Property in Securities: A Comparative Study by Eva Micheler
| Published date | 01 March 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00695_1.x |
| Date | 01 March 2008 |
Eva Micheler, Property in Securities: A Comparative Study,Cambridge:
Cambridge University Press, 2007, 239 pp, hb d55.
It is, in a sense,a shocking thing that the law cannot tell you for surewhether you
do or do not own something. Unfortunately the law of ownership of securitie s
appearsto be in such a state.Worse, this is not exclusivelyan English a¥iction, and
the lawsof many EUmember states notonly have diverse approaches to common
legalproblems relating to securitiesownership but also a range of questionswhich
are di⁄cult if not impossible to answer with certainty and clarity. Reform is
clearly needed if the EU’s objective of a single market in investments is to be
achi eved.
This book is a useful contribution to the understanding of why there are dif-
ferences between the laws of member states. Dr Eva Micheler has been closely
involved with the work of the EU Commission’s ‘‘Legal Certainty Project’’,
whichisintendedtoleadtoacodi¢edsystemoflawacrosstheEUtoimprove
harmonyand certainty about the rightse njoyedby investorswho hold their secu-
rities in an account with an intermediary. She analyses the laws of England and
Wales and compares them with those in Germany and Austria, pointing up the
areas of similarity as well as the di¡erences.What is heartening is that there are
clearly many areas of similarity: the central thesis of the book is that convergence
of laws, even across very di¡erent legal traditions, is achievable.
English readers will ¢nd the explanations of the law helpful, clear and infor-
mative. English law has evolved along a tortuous path through law and equity,
with the result that simple questions like ‘when does title pass?’ cannot be
answered simply. Dr Micheler sets out a menu of possible answers to this question
and analyses each of them clearly. It would be interesting to study the impact of
the contract between buyer and seller on the moment at which title passes. Eng-
lish law has traditionally had greater respect for the ability of contracts to alter
ownership, and it seems likely that modern English courts would allow title in
securities to pass in equity at atime agreed between the parties, provided that the
seller has done everything in its power to divest itself of the securities (these days,
that will typically be sending dematerialised instructions to CREST). This is
likely tobe so even if some of the pre-requisites to a title transfer in equity which
have historically been expected are missing.
Dr Micheler setsout the theories in a waywhich can easily be understood by a
student or a trainee being asked to research the problem, and can quickly be
turned to practical use in advice to a client.The analysis is concise as well as being
thorough, and expressed in a style whichis accessible and comprehensible tothose
unfamiliar with the English legal tradition, or feel that it is too long since they
studied the subject in the classroom. The authorities (in particular the pragmatic
decision in Hunter v Moss [1994] 1WLR 452, which has been unfairlycriticised by
some academics) are analysed in a way which is sympathetic to the needs of the
market.
Practitioners dealing with questions relatingto transfers and settlement of Ger-
man orAustrian securitieswill similarly ¢nd the description of the law and howit
has evolved into its current state informative and interesting. Possession of the
We r t p a p i e r ^ the value of the security is in the paper itself, not the shareholders’
Reviews
322 r2008 The Authors. Journal Compilation r2008 The Modern LawReview Limited.
(2008) 71(2) 320^330
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