The Problem Of A Law Of Property In Goods

Date01 October 1949
DOIhttp://doi.org/10.1111/j.1468-2230.1949.tb00137.x
Published date01 October 1949
THE
PROBLEM
OF
A
LAW
OF
PIWPERTY
IN
GOOXIS
ALL
systems of law distinguish between the law of property and the
law
of
obligations. The distinction is not the same as that between
rights
'
in rem
'
and rights
'
in personam
'
since some violations of
property rights give rise to personal remedies and some obligations
may in effect be enforced 'in rem' by injunctions and similar
devices.'
It
is not easy to define precisely what rights are rights of
property, but it is easy to describe the type of incidents which a law
of
property possesses.
A
law of property usually entails specific
recovery of the
'
res
',
'
tracing
'
of title either by documents or
public records, incumbrances enforceable specifically against the
'
res
',
or
restrictions on user which are similarly enforceable. The
law of real property possesses all these incidents. The law of pro-
perty in chattels is deficient on all these points,
so
that, save
for
the
purposes of universal succession
on
death
or
bankruptcy
it
may
hardly
be
said to
be
a
law of property at all. The reasons for this
difference are historical as much as practical, and
it
is
interesting
to
consider whether we have as yet reached a stage
of
legal develop-
ment where the rudiments
of
a real law of property in goods exist.
The common law failed to develop distinctly proprietary
remedies for the recovery of goods. In the Middle Ages live stock
were almost the only chattels of real value and such chattels were
intimately connected with the land. Land was permanent and
identifiable, goods transitory and easily concealed from discovery.
Hence the land law gave actions which determined the title to land
which were distinct from and older than the actions which were
grounded on interference with land. By the time the action of
trespass in ejectment, a tortious remedy, had become the usual
remedy of the claimant to land the rules of land law were familiar
and the idea
of
property in land well entrenched.*
In the case of chattels the identification of remedies for their
recovery with the law
of
tort came too early for the property aspect
to
survive.
In
the curly common law there were actions by which
chattels could be specifically recovered. Cattle could be recovered
by an interlocutory proceeding in replevin where they had been the
subject of unlawful di~tress.~ Ancient notions of self-help survived
1
Stone,
Prooince and Function
of
Law,
128.
2
Holdsworth
says,
in regard
to
the
action of ejectment
(vol.
7,
p.
17):
'
Since
it
was
einplo
ed to assert the title to the freehold the rules
as
to the matters
to
be
proved Ey the plaintiff and the defences opcn
to
the defendant nccessarily
depended upon the eubstantive yles
of
the law of real property which
had
grown
up
roiind liie real actions
.
J
2
Pollock
&
Maitland
625.
424

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT