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Property law

Written by: Charles Donahue

TABLE OF CONTENTS

Introduction

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deals with the relationships between and among members of a society with

Use of property
interests

Acquisition and
transfer of property
interests
Aspects of property

law in communist and

postcommunist
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Property law, principles, policies, and rules by which disputes over property

Property law and the

types of possessory
interests in property

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are to be resolved and by which property transactions may be structured.

Objects, subjects, and

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Alternative title: property rights

Definition and basic

themes
Western concept of
private property

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What distinguishes property law from other kinds of law is that property law
respect to things. The things may be tangible, such as land or a factory or a
diamond ring, or they may be intangible, such as stocks and bonds or a bank
account. Property law, then, deals with the allocation, use, and transfer of
wealth and the objects of wealth. As such, it reflects the economy of the
society in which it is found. Since it deals with the control and transfer of
wealth between spouses and across generations, property law also reflects
the family structure of the society in which it is found. Finally, because it
deals with such fundamental issues as the economy and the structure of the
family, property law also reflects the politics of the society in which it is
found.

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This article outlines the major systems of property law that have existed
historically and that exist today. The principal focus is on the two major
Western systems of law that have become dominant in the industrialized
world: the Anglo-American system, derived from the English common law,
and the civil law system, which was developed on the European continent on
the basis of Roman law. The article will also compare Anglo-American
property law with its counterpart in various civil law (i.e., law based on
Roman law rather than English common law) countries, including Germany

BRITANNICA STORIES

and modern China. Special attention will be given to the rules of property
law in countries that, because of their socialist political system, did not
recognize private ownership of property. Russia and Romania will be used as
the main examples.

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The problem of definition

Property is frequently defined as the rights of a person with respect to a
thing. The difficulties with this definition have long plagued legal theorists.

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The same problem of definition occurs in non-Western societies as well. In

Russia, for example, the word property (sobstvennost) can have various
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meanings. In some cases it is used as the equivalent of things, belongings, or

real estate. It is also used to refer to the right of ownership. In modern-day
Russia, the term property is most accurately understood as the economic

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relations between the owner of a thing and all other persons with respect to
that thing.

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Property law is best understood as the complex of jural relationships

between and between persons with respect to things. It is the sum of rights
and duties, privileges and no-rights, powers and liabilities, disabilities and
immunities that exist with respect to things. This holds true for both Western
and non-Western legal systems. What distinguishes property law from all
other jural relationships, then, is that the jural relationships of property law
deal with things.
For purposes of this article, all tangible things are included within the realm
of property law, even if a specific legal system denies the classification
property to certain kinds of tangible things. Many, but not all, legal systems
that recognize a separate category of property law also include within that
category some intangible things, such as stocks and bonds, but not other
intangible things, such as claims for compensation for wrongs (i.e., a tort or
delict). The definition of property law used here includes only those
intangible things that the legal system under discussion classifies as
property. For a discussion of property law relating to other forms of
intangible assets, see intellectual property law.
This descriptive definition of property law makes it possible to say that there
is no known legal system that does not have a law of property. A legal
system may not have a category that corresponds to property in Western
legal systems, but every known legal system has some set of rules that deal
with the relations between persons with respect at least to tangible things.

Etymology
The descriptive definition of property law adopted for this article is far
removed from what the word property means in normal English usage: an
object of legal rights, or possessions or wealth collectively, frequently
with strong connotations of individual ownership. The English word property
derives either directly or through French proprit from Latin proprietas,
which means the peculiar nature or quality of a thing and (in Roman
writings after the time of Caesar Augustus) ownership. The word proprietas
is derived from proprius, an adjective meaning peculiar or own, as
opposed to communis, common, or alienus, anothers. Thus, even before it
comes to be a legal term, property in the West expresses what distinguishes
an individual or a thing from a group or from one another.

The Western tendency to agglomerate

If property law in the descriptive sense exists in all legal systems, the
extraordinary diversity of the property systems of non-Western societies
suggests that any concept of property other than the descriptive one is
dependent on the culture in which it is found. Even in the West, as the
discussion of the English word property shows, the concept has varied
considerably over time.
Nonetheless, one tendency seems to characterize the legal concept of
property, in the descriptive sense, in the West: a tendency to agglomerate in
a single legal person, preferably the one currently in possession of the thing
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that is the object of the inquiry, the exclusive right to possess, privilege to
use, and power to convey the thing. In the technical language of jural
relationships, Western law tends to ascribe the following to the possessor of
the thing: (1) the right to possess the thing with a duty in everyone else to
stay off, (2) the privilege of using the thing with no right in anyone else to
prevent that use (coupled with a right in the possessor to prevent others
from using the thing), (3) a power to transfer any or all the possessors rights,
privileges, powers, and immunities to anyone else (who would in the
technical language be described as liable to the exercise of the power), and
(4) an immunity from change by anyone of those same rights, privileges, and
powers (so that everyone else is disabled from changing them).

Property law and the Western concept of

private property
The origins of the Western idea of property
ROME
In classical Roman law (c. AD 1AD 250) the sum of rights, privileges, and
powers a legal person could have in a thing was called dominium,
ownership, or, less frequently, proprietas (though frequently enough for it to
be clear that the two words were synonyms as legal terms). The classical
Roman jurists did not say that their system tended to ascribe proprietas to
the current possessor of the thing, but that it did is clear enough. A number of
Roman legal rules denied the label possession to the person who was in fact,
though not legally, in possession in order to keep legal possession in the

proprietas. Further, the person legally in possession was presumed to be the

proprietas. This is clear enough from the procedural rules that required a
person who was not peaceably in possession of a thing to establish
affirmatively that his title to the object was better than that of the peaceable
possessor.
Once the Roman system had identified the proprietas, it tended to prevent
him from conveying anything less than all the rights, privileges, and powers
that he had in the thing. Thus, full use rights divorced from ownership
(usufructus) could be given only to a living person, and that person could not
convey those rights to another. The ability of an owner to agree to legally
binding restrictions on his privilege of use (servitutes) was sharply limited.
Moreover, anyone who found himself owning a thing jointly with others
could require that the thing be divided into distinct ownership units (nemo

invitus ad communionem compellitur; no one is forced to have common

property with another).
One might argue that the tendency toward absolute individual property
rights in Roman law was more apparent than real. For example, classical
Roman law never developed a remedy whereby an individual could, upon
proof of ownership, specifically recover a thing. The owner could obtain a
judicial declaration of his right to the thing, but the defendant could respond
by paying damages. The Roman law of persons put extraordinary power over
things in the hands of the head of the household (paterfamilias); indeed, this
power was so extraordinary that an elaborate system (peculium) was
necessary to allow slaves and sons in the power of their fathers to make
binding legal transactions with things that were in fact but not in law their
own. Moreover, land outside Italy was owned not by individuals but by the
Roman people collectively or by the emperor, yet individuals who had use
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rights in such land came to have a quality of control over it that was not far
different from that of the owners of Italic land, even though the individuals
holding usage rights were not called owners. Finally, the sharp cleavage in
Roman law between public law and private law prevented the Romans from
ever developing a legal notion of protection of property as against the state.
This meant not only that property rights were not so absolute in Roman law
as it might first seem but also that nothing prevented many of the sorts of
conflicts about land use (such as takings or condemnations by government
entities that in the later Anglo-American legal system were traditionally the
subject of private tort suits or private agreements) from being dealt with in
Roman law as legislative or administrative matters.
The agglomerative tendency itself existed to a marked extent in Roman legal
thought about property. It is evident not only in the ways outlined above in
which Roman legal thought focused on the interests of the owner of a thing
to the expense of those of others, but also in the fundamental separation
that Roman law made between property law and the law of obligations
(contract and delict). This latter separation was to become characteristic of
all the Western legal systems, while the specific decisions that the Roman
jurists made about what was to be characterized as a necessary part of
ownership became characteristic of many Western legal systems, particularly
the civil-law systems.
The existence of the agglomerative tendency in Roman legal thought has no
obvious explanation in Roman political or philosophical thought other than
the broadest of connections with general ideas of individual worth. That the
tendency, coupled with the Roman law of persons, favoured the propertyholding classes seems obvious. A number of its manifestations, however,
cannot easily be attributed to class interest, notably the laws refusal to
allow family settlements of any but the most short-lived variety, the paucity
of land-use control devices, and the failure of the law to develop any notion
of protection of property against the state.

ENGLAND
In medieval English law, the procedural system prevented any clear
distinction between property and obligation. It was not until the abolition of
the forms of action in the 19th century that Anglo-American law
distinguished between property and obligation in the way the Romans had. It
is therefore remarkable that English law prior to the abolition of the forms of
action tended at critical junctures to move in directions similar to the Roman
namely, to agglomerate property rights in a single individual.
In England a notion of property in land emerged at the end of the 12th
century from a mass of partly discretionary, partly customary, feudal rights
and obligations. The way in which this happened was extraordinarily
complex. What began as essentially an appellate jurisdiction, offered by the
king in his court to ensure that a feudal lord did not cheat those who were
subordinate to him, ended with the free tenant being the owner of the land,
in a quite modern sense, with the lords rights limited to receipt of money
payments.
Legislation at the end of the 13th century (statute De donis conditionalibus,
1285) allowed a conveyor of land to limit its inheritance to the direct
descendants of the conveyee and to claim it back if the conveyees direct line
died out (fee tail). (See also entail.) In one of their few deviations from the
principle of consolidating the power to convey in the present possessor of
land, the English courts extended the scope of this legislation in the 14th
century. In the middle of the 15th century, however, the courts reversed the
trend and allowed the present possessor of entailed land to extinguish the
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interests of his descendants and of the conveyor (docking of entails by a

legal proceeding known as common recovery).
In the 16th century the process that had operated at the end of the 12th
century to consolidate ownership rights in the free tenant was replicated for
the copyholder, the descendants of those who held land by unfree tenure.
The royal courts opened appellate jurisdiction to copyholders wronged by
the unjust behaviour of their lords courts, and the end result was that the
copyholder became the owner of what had heretofore been the lords land in
the eyes of the kings law. Once again, the lords right in the land was
reduced to the receipt of money payments.
The earliest manifestations of the agglomerative tendency in 12th-century
England seem to have announced a fundamental change in the English
social system. According to contemporary thought, the man who was seised
(i.e., put in possession) of a freehold was effectively considered the owner of
the property, and the rights of the lords of freeholders became more like
those of taxing authorities. The rights of the nonfreeholders who held land of
the free tenant, however, became obscured by the fact that they were not
protected in the kings courts.

THE EUROPEAN CONTINENT

The collapse of Roman and then of Carolingian power led, in most areas on
the Continent, to a situation not unlike that which prevailed in England
before the emergence of the central royal courts in the late 12th century. As
in England, land was bound up in a mass of partly discretionary, partly
customary, feudal rights and obligations. England, however, was precocious
in developing central royal courts as early as it did. In most areas of Europe
lords courts remained a significant force for a much longer period, even for
free tenants.
The Roman idea of property was revived on the Continent as an intellectual
matter before it came to have much practical force. Beginning in the 12th
century, the study of Roman law in the universities led to a renewed
awareness of Roman conceptions of property, and in many areas a mixture of
Roman law and canon law, known as jus commune (common law), came to
be authoritative in the absence of local law. Further, Roman ideas were
influential both because they were part of the equipment of every universitytrained jurist and because they were part of the jus commune. By the end of
the Middle Ages the property law of most European countries was still far
from that of the Romans, but it was heading in that direction. Civil law was
thus displaying the same agglomerative tendency noted in more detail for
England.

EXPLAINING THE ORIGINS

Both the Roman and the Anglo-American legal systems began as
mechanisms for resolving disputes. Both systems began with possession of a
thing by an individual. The convenience of assuming that the possessor had
all the other rights, privileges, and powers one might have in a thing may go
a long way to account for the presence of the agglomerative tendency in
both legal systems. The tendency began as an allocation of a burden of
producing evidence of ownership. A dispute arose about a thing. Both
systems began by determining who is possessed of it. They then assumed
that said person had all the rights, privileges, and powers that go along with
property until someone else could show that this was not the case.
Although Western legal systems are not unique in beginning as disputeresolution mechanisms, the Western concept of property is, if not unique,
certainly unusual. One may speculate that what makes this disputehttps://www.britannica.com/topic/propertylaw

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resolution device operate in favour of the individual property holder in the

West is an accident of chronology: systematic legal thinking (associated with
professionalization) developed in tandem with a social perspective that
valued an individuals connection with a thing above any groups connection
with the thing. Thus, the notion of individual property emerges in both
Roman and English law at a time when family ties to property were
weakening and legal professionalization was occurring.

Property law and theory in the early modern period

Beginning in the 17th century, developments in property law both in England
and on the Continent can be related to developments in speculative
jurisprudence. General speculation about the nature of property is at least as
old as Plato and Aristotle. Although property is considered, sometimes quite
critically, in the writings of the Church Fathers of the Latin West and of
medieval theologians, these writings had relatively little direct effect on the
secular law.

THE CLASSICAL THEORIES OF PROPERTY

In the early 17th century the Dutch speculative jurist Hugo Grotius
announced the theory of eminent domain (condemnation of private
property). On the one hand, according to Grotius, the state did have the
power to expropriate private property. On the other hand, for such a taking
to be lawful, it had to be for a public purpose and had to be accompanied by
the payment of just compensation to the individual whose property was
taken. The idea was not original, but Grotius stated it in such a way that it
became a commonplace of Western political thought.

In the late 17th century the German jurist Samuel von Pufendorf refined a
theory of the origins of property rights that had been in existence since
ancient times. Property, Pufendorf said, is founded in the physical power
manifested in seizing the object of property (occupation). In order, however,
to convert the fact of physical power into a right, the sanction of the state is
necessary. But the state cannot, Pufendorf seems to suggest, make a property
right where physical possession is not present. Thus, both occupation and
state sanction are necessary conditions for the legitimacy of property.
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Pufendorfs English contemporary John Locke had a different theory, again

one that had considerable antecedents. What gives someone a right to a
thing, according to Locke, is not simply his seizing of the object but rather
the fact that he has mixed his labour with the thing in making it his own. This
right to a thing arising out of labour is a natural right. It does not require
state sanction in order to be valid. It should, however, be protected by the
state. Indeed, property is fundamental to the contract that people make in
forming the state, and for the state to deny the right to property is a breach
of this contract (see social contract).

Particularly in Great Britain during the late 18th and early 19th centuries, the
Scottish Enlightenment gave rise to a new set of ideas about property that
were influenced greatly by the English utilitarian political philosopher
Jeremy Bentham. Property, according to Bentham, is nothing but an
expectation of protection created by the legislator and by settled practice. It
is, however, an expectation that should be carefully respected. Since the
function of the legislator is to maximize the sum of human felicity, he should
know that rarely does any interference with property produce more felicity
than it destroys.
Benthams follower John Stuart Mill associated property with liberty and
suggested that security of property is essential for humankind to maximize
its potential for liberty. Modern economic theories of property that justify
property on the ground that there must be an initial allocation of resources
to allow the market to operate and on the ground that individual property
rights minimize transaction costs derive from the tradition of Bentham and
Mill.

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On the Continent, thought about property took a somewhat different turn.

Building on the categorical imperative of the German philosopher Immanuel
Kantthat persons must always be treated as ends in themselves rather than
as meansphilosopher Georg Wilhelm Friedrich Hegel suggested that the
same imperative applies to a persons property. The reason for this,
according to Hegel, is that when someone extends his will to a thing, he
makes that thing a part of himself. Protection of property is thus intimately
connected with protection of the human will.

The middle of the 19th century saw the first concerted attacks on the
institution of property since the time of the early Christians. The Communist
Manifesto (1847) of Karl Marx and Friedrich Engels holds that property is
nothing but a device in the social warfare between the capitalist and
proletarian classes, the means by which the capitalist expropriates the
labour of the proletarian and keeps him in slavery. Reform, according to
Marx and Engels, would not come until the revolution, when property would
be abolished.

MARXISM, LIBERALISM, AND THE LAW

Not surprisingly, relatively little of Marxs theory of property showed itself in
property law until a Marxist revolution took place in Russia in the early 20th
century. For utilitarianism and Hegelianism, and their combination in various
forms of liberal thought, the evidence of influence is more pronounced as
the 19th century progressed.
The beginning of the 19th century was marked by the promulgation in
France of the Napoleonic Civil Code (1804), a systematic and comprehensive
code of private noncommercial law that was to have great influence in the
European codification movement that followed. The code is notable for its
reluctance to recognize interests in property other than the owners.
Liberal conceptions of property seem to have influenced legal thought later
in the 19th century. On the Continent the pandectists, a group of systematic
jurists prominent in Germany, took the agglomerative tendency inherent in
the Roman conception of property and developed it to a point that most
modern commentators find goes far beyond what the Roman sources
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themselves suggest. Their ideas were embodied in the German Civil Code
(effective 1900) and had substantial influence on the codes of other
countries (see Pandects).
The tendency toward absolutism in matters of property is also remarkable in
Anglo-American law on both sides of the Atlantic. The English Settled Land
Acts (1882, 1890, 1925) gave considerably more power to the present holder
of settled land than the common law had given him. The Married Womens
Property Acts in both countries (originating in the United States in 1839 and
in England in 1857) divided property within the marital unit by assigning it to
one or the other spouse. The examples could easily be multiplied.
In the United States the influence of liberal ideas on the development of the
law of property can be seen most strongly in the substantial jurisprudence
that emerged concerning the protection of property against the state. On the
federal level, this development came after the passage of the Fourteenth
Amendment to the U.S. Constitution in 1868. This amendment prohibits,
among other things, any state from depriving a citizen of property without
due process of law. Under this rubric, many types of economic and land-use
regulations were struck down by the U.S. Supreme Court on the ground that
they interfered with citizens property rights.
As in the case of Roman law, so too in the case of 19th-century AngloAmerican law, focusing on what is called property law may obscure the
reality of the total law with respect to the possession, use, and conveyance of
things. Thus, while the rights, privileges, and powers of the owner seemed to
expand, other legal developments undercut them. For example, while the
types of permissible easements (a property interest in land other than the
owners) were restricted in the 19th century, the English equity courts in the
same period created a new form of obligation, now called equitable
servitudes, that served the same function as easements and were not subject
to the same restrictions (Tulk v. Moxhay [1848]). While the agglomerative
tendency affected the law of trusts, the express trust resisted any attempt to
defeat its basic division of legal from equitable title. Indeed, trusts were
increasingly used as a means of holding newly important aggregations of
personal property. Similarly, the increasing complexity of land-use conflicts
led to an ever-growing body of local land-use regulations, and the first
comprehensive planning act was passed in England at the beginning of the
20th century.

SOCIETAL INFLUENCES
The social situation within which the law was operating changed markedly
over the course of the 17th through the 19th century. In England in the 17th
century the abolition of most of the lords rights to receive money from his
freehold tenants relegated the tension between the free landowner and his
lord to the background, and a new tension emerged between the established
country landowner seeking to perpetuate his family on his land and the
newly wealthy man of commerce seeking to buy country land. While lordship
remained a force on the Continent throughout the 18th century and in
Germany into the 19th century, the same tension between noble and
bourgeois was also apparent. The restrictions on the power to tie up land for
long periods of time, which the law either invented or extended in this
period, favoured commercial interests. That the law stopped short
(considerably short in the case of the Anglo-American law) of abolishing all
restrictions on the power of the conveyee himself to convey is a product not
only of a recognition of the tension in the fundamental tendency to
agglomerate but also of the power of the countrymen and their
conveyancers to influence the course of legal development.

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By the 19th century the conflict between the established landowner and the
merchant had given way to a conflict between industrial and agricultural
land uses, and the key issue was not the power to alienate land but the
privilege to use it. In Anglo-American law the 19th-century courts gave broad
scope to industrial development of land at the expense of adjoining
residential and agricultural uses. The courts, however, at no time recognized
an absolute privilege of land use, and this may be seen as a product both of
the inherent tension in the fundamental tendency and of the fact that the
agricultural classes retained some social power.

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