The structure of property ownership and the common law/civil law divide

Michele Graziadei1

1. Comparative law scholarship and the problem of property ownership

Legal theory is often busy with the problem of how to conceive and justify, or criticise, the
institution of property (Dagan, 2014; Waldron, 1988; Xifaras, 2014). Comparative law, on the other
hand, explores the differences and the similarities existing among the various property regimes that
human societies have evolved. If we consider the distinction between common law and civil law
systems, the law of property is one of the fields where those differences are often considered more
pronounced (von Bar, 2014; Clarke and Godt, 2013; but see Chang and H. Smith, 2016). The
purpose of this chapter is to better clarify where some of such differences lie, rather than to provide
a new theory of property.
The approach outlined in this paper is critical, not descriptive. The aim is to unveil how certain
intellectual constructs work, and what type of work they do. The jurisdictions considered in the
following pages are few, but they are enough to highlight some problems and advance some ideas
that can help others to bring into focus salient questions about the fabric of contemporary property
law in both the civil law and the common law world. One of the themes of this chapter is that, as a
heuristic tool, that distinction must be used with some caution. The days in which one could really
think of a watertight separation between civil law and common law systems are gone for good with
respect to property law too. The reference to a ‘divide’ in the title of this chapter does not intend to
bring them back, but rather to invite critical thinking about a habit of mind, long taken for granted.
As hinted above, this chapter does not intend to provide a comparison of property laws focussing on
the place of property in the political and economic order. A systematic study dedicated to those
aspects would have required an in-depth examination of social policy and its implementation
through the law, which goes beyond the ambitions of this work. Themes such as public investment
in housing and social policies favouring housing, for example, would have necessarily been part of
it (see., e.g. Ball, 2014), together with excursions into the interplay between property, gender, and
race (with respect to the latter see, e.g., Singer, 2011; Brooks and Rose, 2013). The intention of the
author is more modest, namely to offer some critical comparative observations about basic patterns

1
I am greatly indebted to Lionel Smith for his comments on a previous version of this paper.

1
of thought structuring property law discourses. The hope is to set right a few confused arguments
about property law in comparative perspective.
The gist of the story set out in the following pages is simple. Many of the differences between the
common law and the civil law—even those that are often presented as distinctive of each legal
tradition—are explained by the narratives of property law elaborated over time by jurists and
lawyers. The legislature and courts have, of course, played major roles in the making of modern
property law at the national level. Nonetheless, many of the features of modern property law
systems that emerge as salient in jurisdictions like France, Germany, Italy, England, the US, or
Canada, are anchored to that particular formant of the law of property that is constituted by legal
scholarship and professional opinion. Obviously, property law consists of rules governing specific
issues that may, or may not, coincide across jurisdictional boundaries. Land registers are not the
same in France and in England, for example (Bell, 2002). Actions to recover property are different
in common law and civil law jurisdictions (van Erp and Akkermans, 2012; Gordley and Mattei,
1996; Ferreri, 1988). Nonetheless, the differences which comparative property law highlights in its
treatment of property in civil law and common law jurisdictions do not concern simply the set of
rules governing a precise property issue. What comes into discussion more broadly is the
overarching structure of property law, its taxonomy, its concepts and its terminology; in a single
word, its framing, by which social expectations and power relations become integrated into the legal
system.
The communicative barriers that exist in this respect are very high, as any student or scholar who
approaches the subject from a comparative standpoint learns by consulting the pertinent literature.
Still, perhaps not enough has been done to help the unaware to understand the nature of the
problem. Rather, formulaic pronouncements that pretend to cut across local representations of
property law are offered as substitutes for analysis. An example of such an approach is the use the
term ‘ownership’ to denote in a generic way the most extensive property right that a person may
possibly have in any particular legal system, whatever its concrete configuration is. Comparisons
must be based instead on the realization that there is nothing ‘out there’ that corresponds to this
construct, because property law encodes in various ways complex sets of social relationships and
expectations evolving over time with respect to tangible and intangibles in particular places. This
remains true even though in both legal traditions property law has often been framed by theories or
arguments made in the shadow of natural law thinking, that downplay the variety of wholly
legitimate property arrangements prevailing in particular environments or social and institutional
settings, and their refinements and change over time. That conception owes much to those theories,
while many of these arrangements were originated by custom.

2
It follows from what it has just been said that, in between particular social practices and the norms
governing them, there is a space occupied by discourses that represent those norms; and these
discourses embody a variety of intellectual frameworks. This discursive component of the law relies
on intellectual constructs that take centre stage whenever property law becomes the object of
comparative study. As shared packages of information and assumptions, these constructs do not
always work beyond the boundaries of the interpretative communities where they are accepted as
common currency. How these boundaries are constituted and maintained is therefore one of the
main themes of the following pages.

2. The tyranny of constructs

As mentioned above, at a very high level of generality, one can think of the right of ownership as a
set of relationships, granting to a person or to a group control over a specific resource vis à vis other
persons. This generic notion of ownership is largely shared across national boundaries, and by a
number of disciplines. The existence of this common ground is hardly surprising. In the history of
Western thought, theology and the philosophical and political discourse revolving in its orbit
provided the materials for constructing secular concepts that functioned across different disciplines.
In our case, these were the ideas that licensed property as a natural law institution by which humans
can appropriate things to their purposes. This ideology was soon countered by the notion of
ownership as a positive, rather than as natural right, created by a community through custom, or
convention, or by the State (Buckle, 2003; Renoux-Zagamé, 1987). This common intellectual
background explains why a lawyer, a philosopher, an economist, and a sociologist, may still carry
on a general conversation about property with a good chance of understanding each other, despite
the differences existing among these disciplines (Gambaro, 2011). In analytical terms, this
conversation is possible because their dialogue is a metadiscourse, in which the specific features of
particular proprietary regimes instantiated in specific communities or territories over certain objects
are mostly neglected (but see Lehavi, 2012). The notion of property ownership that is currently
taking shape in the field of international law, including international human rights law, partakes to
an extent this feature, insofar it aspires to transcend specific property regimes (Sprankling, 2014).
This is a move which is, of course, contested and contestable, from various points of view. In
particular, the assumption according to which a strong protection of property rights is precondition
for economic development cannot be supported unconditionally, because economic change often
involves the redistribution of property rights through governmental action, which regularly involves

3
involuntary transfers of property (on the general theme: Kennedy, 2011; Lamoreaux, 2001, Rose,
1988).

When property law is considered as an object of comparison between the common law and the civil
law traditions the object of discourse is different. It aims to understand how the law of property in
force in each jurisdiction is set out, explained, and framed by the legislature, the courts, by
government agencies, by academic scholarship, and by social actors and movements. At this level,
some glaring differences come out. For example, there is little doubt that, even if armed with an
excellent knowledge of English, an Italian lawyer would find it extremely difficult to penetrate the
meaning of the English Law of Property Act 1925. This Act uses categories and concepts that, with
a few exceptions (i.e. easements and servitudes), are unknown in Italy, or have only a modest
resemblance to civilian categories and concepts. On the other hand, any Italian lawyer who is
proficient in the foreign language can read with profit the property law provisions of the French or
the German civil code. Those codes make use of a stock of concepts that is intelligible, with only a
modest effort, on both sides of the Alps. Conversely, an English lawyer studying the property law
of Germany, Italy, France, or Spain, would probably be baffled by the rather limited field that the
law of property covers in these jurisdictions, by the lack of any reference to the central notion of
estate in land (Merryman, 1973), and by the lack of a full law trusts (the picture is evolving in this
respect: see, e.g. Graziadei et al., 2005; L. Smith, 2012; L. Smith, 2013).
As far as the language of the law is concerned, the frequent lack of correspondence of key concepts
in the field of property law, as between the common law and the civil law world, means that the
translation of the linguistic expressions relating to such concepts from the source language of one
(common law) jurisdiction to the target language of the another (civil law) jurisdiction often meets
serious obstacles (Nicholas, 1979). These obstacles can nonetheless be overcome through different
techniques, for example by periphrasis, or by introducing neologisms (usually in the form of
calques). An example of the latter technique is provided by the Legal Dictionary of Property in
Canada (Des Ormeaux and Lessard, 2009). This is a bilingual and bisystemic tool to interpret
legislative and judicial texts relating to Canadian federal law, a source expressing itself with equal
authority in both official languages (French and English). This translation tool attests, for example,
the following equivalents for some terms of the common law:

defeasible estate domaine anéantissable

estate in reversion domaine en reversion
vested interest intérêt dévolu

4
Each of the terms in the right column of this table is a calque, denoting the same meaning of the
corresponding English term. On the other hand, working the other way around, namely performing
the task of translating civilian concepts into English, is usually less demanding. Over the years, a
constant flow of translations has enriched the English vocabulary with terms corresponding to the
nomenclature of civilian property rights and property relations. Roman law has been repeatedly
translated into English both for both practical and pedagogical purposes, and the complex history of
the language of the law in England opened up various possibilities to English lawyers in the
formative years of the common law (Baker, 1997, McSweeney, 2012). In Canada, for example,
there has always been an English discourse of Quebec civil law, albeit in the minority in
judgements and in legal doctrine.2 Quebec’s civil codes, the first promulgated in 1866 and the
current one in 1994, are bilingual. This English discourse is not generally a common law English
discourse; it uses terms that common lawyers would consider foreign, so that the sentence ‘The
mandatary radiated the hypothec’ makes perfect sense in Quebec, although a common lawyer might
not understand it. Translators who undertake the task to convey into English the meaning of
property law norms rooted in the civilian tradition can often rely on a rich terminological corpus to
render most of the language of the civil codes in property matters. The language of the law in mixed
jurisdictions provides similar terminological foundations, and the publication of unofficial
translations into English of the Civil Codes of many European countries (e.g. France, Germany,
Italy, The Netherlands) and of commentaries and comparative works more generally has expanded
the possibilities of translation in this area of the law. To be sure, these translations are intelligible to
anglophones only to the extent that the underlying civilian property ontologies are known at least in
outline. Without that knowledge, the information that is encoded in terms of art, such as usufruct,
emphyteusis, or hypothec, is lost. Note, however, that in multilingual contexts the common law
terminology can be used in every day interactions as well as in legal documents to refer to rights
regulated by the civil code, showing that a certain degree of hybridity is not only acceptable, but is
the rule of the game (Kasirer, 1988).

The crucial point for the purposes of this chapter is that, to a great extent, the civil law and common
law constructs reflect different property law ontologies. These differences, however, are not
distributed uniformly across the entire law of property.
Some parts of the law of property are structured through concepts and distinctions that have the
same broad foundations in common law and civil law jurisdictions, and therefore have cross-border
2
This terminology is most notably captured in the English versions of the bilingual dictionaries of the Paul-André
Crépeau Centre for Private and Comparative Law.

5
validity as a means of communication, even though the specific rules adopted in each jurisdictions
may still be different. Original modes of acquisition of property, such as occupancy,3 specification,
confusion and commixtion,4 are pertinent illustrations of the transjurisdictional validity of certain
property law categories and of the congruence of the corresponding terminology. This validity is an
example of the tenacity of the form, given that these concepts are applied to different social and
economic problems in different contexts. Commenting on the English law relating to original modes
of acquisition other than finding (inventio), Duncan Sheehan goes as far as to write that they “…are
highly underdeveloped areas of English law, where the vocabulary is mostly borrowed from Roman
law, largely by taking the Roman term and adding an ‘n’ to the end.”. (Sheehan, 2011: 26). The
point is well taken: the relevant rules are discussed in both legal traditions by having recourse to the
same overarching intellectual framework, although the specific rules that come to be applied may
be different from those of the Roman law, or across the jurisdictions compared. The same is true for
other areas of the law as well, where both traditions look to Roman law for concepts and rules- that
is, for intellectual structure. Examples include the law of easements (Seebo, 2005; Kagan, 1951),5
the law of water rights (Getzler, 2004), and aspects of the law relating to wild or fugacious
animals.6
In other cases, the terminological and conceptual barriers that hinder cross-border communication
in relation to property law have been brought down or at least substantially lowered by comparative
law research. This is the case, for example, with respect to the rules concerning the transfer of
movables (Sacco, 1979; van Vliet, 2011), land registration and title insurance (e.g.: Garro, 2004;
Cámara-Lapuente, 2005), condominiums (van der Merwe, 2015). Comparative law research on
these aspects is ongoing. European integration has brought with it a degree of integration in this
area of the law too, either through EU Law, or through European human rights law (see., eg. van
Erp, 2009; Sparkes 2007, Caruso 2004). In some fields, commercial practices developed in
particular sectors of the property market—like timesharing—show the interoperability of different
property laws (Sparkes, 2007: 247 ff.). Fundamentally, however, the development of a common
frame of analysis for the core of property law, namely the shape of the entitlements that delineate
the grammar of property in civilian and common law jurisdictions, is still a real challenge (Mattei,
2000; Sparkes 2007; van Erp, 2008; H. Smith 2012; van der Merwe and Verbecke, 2012; Chang
and H. Smith, 2013; van Erp and Akkermans 2012; von Bar, 2015).

3
E.g. Pierson v Post 3 Caines 175 (1805).
4
E.g. Indian Oil Corp Ltd v Greenstone Shipping Co. SA (Panama) (The Ypatianna) [1988] Q.B. 345 (on the
differences between the Roman and the English approach: Birks, 1998; Hickey, 2003).
5
See e.g. Re Ellenborough Park [1956] Ch. 131.
6
Pierson v Post 3 Caines 175 (1805); Kearry v Pattinson [1939] KB 471 (CA) (bees).

6
3. A first mismatch: the ontology of ownership and estate, and their genealogy

A classical move to begin comparing the law of property of common law and civil law jurisdictions
is to bring into focus the different genealogy of the respective property regimes. Under this
approach, the historical legacy of the Roman law and its notion of dominium was the cornerstone of
codified regimes of property law, while the common law was wholly innocent of any system of
absolute property rights in land, tracing its origins to the feudal system of government that was put
into effect in England after the Norman Conquest. These alternative genealogies are accordingly
inscribed in the key concepts that feature in any treatment of the law of property in civil law and in
common law jurisdictions, namely ownership and estate (Merryman, 1973). This account reflects
the orthodox, and wholly plausible, narration of property law by many distinguished academic
works on the law (Burn and Cartwright, 2011; van Erp and Akkermans, 2012).
Nonetheless, the task of comparative law is to challenge rather than to confirm the orthodoxy.
When offered the line that feudalism and the Roman law are the essential keys to penetrate the
structure of property law across different jurisdictions, such as, for example, England and France, or
Ireland and Germany, one should consider what alternatives are available to understand the
conceptual organisation of property law is organised in common law and civil law jurisdictions. At
this point, the logical structure of the concepts involved in the framing of property law in civil law
and common law jurisdictions deserves a closer look.

To put it in the simplest terms, civilian systems start from an individual’s powers and prerogatives
over an object of property, which is, in the paradigmatic case, a tangible thing. In relation to land,
which is the most durable oject of the right of ownership, the common law focuses instead on the
temporal dimensions of property relationships, leaving to a great extent implicit what they actually
involve in terms powers and prerogatives, to the point that these must be gleaned only indirectly
(van Erp and Akkermans, 2012: 302 ff.).7

When property law is approached from this angle, what emerges is the key distinction between a
first class of property concepts centred on the temporal dimension of the relationships involving a
resource, and a second class of property concepts that denote instead the powers and prerogatives
granted to the resource holder. The concept of ownership in the civil codes is of the second kind: it
aims to capture the nature of ownership by prescribing what an owner can do with an asset. The

7
As Gambaro (2011: 214) puts it, ‘ontological approaches [to property] appear to be largely preferred in Europe, while
the relationship approach has deeply influenced modern U.S. experience’. The confrontation is actually between two
different ontologies of property law.

7
definition of ownership given in Article 544 of the French civil code is paradigmatic in this respect.
This article omits any reference to the duration of the right, or to its temporal dimensions, and spells
out instead the essence of the faculties and powers of the owner in the following way:

Ownership is the right to enjoy and dispose of things in the most absolute manner, provided
they are not used in a way prohibited by statutes or regulations.8

A century later, the German Civil code, §903, gives a more synthetic definition of ownership,
focussing on the powers and immunities of the owner, and on the right to exclude, but that
definition too omits any reference to the element of time:

The owner of a thing may, to the extent that a statute or third-party rights do not conflict
with this, deal with the thing at his discretion and exclude others from every influence.9

On the other hand, in the common law relating to land, it is the temporal dimension of the property
relationship stands out as the salient feature of property holding. This is well brought out by the
classical definition of an estate in fee simple given in Walsingham’s Case:10

The land itself is one thing, and the estate in the land is another thing, for an estate in the
land is a time in the land, or land for a time, and there are diversities of estates which are no
more than diversities of time, for he who has a fee simple in land has a time in the land
without end or the land for time without end.

From the civilian perspective, what is striking here is what is missing. This specification of the
notion of estate omits any description of what the holder of a fee simple estate can do with the land.
Even today, one can peruse the English Law of Property Act 1925, or similar legislation passed in
other common law jurisdictions to reform the law of property (such as the Irish Land and
Conveyancing Law Reform Act 2009) without learning more in this respect.11 One has to turn to
jurisprudence to learn about the substance of the rights in question (Honoré, 1961). The focus on the
temporal dimension of the property relationship has important consequences in terms of
representation of the common law’s future entitlements to land as future entities with a currently
existing value. As Harry Lawson (1958: 66) aptly put it:

8
This is the semi-official translation available at: www.legifrance.gouv.fr .
9
This is the semi-official translation available at: http://www.gesetze-im-internet.de/englisch_bgb/ .
10
(1573) 2 Plowd 547, [1573] EWHC KB J99, 75 ER 805.
11
Although of course the Law of Property Act 1925 was never intended to restate the law of property, only to amend
aspects of it. As Rudden (1994: 81) quipped, the English ‘…cannot learn the law of property from the Law of Property
Act.’

8
 …the essential parts of the specification were that the estate should represent the temporal
aspect of the land - as it were a fourth dimension - that it should be divisible within that
dimension in respect of time according to a coherent set of rules, but that the whole of that
dimension, the estate, should be regarded as existing at the present moment so that slices of
the estate representing rights to successive holdings of the land should be regarded as
present estates coexisting at the same time.

These are therefore two different - apparently non communicating - ontologies of property law.
They each put on the map certain elements of property relationships, but leave other elements in the
shadows. The question for the comparatist is whether an integrated map of the elements populating
each class of property relations can eventually be drawn. More often than not, this general question
is not squarely addressed by the literature. This literature provides helpful partial answers to more
specific questions, such as how property is acquired and transferred in civil law and common law
jurisdictions, or what rules govern conflicting land rights in these jurisdictions, but no complete
answer yet to the general problem highlighted above, namely how to bring the two ontologies of
property law into conversation. The promising lines of research going in this direction, concern the
numerus clausus of property rights, and the right to exclude as a key feature of property rights, as
well as the doctrines, techniques, and practices balancing or countering their effects, which
effectively provide a mix of property regimes (Ellickson, 1993: 2010).
To advance the state of the art, the first task is to provide guidance about where to look to build
such an integrated treatment of property law. Each map could be enriched, by integrating into the
picture those elements that are usually left aside, are not expressed, are neglected, marginalised, or
expressed only in different fields of the law. Only after this is done can one begin to see the whole
picture. To give an idea of the work which is required in this respect, consider the following
examples.

As mentioned above, the French civil code, like many other civil codes, defines the right of the
owner in terms of the right to use and enjoy the thing owned, and the power to dispose of one’s
rights. As the code makes clear (arts 546 ff.), the right of enjoyment includes the right to take the
products of property, which are described in the code as ‘fruits’. It would be surprising if the
problems that are tackled by enacting similar provisions had no parallel in common law
jurisdictions. Nonetheless, these rules are not prominent in the treatment of property relations in
common law jurisdictions. They are not presented in a coordinated way in textbooks on property
law written in England, or in other parts of the common law world. The marginality of the subject
of fruits is a matter of interest in itself, because it flows from the choice not to describe property
rights by trying to specify their contents in terms of powers of the right holder over the assets in

9
question. Nonetheless the practical problems that the civil code norms on ‘fruits’ address are by no
means unknown in England, as well as in other common law jurisdictions. Such rules can be found
by digging deeper. They are salient when the property interest which is being described is limited in
time. In such a case, it is crucial to establish how to divide the fruits between holders of successive
property rights in the asset that generates fruits (Graziadei, 2002; Macdonald 2008).

In the same vein, in civil law jurisdictions certain norms are typically discussed under the definition
of each type of entitlement, under the heading of ‘abusus’, namely an owner’s right to transform or
destroy the object of property, and the corresponding limits imposed upon an usufructuary. In the
common law, these norms are usually brought together under the heading of ‘waste’. Waste as such
is usually a wrong, but the liability for waste indirectly defines what the holder of a property can or
cannot do with it. In English law, it is vain to look for such rules under the definition of each type of
estate.12 In other words, one must study the law of waste to find out what abusus is in a common
law jurisdiction. This is why the law of waste is nowadays mostly examined through the lenses of
property law, rather than by those provided by the law of torts. A similar transformation concerns
the rules imposing limits on land resulting from the property interests of another. In some
jurisdictions they are considered to be part of the law of property, as in Germany or in Italy; in
others they sit across the boundaries of tort and property law as in France, England, the US
(Gordley, 2014). In all, they moderate the claims based on an unreconstructed right to exclude
(Freyfogle, 2007; Gordley, 2006; Dagan, 2011).
Quite often, the same concepts may be used to delineate the structure of property law in different
jurisdictions, even if the rules enforced in those jurisdictions are not the same. For example, several
US states rejected or transformed the English common law of waste, to respond to different
geographical, socio-economic, and political concerns (Horwitz, 1979; Sprankling, 1996; Purdy,
2006; Rudolph, 2015). Nonetheless, since the concepts involved in the discussion of the pertinent
rules remain the same across the common law world, the difference among the rules in force in each
jurisdiction are manageable in terms of finding a common ground to discuss the law in each place.
Of course, examples could be given in the other direction. In relation to land, the common law of
property starts from the temporal dimensions of property rights, leaving in the background the
prerogatives of the right holder. The definition of ownership in the French code, set out above,
makes no reference to duration; more generally, the temporal dimensions of various property rights
are not always clearly spelled out in the codal texts. It is left to doctrine, that is, legal scholarship, to

12
Interestingly, the approach may be different in other jurisdictions, that did not need or want the extensive English
reforms of 1925. Canadian books, for example (Oosterhoff and Rayner, 1985; Ziff, 2014), include a discussion of the
prerogatives attached to limited legal estates (the main one being the life estate), along with their temporal dimensions.

10
announce that civilian ownership is always, in principle, perpetual; while lesser rights must always
(real servitudes apart) be temporary (Cantin Cumyn, 1988; Emerich, 2015).
The point that the intellectual foundations of property law in civilian and common law jurisdictions
lie in different ontologies, namely in different conceptual maps to the field, has wide implications.
Property rights serve different functions. One of them is to permit the storage of value over time, by
allowing investments in durable assets. Land was once the principal asset that served this function.
Today investments in land and in other tangible assets remain important, but, intangibles, such as
company shares, bonds, claims, patents, and so on, make up the greatest part of modern wealth.
This circumstance explains why the time-based ontology, and the content-based ontology which are
characteristic of the civil law and common law property regimes are now projected on a different
plane, governing as well the holding of intangibles such as company shares, claims and patents
(Rudden, 1994). Today, one can therefore have, for example, the usufruct of a portfolio of company
shares, or a life estate over company shares included in a trust fund. Passing into intangibles
requires us to consider two things. The first is the debate regarding whether the conceptual
apparatus of property is even appropriate. One person says that both tangibles and intangibles can
be ‘owned’; the opponent says that there is a fundamental distinction between owning, and merely
being owed, and the former is the law of property, and the latter is the law of obligations. The other
is the law of trusts. This institution proved to be remarkably well-adapted to the rise not only of
intangible wealth, but of wealth seen as abstract value, rather than as being locked up in particular
assets (Rudden, 1994).
Confronted with this scenario, purists may object that the rules governing rights over, e.g.,
company shares cannot be the same as those governing rights over land.13 In a sense, this is
obviously correct. Large tracts of property law are applicable to tangible objects only, possibly to
tangibles possessing certain specific physical features. Thinking about the transfer of property
rights, for example, one cannot hand over a share in a racehorse, as it if were a ring.14 And surely it
makes no sense to discuss how to apply the rules on conflicting land uses to company bonds. But
when company shares or patents are made the object of a usufruct or of a life estate the idea is to
selectively appropriate the ontology which was first tested with respect to tangibles to think about
how to deal with the value that these objects incorporate or yield over time (Rudden, 1994).
Whether all of the specific rules applicable to tangibles (and in particular to land) are actually

13
In England and in other common law jurisdictions the purist’s argument goes hand in hand with the notion that theory
of estates was applicable to land only, because only land could be the object of a feudal grant. The exception to this was
the creation of limited property rights over goods under the testamentary jurisdiction of the church. But the orthodoxy
could be turned upside down, for example by holding that company shares were land, when the company was investing
in land (Rudden, 1985).
14
Cochrane v Moore (1880) 25 Q.B.D. 57.

11
appropriate for governing different kinds of investments is another question, of course. Answers
must be clearly found on a case by case basis, without abusing the logic of the initial move. The
interesting point is that over time, the tendency to conceive every kind of asset as an object in which
value can be stored, has been handled by analogical application of property law even when the
wealth in question is itself in the form of an obligation.

4. Fragmentation of Ownership: The Language Trap

The comparative study of property law across civil law and common law jurisdictions meets a
second stumbling block on a different plane too. Consider the following hypothetical statement
relating to the law of property of a fictional civil law jurisdiction (‘Civilopia’): 15

As is well known, [Civilopia] has a civil law system and its property law is thoroughly
Roman. The property law of [Civilopia] is entirely civil in character. The distinction
between real rights and personal rights is strictly observed. There is a numerus clausus of
real rights. The real right of ownership is indivisible. And there is no place for the
distinction of English law between law and equity, and between legal ownership and
equitable ownership.

Or consider what a recent research report (Schmidt et al., 2005: 12) produced at the European
University Institute has to say on the same point:

In the continental systems, there is but one all encompassing ownership right. Ownership
can be held jointly; however it cannot be split into different ownership rights.

The not-so-hidden message in texts like these is that civilian systems are innocent of the tendency to
allow the fragmentation of ownership that prevails in the common law world: a tendency celebrated
by so many textbooks on the law of property published in common law jurisdictions that any
citation on this point is superfluous. The view that common law systems subscribe to a ‘bundle of
rights’ notion of property, allowing for a much more flexible approach to property, while civilian
systems opt for a unitary, indivisible notion of property ownership, reflects the same opposition.
This provides yet another example of radically different language with respect to property (see, e.g.:
Clarke and Godt, 2013). But what lies beyond this language? When an intricate story is told,
checking the language in which it is framed is a salutary step (Gambaro, 2011). The language in

15
The quotation is adapted from Cooke (2003: 123) who was referring to the law of Scotland.

12
question may obscure certain features of the relevant facts, and thus reveal only partial, half-truths,
providing an invitation to make some unthinking - but pervasive - assumptions about the respective
property regimes. The productive way to unveil what lies beyond this language is to turn to some
basic facts.

By the late eighteenth century, on both sides of the Channel, rights in land were subject to excessive
fragmentation, which generated a insecurity of titles. The law was so complicated, and so out of
touch with the economy of a commercial society, due to its excessive fragmentation, and the
consequent insecurity of titles, that the whole system of property law needed reform.
In England, after prolonged debates, the reform process led to a series of nineteenth century acts
culminating in the Settled Land Act 1882, and then to the more comprehensive land law legislation
enacted in the first quarter of the twentieth century, introducing land registration (Anderson, 1992;
Anderson, 2010). What that legislation achieved will be further considered in a following section of
this chapter; suffice here to say that as a consequence of those reforms the law strictly limits the
number of estates and interests in land that are capable of binding everybody (English Law of
Property Act 1925, s. 2). This is done through mandatory rules that are in certain cases stricter than
the rules prevailing in many civil law jurisdictions, for example with respect to co-ownership.

In many of the countries of continental Europe, the process of reform that was needed to align
property law with the tenets of a market economy was carried out through the codification of
property law. In France, this was a chapter in the history of the Revolution and of the consolidation
of the Napoleonic Regime (for a discussion of the economic effects of the reform: Rosenthal, 1992).
The reform, which the Civil code sanctioned, abolished a good deal of the law of property and of
inheritance that was in force throughout Europe during the ancien regime, as the social and
economic structures of that regime were buried. Although in these countries there were no Courts of
Equity, and no theory of equitable estates and interests, forms of fragmented ownership were hardly
unknown under the ancien regime. Dynastic entails and fideicommissa were commonly used to
transmit family fortunes through the generations. These property forms were dismantled either by
outright legislative prohibition, or, as in Germany, by prohibitions upon the creation of new
arrangements serving similar purposes, which accompanied the entry into force of the modern civil
codes. Innovation concerned not only the substance of the rules in force. In Germany, for example,
the conceptual methods adopted by the law professors commenting on the Roman law sources that
at the time constituted the common law of Germany rendered it impermissible to speak of ‘divided
ownership’ with respect to lesser property forms like the usufruct. The notion of divided ownership

13
was thus criticised as a logical error, smacking too strongly of the ancien regime (Jahr, 1984, on the
different case of Austria: Pichler, 1986). In other parts of Europe, however, no such revulsion
against similar language ever matured. French lawyers to this day quite often speak of
démembrements de la propriété to list or to discuss those real rights that are admitted under the
code, such as usufruct, emphyteusis, and so on (see, e.g. Terré-Simler, 2014, §50). Jurisdictions that
adopt the French approach in this matter follow suit, and still conceive lesser real rights as forms of
fragmented ownership (Yiannopoulos, 1968). German lawyers would object to similar language, for
purely conceptual reasons, and speak instead in terms of encumbrances on ownership. To be sure,
the types of property right recognised in France closely resemble those that are also recognised in
Germany, and in France too the law governing the dynastic transmission of property which
prevailed under the old regime is gone. New types of property interest, in France like in Germany,
and in other civilian jurisdictions, are admitted only incrementally, showing that the numerus
clausus of real rights is currently enforced without completely closing the door to new
developments.

Today the numerus clausus principle prevents the creation of radically new property rights both in
common law and in civil law jurisdictions (for more on this: see Akkermans, ch. 5 in this book).
Nonetheless, the linguistic habits prevailing in these jurisdictions are strikingly more discordant
than the respective rules. Those habits portray two worlds with opposite features, namely a world
where property rights can be split, shuffled, and redistributed without much trouble, and a world
where similar operations are strictly limited. These widely different narratives contain a grain of
truth, of course. Common law courts can recognise new property rights by laying down new
precedents, while in principle courts in civil law jurisdictions have no corresponding power
(although they too sometimes manage to create property rights incrementally). The single judgment
by a common law court that introduces a new right in rem licences the idea of a (more) malleable
legal order, which can easily generate new interests in rem. The reality is that this judicial power in
common law jurisdictions is exercised sparingly and with the greatest caution, precisely because the
introduction of new rights in rem inevitably limits the liberty of others. An economist might say this
is because they create new externalities (Singer, 2008), while a jurist might put the point in terms of
the generation of previously unavailable remedies (Swadling, 2000).

The rise of the regulatory state, the development of complex networks of economic relationships in
advanced economies, and the critique of legal formalism, have produced in all industrialised
countries a tendency to consider the institution of property as a peculiar form of regulation of the

14
economy, which is one of the missions of the State in the contemporary age. The fortune of the
bundle of rights metaphor has accordingly been on the rise since the advent of the regulatory state.
But the process of differentiation of property forms that this analysis demands is not peculiar to the
US legal system, where the metaphor of the bundle of rights has taken root, or to other common law
jurisdictions, that are familiar with it. It is common to the economy of all industrialised, advanced
economies, and it has left its traces in the Constitutions of several of these countries. Nonetheless,
the technical language of property law in many civilian systems is still strongly wedded to the
language of the civil codes. The civil codes were not written to capture these dimensions of modern
economic life, but relied on a much simpler assumption. The leading idea of the codifiers was that,
by imposing the concentration of property powers and prerogatives in the owner, the law would
provide the best incentives to economic development through the push thus given to self-interested
action. These divergent narratives create the impression of an incommensurable distance between
the way property law is understood in the civil law and in the common law tradition, although the
trend of property law in both legal traditions highlights a similar long-term agglomerative tendency
(Donahue, 1980).

The predisposition that originated that impression is, however, now giving way to a different view
of the matter. The view that the bundle of rights metaphor is helpful to understand property as a
legal concept is now contested: because it explains everything, it actually explains nothing. In the
words of Penner in a seminal article (Penner, 1995: 714) ‘…this “dominant paradigm” is really no
explanatory model at all, but represents the absence of one. “Property is a bundle of rights” is little
more than a slogan.’ Many now emphasise the need to abandon the metaphor, to support the view
that the law of property law is, first and foremost, a law of things (H. Smith, 2012; see Ellickson,
2011; Barron, 2013). The pendulum of scholarly opinion on this matter is thus swinging back. This
does not necessarily mean that the operative rules concerning property issues will change
(Schroeder, 1994: 243; Mossoff, 2011), but it means that the discursive frames used to approach
property law issues are more easily brought into dialogue. The current tendency to give prominence
to the right to exclude in the definition of the structure of property rights by a few scholarly works
reflects the same trend. A separate question is what these different discursive habits actually relate
to in terms of property rules. Before exploring the point, it is useful to take a critical look at the
historical narrative regularly invoked to explain how different notions of property correlate to
different historical paths to modernity. This examination points to differences that are more subtle
and more interesting than those highlighted by the conventional wisdom (see below, Section 6).

15
5. An Intermezzo: The Fascination of History

In the study of law: ‘a page of history is worth a volume of logic’.16 The comparative study of
property law seems to vindicate the truth of this famous assertion. Many comparative works on the
structure of the law of property highlight the alternative historical paths leading to the formation of
modern property law in common law and civil law jurisdictions as a key to illuminating their main
differences.
On the continent the revolutionary movement leading to the abolition of feudalism that goes back to
the French revolution left its mark on the making of modern property law. England did not
experience anything similar. This is why in England (and in all the countries where the common
law arrived) feudalism passed on its legacy to the contemporary scene, in terms of legal conceptions
relating to property in land. In continental Europe, on the other hand, the law of property was
eventually reformulated by restoring the Roman idea of dominium, and of absolute, indivisible
ownership, against feudal notions of property relationships that in the middle ages had infiltrated
the Roman law (Whitman, 1990: 165 ff.). Although often qualified by caveats and warnings, many
first-rate comparative discussions of property law present this narrative as a key to understanding
why the language and the structure of the law are cast in different moulds here and there (see, e.g.:
van Erp: 2009).

Even as a first help guide to the comparison, the picture thus sketched in so many learned works is,
however, far from complete. In the good old days of feudalism, the material basis of the political
relationships originating from feudal tenure did not embrace all kind of assets and relationships.
Those assets that did not belong to the world inhabited by the feudal law were privately owned in a
way quite that was distinct from the property notions applicable to land. This is no minor issue. To
this day, at least in England, the cleavage between the forms of property ownership applicable to
these two classes of property objects is perceived as an obstacle to providing a unified scholarly
treatment of the law of property. With respect to these various objects of property, the opposition
between the civil law and the common law approach is therefore usually framed in different terms,
relying on the distinction between absolute versus relative title, because with respect to ownership
in goods the common law concept of ownership is relative rather than absolute (see below, Section
9; the seminal historical contribution is Maitland, 1885; and now Seipp, 1994; Mc Sweeney, 2012).
The conventional wisdom leaves something to be desired in other respects too. History is important
in understanding how property structures evolve, provided that intellectual history is duly taken into

16
New York Trust Co. v Eisner, 256 U.S. 345 (1921), 349 (Holmes J.).

16
account. From this point of view, the prevailing comparative account of the divergence of common
law and civilian property systems falls short, because it hides from sight a more layered, complex,
but interesting, story.

The encoding of property norms in formal terms, as the law administered by lawyers requires,
presupposes an institutional setting and an intellectual framework (Hyams: 1981). The development
of feudal relationships in England provided an institutional setting for the structuring of property
law which has been investigated thoroughly. But as an intellectual construct, the full feudal matrix
adopted in common law jurisdictions to set out the relevant law has attracted much less attention.
This expository tradition was not invented when feudalism entered the scene; it was instead
developed once learning from the continent crossed the English Channel, in the seventeenth and
eighteenth centuries. Eminent legal historians who cover property law in their university courses are
sensitive to this aspect of the story, and put on guard from the risk of exchanging an intellectual
construct for actual historical developments. Yet, advice like that offered by Donahue (2015: 198) is
still imparted with great parsimony in the literature:

Many students quite justifiably ask why they should go through the dismal process of
learning the common law system of estates and future interests. Some of the rules which are
discussed in this section are not in effect in most American jurisdictions today, a fact which
leads many students to think that estates and future interests are an exercise in legal history.
In fact, much of the purported history in this Section is not history at all. It is a construct put
together after the fact when the system of estates and future interests was about to be
reformed in the nineteenth century. But that construct proved to be powerfully attractive,
perhaps because it was systematic. […] Behind the logical construct of the nineteenth
century, which one must understand in order to understand today’s law there lies a real
history – a curious blend of logic, policy and misunderstanding that typifies so much legal
development.

The history of property in land was first studied in England in the eighteenth century as an
academic discipline by employing the new historiographical methods, developed in continental
Europe by the humanists (Pocock, 1987; Parry, 1995). Those methods profoundly affected the
understanding and the representation of land law. Writing on English constitutional history at the
end of the nineteenth century, Maitland (1908: 142-3) quipped about this:

Now were an examiner to ask who introduced the feudal system into England? one very
good answer, if properly explained, would be Henry Spelman [1563/4-1641], and if there
followed the question, what was the feudal system? a good answer to that would be, an early
essay in comparative jurisprudence. ... If my examiner went on with his questions and asked
me, when did the feudal system attain its most perfect development? I should answer, about
the middle of the last century.

17
To him, these categories had taken a life of their own:

The phrase [‘feudal system’] has thus become for us so large and vague that it is quite
possible to maintain that of all countries England was the most, or for matter of that the
least, feudalized; that William the Conqueror introduced, or for the matter of that
suppressed, the feudal system.

Work by later historians has vindicated the intuition that Maitland advanced in a semi-serious way
in a series of lectures that he never intended to publish, namely that the learning of tenures upon
which the whole architecture of land law rested was an ex post facto intellectual construct
(Reynolds, 2005).

It is amazing that a country which is known to have shown so early the incipient signs of a
commercial spirit (see, e.g., Herman, 1993; Bowen and Brown, 2016) has for so long pretended to
abide by a feudal system of land tenure. It is even more extraordinary that so many have for so long
taken at face value the dogma governing the system, without asking how it possible to manage to
have a feudal land law in a highly advanced industrial economy, except as a convenient intellectual
device. If this can be, it is because such law is since long stripped of all its original features.
Already by the accession of Edward I (1272), the personal bond between lord and vassal that was
central to feudalism as a social structure was on its way out, replaced by automatic inheritance
according to rules imposed by the central, royal courts (Milsom 1981, 119-51). The Statute Quia
Emptores (1290) prohibited subinfeudation and made it possible for a freeholder to transfer his
estate without the consent of the lord. When Littleton systematized feudal tenures in the fifteenth
century, ‘…his system of tenures was not living feudalism; it was a legal fossil…’ (Baker, 2002:
224). A legal fossil is not a living organism.
A parallel observation can, however, be formulated with respect to the legal systems of continental
Europe in the epoch of the codifications. When the French set pen to paper to regulate property
ownership in their famous code, what guided their approach was, once more, the possibility of
drawing upon an overarching intellectual framework to organise the set of rules they intended to
enact. This was found in the Roman idea of dominium. The formula adopted by the codifiers in art.
544 of the code to define the right of ownership was not, however, taken from the Roman sources
themselves. These sources do not offer anything similar to the definition contained in the civil code,
because the Roman jurists never provided a definition of dominium. This was lifted from the works
of Robert-Joseph Pothier, who – how ironic – wrote on le domaine de propriété to describe the right
of a French feudal tenant who was free to sell his land, provided that he paid feudal rents and duties
to his lord (Pothier, 1772; see Garnsey, 2007: 177 ff.). German law is not different in this respect.

18
Roman law learning was mobilised by nineteenth century German scholars to reconstruct an
intellectual model that later on guided the codifiers in their efforts to lay down an abstract notion of
property right (Whitman, 1990: 165 ff.). In historical terms, this model was no more realistic than
the feudal tenures that Blackstone and his followers had in mind when they set out to provide and
account of the English law of property. The ‘absolute’ notion of ownership that the civil codes
enacted was a model that did not match the living law in the countryside (Grossi, 1981) and that had
to be accommodated to the economic and social conditions prevailing in industrialised societies as
well (Wieacker, 1953).

These models have travelled across time and space when the European powers conquered or
colonised new territories, and presumed to govern them. They lived on, when the former colonies
reformulated their laws, and despite their obvious social and historical irrelevance in these new
environments, they were not discarded. Rather, they were put to new uses, and were thus
transformed, adapted, and selectively appropriated. Their apparent immutability as legal constructs
shows the cultural technique of system maintenance at work. We have to think to that system
maintenance function to explain why their ghosts still haunt contemporary legal systems (Priest,
2006; Stuckey, 1994; Alston and Mueller, 2003).

6. A Second Look at the Fragmentation of Ownership: The Structure of Modern Wealth

In England a feudal scaffolding was built around the rules governing property relationships, and this
intellectual structure endured long after it was obvious that the political, social, and economic
constitution of society was no longer feudal. Weber sought to explain this paradox away by arguing
that in nineteenth century England an archaic legal system was controlled by procapitalist
functionaries – a feature not generally present elsewhere. But critics have rightly noted that there
was some life yet in the old dog: a system of fragmented ownership could – perhaps not so
paradoxically – more easily accommodate at least some of the emerging forms of wealth evolving
in the new financial sector. (Getzler, 1996: 646). A review of this debate is beyond the purpose of
this chapter. What needs to be clarified is what kinds of fragmentation of ownership are sustainable
in a full-blown market economy, in which land no longer grants socio-political status, but is just a
commodity among many others.

The key to the problem is to understand that the capital value of any asset is predominantly
determined by its alienability on the market. The more property is fragmented, the less it is possible

19
to realise its capital value by way of alienation, and the more its capital value tends to zero. This is
why a numerus clausus of real rights is regularly found in all market economies. This inescapable
truth confronted all nineteenth century reformers of property law. But the answer to the challenge
represented by this elementary truth was not the same everywhere. In England, whenever the wealth
represented by land was to be given to a plurality of subjects either concurrently, or successively, an
answer to the problem was found by concentrating the power of alienation over it in the hands of a
few trustees, who thus held the land for all those who were entitled to its value. This became a
common practise in the nineteenth century. It then became obligatory: the Law of Property Act
1925 interposed a trust in all such cases in which there was the risk that the fragmentation of
property realised by the creation of a multiplicity of estates of different duration could have
destroyed the capital value of land. This is the operative meaning of the Law of Property Act 1925,
s. 1, which enacts that only two estates in land can exist as legal estates, and that all other interests
can now only be entitlements to the value of the land held by trustees. The consequence of this
reform is that all the estates that by their structure could have endangered the working of a well-
functioning market in land titles were converted into rights over the capital value of the land held by
trustees. The advantage of this solution is to secure by law that the power of alienation, which is
needed to realise in any moment the capital value of the land in the market, is not fragmented
among an unbearable plurality of successive or concurrent owners of the same asset. All the
previously existing rights of uncertain duration, whether actual or future, which would have
fragmented such power, are thus by law converted into rights over the value represented by the land
held by trustees. This is why in English law the rule against perpetuities applies to property held in
trust, namely to interests in a trust fund (cf. Perpetuities and Accumulations Act 2009, s. 1).

It is conventional wisdom that the trust introduces a form of split or fragmented ownership into the
legal system. The English reform leads us to consider this in a different light. The reverse may well
be true, when we consider the multiple interests of the beneficiaries, because the trust can be seen as
unifying ownership, rather than fragmenting it. The trust is a device through which multiple
concurrent or successive interests in an asset can coexist without destroying the capital value
represented by it, since the power of alienation over that asset is concentrated in the hands of
trustees, no matter how large the class of the beneficiaries of the trust may be. The legislative
formula that marks the point is now contained in the Trusts of Land and Appointment of Trustees
Act 1996:

20
 For the purpose of exercising their functions as trustees, the trustees of land have in relation
to the land subject to the trust all the powers of an absolute owner.17

The notion of ‘fragmentation of ownership’ in this scenario takes an entirely new meaning. Once it
denoted a regime in which each piece of that fragmented ownership directly related to land, as a
present, or future, or contingent, right to possession of the land. Now the expression refers to a
share in the value represented by a trust fund. All of the previously existing rights of uncertain
duration, whether actual or future, are, in economic terms, are converted into rights over the capital
value of the land held by trustees, because the rights of beneficiaries can always be asserted against
the proceeds of disposition of trust property.
The English system interposed a statutory trust which preserves the alienability of land, and also
facilitates the ongoing management of the wealth that the land represents. This mimics what an
experienced conveyancer would have done even before those reforms. It is not surprising that what
is imposed by way of legislation in England is suggested as good practice elsewhere in the common
law world. In the United States, for example, it is still possible to create a legal life estate in land,
but Dukeminier and Sitkoff (2013: 397) describe it as ‘almost always unwise’; a trust is the
recommended solution because a life interest under a trust does not impair the power of alienation
of the land, and therefore its capital value. Under such a device, what is tied up for a time is the
value that today is invested in the land, and tomorrow may be instead be represented by company
shares, or indeed any other asset which can be picked as an investment . The alteration of the old
rules explains why one could reach that paradoxical conclusion that key notions once applicable
only to land are not applicable to any kind of property held under this regime - be it land, company
shares, a painting, a patent, or indeed any other tangible or intangible piece of property. As
investments, after 1925, all these assets are subject to the same rules. One can still speak of the
rights held under a trust as ownership of the trust beneficiaries, but this is ownership in the same
peculiar sense that a portfolio of investments held by an asset manager for a pool of investors is
owned by the investment manager’s clients. Those assets are not in the possession of the investment
manager’s clients, but they have the economic benefit, and protection in bankruptcy as long as the
investments survive.
The land law reforms carried out by the British Parliament in 1925 enforce a regime that has one
fundamental goal, which has not been achieved in such a coherent way in any civil law jurisdiction:
to preserve the alienability of lands. In civilian jurisdictions, in some contexts, it is still possible to
create successive or concurrent property rights that may effectively render the land inalienable for
substantial periods of time. For example, this happens when property is left upon death to a large

17
Trusts of Land and Appointment of Trustees Act 1996, s. 6(1) (emphasis added).

21
number of heirs who become co-owners by way of testate or intestate succession, or when a
usufruct is created so that the usufructuary has only a limited right less than ownership, while the
‘bare owner’ has an ownership right that is significantly impaired during the usufruct. This is why
more recent civil codes, such as the Dutch civil code, have introduced more liberal rules concerning
the structure of usufruct (van der Merwe and Verbeke, 2012: 51).

A salient difference between the law of property of civilian jurisdictions and the law of property of
common law jurisdictions is that the second, rather than the first ones, present a more coherent and
systematic set of rules to deal with property held as investments. The central role of the trust in
organising property holding in all common law countries reflects the intuition that modern wealth is
more often than not managed wealth. That intuition did not come out of a philosophical flash
illuminating the property law of England. It was thrust upon common lawyers by necessity, because
recourse to the trust as a property holding device was the least painful way to reform property law
(either by statute, or by an evolving professional practice), without having to disown the whole,
time-honoured majestic intellectual framework upholding it. The need to protect rights over
property controlled by trustees and other intermediaries brought with it the development of
proprietary remedies to enforce claims in a mixed fund, or over new property, acquired as an
exchange product by trustees, through the disposition of property that was originally subject to a
trust. These remedies are yet another face of the modern aspect of wealth. Trust law has been
evolving since the 1970s, starting in the offshore trust world but now moving onshore, dispositive
discretions given to trustees have in many cases become so wide as to occupy centre stage. In this
kind of trust, wealth is not only disembodied from any particular assets and held as a fund; it is
arguably disembodied from any particular person (L. Smith, 2016). Particularly when many US
jurisdictions are abolishing rules that limit the duration of trusts and contingent trust interests,
(Waggoner, 2011, 2014; some Canadian provinces have followed suit), this disembodiment of
wealth is a cause for concern, and should be seen as an anomaly, contrary to the rules governing the
fundamental structure of property rights.

7. Law from Below: Another Look at the Historical Record

The property law models we have examined so far are the result of concrete historical facts but are
also the product of legal learning in the high mandarin mode, which is often the mark of the
lawyer’s trade. Both models have features that speak of an individualistic society giving particular
weight to the right to exclude as a feature of property law. Both, it is to be added, presuppose the

22
existence of the State and its institutions – to begin with, courts - to protect what is owned as
property. The colonisation of territories outside Europe during the nineteenth century is the story of
the imposition in new environments of those property models, and of their adaptations to the
conditions of life prevailing in those lands. Part of it was the radical dispossession of the native
peoples through outright violence, and the marginalisation of their ways of benefitting from what
nature offered, or human industry produced. The European models represent the law of a market
society which relies on the written record to document ownership, on lawyers and the courts to
assist litigants in property matters, and on a whole range of State institutions to govern property.
Where these are unavailable, neither model of property rights can work to represent the substance of
the law on the ground. The point that is less frequently appreciated is that both models were
problematic not only outside Europe, where the European settlers arrived (Karsten, 2002), but in the
heart of Europe itself (Grossi, 1981; Gordon 1996). The full story of this resistance is not usually
written in capital letters in the mainstream legal literature on property because it is the story of a
deviation from the model of absolute ownership that was advancing on the European soil. Yet it is
an important chapter in the making of property law. Those rights which did not conform to the
model were marginalised, both conceptually and in fact. Sometimes they became part of the domain
of public property, or they were extinguished. Nonetheless, the needs that these rights satisfy are
still very much alive, and indeed the role that commons play in a wide range of situations is highly
significant. Even today, the present regulation of property is challenged by social expectations that
demand recognition by the legal system (Peñalver and Katyal, 2010).

8. Possession, and the boundaries of property

As a primeval form of attribution, possession plays a role in establishing the ambit of property
relations. In many civilian jurisdictions, the notion of possession demarcates the province of the law
of property. What is capable of possession, in Germany, in Italy, and in a number of other civilian
jurisdictions is a material portion of the natural word that is a physical thing (for Germany, see §90
BGB). What cannot be possessed, namely brought under the physical control of a subject, cannot
become the object of a property relationship in these legal systems, and belongs to other fields of
the law, such as the law of obligations, or the law relating to intellectual property. Not all legal
systems demarcate the province of the law of property according to this remorseless logic, nor all
agree with it. French law, for example, admits a minority view, which allows for an extended notion
of ownership. According to this view, the field of property law includes claims (la propriété de la
creance, the ownership of claims) (Emerich, 2005; Laurent, 2012) and other intangibles as well. In

23
common law jurisdictions, a property relationship may subsist in tangibles (land, and ‘choses in
possession’), or intangibles (‘choses in action’, so called because they can only be validated by
legal action). This classification, which is still adopted by many jurists in common law jurisdictions,
thus includes in the law of property rights in in personam (on this see Penner, 1997: 129 ff.). In this
sense, ‘property’ as understood by some common lawyers corresponds to the French notion of bien,
namely any asset, tangible or intangible, capable of being included in a person’s patrimony –
namely all that can be appropriated because it has economic value (Ball, 2006).

Despite these different taxonomies, which are examined by a number of comparative contributions
(Pugliese, 1951; Gretton, 2007; Giglio, 2012), in all the legal systems considered here possession
never works as a means of acquiring a property right with respect to intangibles. In some legal
systems it may be suggested that that claims can be the object of possession (French civil code, art.
1240; on Austrian law: Rüfner, 2014), while in others this possibility is ruled out (for England see
Benjamin, 2007: 257 ff.). But while a person may acquire certain rights in relation to a tangible
thing by taking possession of it, namely through some degree of physical control, establishing an
entitlement to an intangible depends in any case on proof of other facts. The rules about acquiring
rights via possession, requiring as they do some kind of physical control, cannot be applied to
intangibles. Furthermore, the actions to protect or enforce intangible rights are generally different
from the actions given to protect things which can be possessed. To predicate that, under a given
legal system a claim for a certain monetary sum (a debt), for example, may be the object of a
property right is to formulate a statement that must be taken in a restricted meaning, because the
rules applicable to assets that can be possessed are pro tanto irrelevant with respect to this kind of
property. If a claim can be considered as an object of property it is because it is alienable, and this
can be so because the personal qualities involved in the rendering of performance are not a salient
feature of the creditor-debtor relationship, like in the case of a money debt (Penner, 1997: 131).

9. Possession, property, and the protection of property rights

The fact that a thing is capable of physical control has some consequences. First, a physical thing
can be located, therefore the claimant can ask the defendant to deliver it up. Secondly, the person in
possession of the thing may obtain protection against interference by others. This is not only in the
interests of public order, but also because uncertainty over property rights affects their security and
their value.This protection may go as far as to deny claims based on prior title, if such claims have
not been enforced for substantial periods of time.

24
When these topics are approached from a comparative standpoint, a first distinction is usually
emphasised. In civilian jurisdictions, the right of property is protected by a specific action (rei
vindicatio), which asserts an absolute title against the defendant who resists the claim for the
recovery of the thing. The action in question usually protects both movable and immovable
property, and has nothing in common with the possessory actions that protect an entirely different
relationship, namely possession. These actions trace their origins to different sources that were
variously recombined in legal practice (Caterina, 2004). The sharp distinction existing between
these two set of remedies has no parallel in the common law, where all the actions provided by the
legal systems to protect proprietary relationships relationship are based on possession, and the right
to possess, rather than on absolute entitlement (Santisteban and Sparkes, 2015). Therefore: ‘The
English law of ownership and possession, unlike that of Roman law, is not a system of identifying
absolute entitlement but of priority of entitlement.’18 A second distinction that is often considered as
salient originates from the circumstance that in common law jurisdictions land can be recovered in
specie, while goods are protected by claims that allow the recovery of their fair market value, unless
the defendant agrees to deliver up what is claimed. This distinction lies at the root of the traditional
common law classification of things into real property and personal property, where real property is
property that could always be recovered in specie, while personal property is protected by personal
actions only, namely tort actions sounding in damages.

These neat distinctions should be taken with a grain of salt, when considered in comparative
perspective. In civilian jurisdictions, the protection afforded by the action in revendication is in
most cases a means of last resort, precisely because the burden of proof on the claimant is, in
principle, very heavy. If possible, what is to be recovered is usually claimed by bringing a personal
action based on a claim for restitution, or a possessory action, which is usually available to
promptly obtain restitution on the basis of the fact that the claimant was deprived of possession by
the defendant’s wrongful actions. With respect to movables, the possibility to successfully bring a
revendication action is low or null whenever the thing in question has been transferred by a non-
owner to a good faith purchaser because of the protection granted in many civilian systems to the
good faith purchaser of goods (Levmore, 1987; Schlesinger et al., 1998: 253-7; Ferreri, 2015). The
rule that protects the good faith purchaser originates in the Germanic customs of the middle ages,
and has nothing to do with the Roman law, that provided the model for the revendication action. On
the other hand, civil law jurisdictions are not all alike when it comes to establishing how to prove an
18
Waverly BC v Fletcher [1996] Q.B. 334, 3454 (per Auld L.J.). On the historical pedigree of the view that considers
possession as a source of property rights in English law, see Hickey (2014).

25
absolute title to property. In Germany, with respect to land, proof is facilitated by the fact that the
owner is usually registered as such in the land register, and in the majority of cases this registration
is conclusive as to title. But in countries like France, where the land registers do not have this
evidentiary function, the proof of the right of ownership by the claimant in revendication is not
nearly as absolute as it should be in theory (see Ferreri, 1988: 102 ff.; van Erp and Akkermns, 2012:
131 ff.). Furthermore, in some legal systems (e.g. Austria), the old Roman remedy of the actio
publiciana, which was invented by the Roman Praetor to alleviate the burden of proof incumbent
upon the claimant in revendication, has been maintained to this day. This action protects the right of
the claimant insofar as his title is better than the title of the defendant (ABGB § 372, see Faber,
2008: 47 ff).
The notion that the protection of personal property is given only through actions that sound in
damages is not true for US law, where replevin has morphed into a remedy that can lead to the
recovery of the goods demanded by the claimant if they are with the defendant, who does not have
the option of paying value rather than returning them.19 On the other hand, the fact that
revendication does not give the claimant the option to claim the value of the thing which was taken
from him is inconvenient where the good claimed have lost much of their value, as happens when
they become obsolete.20

Finally, all common law countries have evolved proprietary claims to recover an asset substituted
for the original property, or its proceeds. So if A’s lawyer holds property of his client B, but
contrary to his instructions decides to sell it, to take the money and buy a painting, B shall have a
claim to the painting, or to the money resulting from the sale of it, if the painting is eventually sold.
B’s claim against A is proprietary in nature because it has priority over the competing claims of A’s
unsecured creditors. Civilian jurisdictions have not evolved proprietary remedies of this kind,
except in specific contexts. Such remedies shows the possibility of thinking of property as wealth
that can be identified through all its transformations, precisely because possession is not the
hallmark of property, when it is considered as a form of investment. All this shows that a number of
ideas are in play when we compare these remedies, and try to draw comparative conclusions. Do we
identify a revendication claim by the availability of specific recovery of the thing in question? If so,
we might say, paradoxically, that Roman law itself did not have a revendicatory action, since the
defendant could choose to pay the assessed value (although this choice could be manipulated by
fictionally high valuations) (Nicholas, 1962: 101-2). And, paradoxically, that the common law does
have such actions, not only for land, but also for movables as we have seen. It is true that outside
19
Bogestead v Bothum, 248 Minn.198, 79 N.W. 2nd 371 (1956).
20
BGH 30 November 1964, NJW 1964, 2414, excerpted and translated in van Erp and Akkermans, 2012: 145-146.

26
the US, the grant of an order for specific recovery of a movable is in the discretion of the court. But
at least, it is not the defendant who chooses. Then the response might be, it is not the relief that
constitutes a revendication, but rather the nature of the claim. A revendicating claimant says, ‘that
thing is mine, now’; a claimant alleging wrongful dispossession or wrongful interference says, ‘you
did something that was wrong against me, in the past.’ But here again we can say that the common
law does have revendication, even for movables, and even outside the US with its replevin. The
claim called ‘detinue’ functions as a present assertion of rights in movables (although it can also
allege a past wrong).21 The further response might be that a revendication is only rightly so called if
it depends for success upon proof of an existing, abstract ownership, and not merely upon proof of a
better title or right than that of the defendant. On that view, of course, Roman law did have such a
claim; the common law does not, not even for registered land, where relativity of title has full
operation (Fox, 2006: 336; McFarlane, 2008: 647-50). This is necessitated by the absence in the
modern common law of a systematic distinction between possessory and revendicatory actions, and
also by features of the English law of limitation of actions.22 But as we have already seen, for
movables and in some systems even for land, the modern civil law also uses something like
relativity of title even for revendication. It is simply impracticable to have a claim that can only be
invoked through proof of ownership unless one has a near-perfect system for proving that
ownership.

10. Conclusions

Comparisons of property laws require an understanding what is living law, governing and
structuring social practice and social expectations, and what are instead the intellectual tools that
lawyers use to rationalise, structure, and represent working rules in conceptual terms. These
elements mix as oil and water, and therefore their match is less than perfect, as a good deal of bric
à brac goes on in the legal and in the social system.
One may be tempted to think that the problem of drawing such a troublesome distinction can be
killed by proclaiming that property is not a suitable object of enquiry All that we could compare
then would be how the law regulates specific conflicts over some resources. This idea enjoyed some
success in the past decades, and comparative law scholarship has often flirted with it. Nonetheless,

21
As for England, it seems that only the terminology has changed. The Torts (Interference with Goods) Act 1977, s.
2(1) provides, ‘Detinue is abolished.’ But the claimant in England can sue for ‘conversion’ and allege the same facts
that used to be called detinue.
22
Common law legislation often provides only what a civilian would call extinctive prescription, not acquisitive
prescription. To fill this gap, especially in relation to registered land, it is necessary to say that that squatter acquires a
fee simple estate in land from the moment of taking possession.

27
property still dominates the legal imagination, and is widely employed as a normative concept at all
levels of the law. This is why a different option has been advanced in this paper, namely to bring
the different conversations about property into contact, while distinguishing as far possible what
they relate to. This produces a richer picture about how the law is conceived and elaborated in
different places, and a few important lessons, not be too easily forgotten by comparative lawyers as
well.

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