complex international aspect of the transaction, on the one hand, and the fact that maritime law is national (than international), on the other, present different problems. The difference in domestic maritime legislations may, for example, make the outcome of the “international” transaction unpredictable to participants. Moreover, jurisdictional, choice-of-law, and forum non conveniens issues would be there.

Making the rules of maritime law universally uniform, once again understood, would alleviate most of the problems related to unpredictability and conflict of laws. This understanding has led to the revival in the nineteenth century of the ancient tendency to make rules relating to maritime transaction uniform globally. This effort was first started at the instigation of lawyers and commercial men such as those who founded the Comité Maritime International (CMI) and the national maritime law associations; and continues to grow under the aegis of the Intergovernmental Maritime Organization (IMO) and other United Nations affiliated organizations with the cooperation of experts in the private sector.

Founded in 1897, the International Maritime Committee or CMI   initiated uniformity among national maritime legislations of member countries. Among the conventions drafted by CMI were the Hague Rules (International Convention on Bill of Lading), and the Visby Amendments (amending the Hague Rules), the Salvage Convention and many others. Since 1958, many of CMI’s functions have been taken by the International Maritime Organization of the UNO. This organization has also continued the move towards uniform maritime laws. Many states adhered to this rules either by incorporation of the provisions in domestic laws or by implication of treaty obligations. Thus, now, we can speak of the relative uniformity of national maritime laws of different shipping states which may not be matched by the degree of uniformity attained in some other areas of law. The degree of harmonisation so far attained is not, however, satisfactory in so far as some areas are concerned. For example, there still exists differences in assessment of maritime claims.

The history of maritime law in Ethiopia had not been clear until the enactment of the 1960 Maritime Code. Though Ethiopia‘s maritime history dates as far back as the times of Axum, a parallel development of the laws relating to maritime trade was absent. It is only since 1960’s that Ethiopia witnessed a development of a comprehensive maritime legislation coupled with the resurgence of shipping trade after the establishment of the Ethiopian Shipping Lines SC (ESLSC). The 1960 Maritime Code is still the most important piece of legislation in the area.

Gilmore and Black, in their the Law of Admiralty, define maritime law as ‘’A corpus of rules, concepts and legal practices governing certain centrally important concerns of the business of carrying goods and passengers by water’’. On the other hand, William Tetley’s Glossary of Maritime Terms describes maritime law as ‘’a complete system of law, public and private, substantive and procedural, national and international’’. The famous legal dictionary – Black’s Law Dictionary, in its part, defines maritime law as ‘’the body of law governing marine commerce and navigation, the carriage at of persons and property, and marine affairs in general; the rules governing contract, tort and workers’ compensation claims or relating to commerce on or over water’’.

The definitions given above, though comprehensive, are not necessarily inclusive of all matters dealt under this specific area of law. While Tetley’s definition emphasizes how broad maritime law can be, the two other definitions concentrate on the central aspects of the law. A rather simpler but broad definition of maritime law would be: the branch of jurisprudence that governs ships and shipping. As the law of ships, it regulates the nationality, ownership and registration of vessels. As the law of shipping, it governs the relationship between private entities which operate vessels on the oceans. In other words, it governs maritime questions such as sea carriage, contract of affreightment, marine insurance, maritime lien and the like.  It is distinguished from another etymologically identical area of law –the law of the sea. The law of the sea is a branch of public international law which aims to regulate the relationship between states in respect of those areas of the sea and seabed subject to coastal state jurisdiction and beyond. Whereas, maritime law/admiralty law is  a body of private law that govern the legal relationships arising from the transportation of passengers and cargoes on the high seas and other navigable waters. The principal parties affected by maritime law are the crew, the ship-owner, the cargo owner, the charterer and the marine insurer. Generally, maritime law could be understood as a body of domestic law governing the relationships between parties engaged in maritime commerce.

In most jurisdictions, maritime law applies to seawater only. Shipping activities in interior waterways are usually governed by a separate set of rules. There are, however, some countries that extend the scope of their maritime law to shipping activities in interior water bodies. In Scandinavian countries, for example, maritime law applies to shipping activities in all water bodies, including lakes, rivers, and canals.

The scope of application of our Maritime Code is, like in most of the shipping nations, limited to shipping activities on seawaters only. These could be inferred from the general framework of the Code, particularly the preface. In the Preface to the 1960 Maritime Code of Ethiopia, it is stated that the codification of the Code was felt imperative with the return of Ethiopia’s ancient sea coast on the Red Sea and the subsequent expansion of Ethiopia’s maritime power.

The definition given to “ships” is also of some help in determining the scope of our Maritime Code. For the purpose of this Code, provides Art. 1, “a ship is …any seagoing vessel…” This definition is not inclusive of any other watercraft used as a means of transportation in any other water body. Thus, our Maritime Code is not the pertinent legislation that governs shipping activities of non-seagoing vessels.

Legislative provisions, other than that of the Maritime Code, are also indicative of this fact. For example, Art.563 of the Commercial Code excludes carriage of goods/persons in inland waterways from the ambit of carriage by sea, which is the concern of the Maritime Code (See Art. 565 of Com. Code).

From the foregoing discussion it is clear that maritime law is a domestic private law that, in most cases, aims to regulate shipping activities on seas. Though each nation’s maritime legislations have their own distinct features, the following remarks could be made on maritime laws in general:

1. International Nature

Although regulated to a large extent by national legislation, maritime law in almost all jurisdictions is clearly shaped by international influences, in particular international conventions. This is due to the fact that shipping by its very nature involves international relations. The ocean-going vessels flying the flag of a state operate in all waters throughout the world and sail from country to country. Vessels often are supplied and repaired in foreign ports. Cargo may be damaged or lost while at sea in the course of an international voyage or in a foreign port, and likewise seamen may be injured on the high seas or in the waters of foreign countries. Such background facilitated the development of common international usage and practice since antiquity. The common universal usage and practices were subsequently adopted by national laws. Maritime law is thus a specialized domestic law that cannot avoid international influences. This may in part be the reason why judges and lawyers who deal with maritime law consider themselves as specialists with an international background.

2.  Comprehensiveness

The second important characteristic of maritime law is its breadth. Maritime law is a complete legal system, just as the civil law and the common law are complete legal systems. Maritime law, incidentally, is much older than the common law and probably contemporaneous with the advent of the civil law. That maritime law is a complete legal system can be readily seen from its component parts. As noted by William Tetley, maritime law has had its own law of contract-- of sale (of ships), of service (towage), of lease (chartering), of carriage (of goods by sea), of insurance (marine insurance being the precursor of insurance ashore), of agency (ship chandlers), of pledge (bottomry and respondentia), of hire (of masters and seamen), of compensation for sickness and personal injury (maintenance and cure) and risk distribution (general average). It is and has been a national and an international law (probably the first private international law). It also has had its own public law and public international law. Maritime law has and has had, as well, its own courts and procedures from earliest times.

As will be seen in due time, maritime law seeks to regulate personal and property relationships as well as contractual and tortuous relationships. The comprehensiveness of the law can also be seen in its administrative and few criminal provisions. In short, maritime law is a comprehensive system of law concerning maritime matters – both public and private, with the later forming the major part.

3. Special Legal Jargons

The study of maritime law usually employs the use of complex jargons which, in most cases, are alien to other areas of law. Understanding the subject matter without first knowing such shipping terms may often be difficult.  The presence of different jargons peculiar to this area of law may well be attributable to its unique development. Early maritime law –the basis of modern maritime law –is distinguishable from the development of other areas of law. Though first developed in continental Europe, the law relating to shipping was, in origin, based on customs only- “custom and usage of the sea” .(See the next section for details)

Though the forthcoming discussions reveal many of these special jergons, we may tentatively note some of them here: charter party, maritime lien, general average, and salvage.

Charter party: A charter party is a contract of lease of a ship in whole or in part for a long or short period of time or for a particular voyage (William Tetley’s Glossary of Maritime Law Terms, 2nd Ed., 2004).

Maritime lien: A secured claim against a ship (and sometimes against cargo or bunkers) in respect of services provided to the vessel or damages done by it (Glossary of Maritime Law Terms, 2nd Ed., 2004).

General average: The monetary contribution required of ship-owners and cargo owners (or their respective insurers) in respect of general average expenditures and general average sacrifices. Cargo's claim for general average contributions against the ship is secured by either a maritime lien or a statutory right in rem depending on the jurisdiction concerned (Glossary of Maritime Law Terms, 2nd Ed., 2004).

Salvage: Rendering assistance to ships at distress. Rules awarding such assistance have long been prescribed in various maritime nations.

ይህ ሀላፊነት በእንግሊዝኛው /vicarious liability/ የሚባለው ነው፡፡ የተደነገገውም ከ2124 እስክ 2136 ባሉት ቁጥሮች ስር ነው፡፡ ሀላፊነትን የሚያስከትለው ተግባር የተፈፀመው በአንዱ ሰው ሲሆን ተጠያቂ የሚሆነው ግን ሌላ ሰው ነው፡፡ ሀላፊነት የሚያስከትለውን ተግባር የሚያከናውኑት ሦስት ዓይነት ሰዎች ናቸው፡፡ እነሱም አካለ መጠን ያላደረሰ ልጅ፣ ሠራተኛ እና ደራሲያን /ፀሐፊዎች/ /authors/ ናቸው፡፡ ሠራተኛ የሚለው የመንግስት ሹም ሠራተኛ ወይም  ሌሎች ሠራተኞች ሊመለከት ይችላል፡፡ ለአካለ መጠን ላልደረሱ ልጆች ተፈፃሚነት ያላቸው  ከቁጥር 2124 እና 2125 ሲሆኑ ለሠራተኛ ደግሞ ከቁጥር 2126 እስከ 2134 ያሉት ናቸው ስለደራሲ ደግሞ ቁጥር 2135 ይደነግጋል፡፡ ለአካለመጠን ላልደረሰ ልጅ ሀላፊ የሚሆኑት ወላጆችና ሌሎች ሲሆኑ ለሠራተኛ ደግሞ መንግስት ወይም አሠሪ ይሆናሉ፡፡ ለደራሲ ሀላፊ የሚሆነው አሳታሚው ነው፡፡ በመጨረሻም አንድ ነጥብ ግልፅ እናድርግ፡፡  ሀላፊነት የሚያስከትለውን ተግባር የፈፀሙ ሰዎች አላፊ  ሳይሆኑ ሌሎች ሀላፊ ይሆናሉ ማለት ተግባሩን የፈፀሙት በጭራሽ ተጠያቂ አይሆኑም ማለት አይደለም፡፡ ይህን ያህል ለመግቢያ ካልን ቀጥለን ነጥቦችን ዘርዘር አድርገን ለመመልከት እንሞክር፡፡

 

አካለ መጠን ያልደረሰ ልጅ ቁጥር /2124 /

 

በቅድሚያ አንድ ነጥብ ግለፅ አናድርግ በፍትሐብሔር ህግ ቁጥር 2124 መሠረት አካለመጠን ያልደረሰ ልጅ ሀላፈነትን የሚያስከትል ሥራ የሰራ እንደሆነ በፍትሐብሔር በኩል ለተሠራው ሥራ አላፊ የሚሆነው አባት ነው በማለት ቅድሚያ አባትን ያስቀምጠዋል፡፡ ለዚህ የሚሰጠው ምክንያት አባት የቤተሰብ አስተዳዳሪ መሆኑ ነው፡፡ ይህ ግን የኢፌዳሪ ህግ መንግስትንም ሆነ አዲሱን የተሻሻሉ የቤተሰብ ህጐችን የሚፃረር ነው፡፡ ለምሳሌ በኢፌዳሪ ህግ መንግስት አንቀፅ 34 /1/ መሠረት ባል አና ሚስት በጋብቻ ዘመን እኩል መብት ሲኖራቸው በተሻሻለው የቤተሰብ ህግ አንቀፅ 5ዐ  መሠረት በቤተሰብ አመራር ረገድ ባልና ሚስት እኩል መብት አላቸው፡፡ ይህም በመሆኑ ባልና ሚስት ልጆቻቸው በመልካም ስነምግባር እንዲታነፁ ተገቢ ትምህርት እንዲቀስሙና ኃላፊነት የሚሰማቸው ዜጐች ሆነው እንዲያድጐ ለማድረግ መጣር  አለባቸው፡፡

 

ስለሆነም አካለመጠን ያልደረሰ ልጅ ሀላፊ በሚሆንበት ጊዜ አባትና እናት እኩል ሀላፊ መሆን አለባቸው እንጂ በመጀመሪያ ደረጃ አባት በሁለተኛ ደረጃ እናት መሆን የለባቸውም፡፡ ስለዚህ ይህ የፍትሐብሔር ህግ ቁጥር ከኢፌዲሪ ሕገ መንግስትና ከተሻሻሉት የቤተሰብ ሕጐች አንፃር መቃኘት አለበት፡፡

 

ለአካለመጠን ያልደረሰ ልጅ ሀላፊ መሆንን በሚመለከት የኮመን ሎው አገሮችና የሲቪል ሎው አገሮች የተለያዩ አቋም አላቸው፡፡ በኮመን ሎው አገሮች ለአካለመጠን ላልደረሰ ልጅ አባትን ወይም እናትን ሀላፊ ለማድረግ በአባት ወይም በእናት በኩል ጥፋት መኖሩን ማረጋገጥን ይጠይቃል፡፡ በሲቪል ሎው አገሮች ግን አካለመጠን ያልደረሰ ልጅ ድርጊት ጉዳት ካደረሰ በወላጆች ዘንድ ጥፋቱ እንዳለ ይገመታል፡፡ ይህ ግምት ግን በተቃራኒ ማስረጃ ሊፈርስ የሚችል ግምት /ribufuble/ ነው፡፡

 

 

በእኛ ህግ ግን ሁለቱም አቋም ያለ ይመስላል፡፡ በቁጥር 2124 ስር አባት ወይም በ2125 /1/ ስር እናትን ሀላፊ ለማድረግ ጥፋትን ማረጋገጥ አያሰፈልግም፡፡ በቁጥር 2ዐ52 መሠረት ግን ወላጅን ወይም ሌላ አካለመጠን ያልደረሰ ልጅ አሳዳሪነት ወይም ጠባቂነት የተሰጠውን ሰው ሀላፊ ለማድረግ ጥፋትን ማረጋገጥ ያስፈልጋል፡፡

 

ሌላው ግልፅ መሆን ያለበት ነጥብ ደግሞ ወላጆች ወይም ሌሎች በቁጥር 2125 የተጠቀሱት ሰዎችና አካላት ሀላፊነት የፍትሐብሔር ሀላፊነት ብቻ ነው፡፡ አካለመጠን ያልደረሰው ልጅ የወንጀል ድርጊት ቢፈፅምና ቢረጋገጥበት ከ9 ዓመት በላይ ከሆነ በወንጀል ድርጊት ተጠያቂነቱ ወደ ሌሎች ሰዎች አይተላለፍም፡፡ በመጨረሻም ቁጥር 2124 አስመልክቶ በፍትሐብሔር ህግ አማርኛውና እንግሊዝኛ መሃል ልዩነት አለ፡፡

 

አማርኛው ልጁ ሀላፊነትን የሚያስከትል ሥራ የሰራ እንደሆነ በማለት የልጁ ሀላፊነት ከሥራ የሚመነጭ መሆኑን ሲደነግግ እንግሊዝኛው ግን /Where his minor child incurs a liability/ ስለሚል የልጁ ሀላፊነት ወይ ልጁ ጥፋተኛ በመሆኑ ሊመነጭ ይችላል ወይም ጥፋት ሳይኖርበት ጉዳት የሚያደርሱ ነገሮች ባለቤት በመሆኑ ሊመነጭ ይችላል፡፡ ሌሎች ለልጁ ሀላፊ ተብለው በህግ ይገለፁ እንጂ ልጁም ከሀላፊነት አያድንም፡፡

 

የመንግስት አላፊነት ቁጥር  /2126/

 

 

በቁጥር 2126 /1/ መሠረት የመንግስት ሹም ወይም ሠራተኛ በራሱ ጥፋት በሌላው ሰው ላይ ጉዳት ያደረሰ እንደሆነ ኪሣራውን ለመክፍል ይገደዳል፡፡ ይህ ጥፋት በሁለት አጋጣሚ ሊደረግ ይችላል፡፡ አንድ አጋጣሚ  የመንግስትን ሥራ ሲሠራ ሊሆን ይችላል፡፡ የግል ሥራውን ሲሠራም ሊሆን ይችላል፡፡ የመጀመሪያው ጥፋት የሥራ ጥፋት ሲሆን የተጐዳው ሰው ካሣ ከመንግስት ላይ ለመጠየቅ ይችላል፡፡ ሠራተኛው ያደረገው ጥፋት የግል ጥፋቱ የሆነ እንደሆነ ግን መንግስት ሀላፊነት አይኖርበትም //2126 /2/ እና /3// ፡፡

 

አንድ ጥፋት የሥራ ጥፋት ለመባል ምን ማሟላት እንዳለበት ቁጥር 2127 ስር ተዘርዝሯል፡፡

እነሱም፣

  1. ሥራው በስልጣኑ ልክ መሆን አለበት
  2. ቅን ልቦና መኖር አለበት
  3. ለሥራ ክፍል ይለዋል እንግሊዝኛው ግን /In the interest of the state/ ይለዋል፡፡

 

ከዚህ ውጭ በሆነው በማናቸውም ሌላ ጉዳይ ጥፋት ቢፊፅም ጥፋቱ እንደግል ጥፋት ሆኖ ይቆጠራል፡፡

 

ከላይ ያልናቸው ነጥቦችና ሀሳቦች በሙሉ ለክልል መንግስታት ሠራተኞችና ለህዝብ አገልግሎት በተቋቋሙ በህግ የሰውነት መብት በተሰጣቸው ድርጅቶች ሠራተኞችም ላይ ተፈፃሚ ይሆናሉ /2128/፡፡

 

የሰውነት  መብት  የተሰጣቸው  ድርጅቶች  አላፊነት ቁጥር  /2129/

 

እነዚህ ድርጅቶች  በእንግሊዝኛው  /Bodies corporate / የሚባሉ ናቸው  ምን  እንደሆኑ በፍትሐብሔር ሕግ ቁጥር 4ዐ4 ጀምሮ እስከ 482  ተደንግጓል፡፡ ቁጥር 457  ስር ለሠራተኞቻቸው  እነዚህ  የሰውነት መብት የተሰጣቸው  ድርጅቶች  ከውል  ውጭ  በሚደርስ አላፊነት እንዴት በአላፊነት ሊጠየቁ እንደሚችሉ  ተደንግጓል፡፡ ቁጥር  2129  እነዚሁኑ ሠራተኞች የማህበሩ  እንደራሲዎች ፣ ወኪሎች ወይም ደሞወዝተኞች  በማለት  ዘርዝሮ ያስቀምጣቸዋል፡፡

ቁጥር 457  እንደ ቁጥር 2129 እነዚህ ሠራተኞች  የተሰጣቸውን ሥራ በሚያከናውኑበት ጊዜ አላፊነት  የሚያስክትል ሥራ  የፈፀሙ  እንደሆነ በፍትሐብሔር የሚጠየቁት እነዚህ ማህበሮች  መሆናቸውን ይደነግጋል፡፡

 

በተመሳሳይ  ቁጥር 213ዐ አንድ ሠራተኛ  ሥራውን የሚሰራበት ጊዜ አላፊነትን የሚያስከትል ጥፋት  የሰራ እንደሆነ በፍትሐብሔር  በአላፊነት የሚጠየቀው አሰሪው  ነው በማለት ደንግጓል፡፡ ሥራውን በሚሠራበት ጊዜ  የሚለውንም ሐረግ 2132 ስር ሕጉ የሕሊና ግምት ወስዷል፡፡ በዚህ ቁጥር መሠረት ሠራተኛው  በሚሰራበት ቦታና  ጊዜ የጥፋት ተግባር የፈፀመ እንደሆነ ጉዳቱን ሥራውን በማከናወን ላይ  ሳለ እንደሰራው ይቆጠራል፡፡