PROPERTY LAW

principles, policies, and rules by which disputes over property are to be resolved and by which property transactions may be structured so that disputes may be avoided. What distinguishes property law from other kinds of law is that the principles, policies, and rules of property law deal with the relationships between and among members of a society with 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 reflects the family structure of the society in which it is found. Since it deals with such fundamental issues as the economy and the structure of the family, property law reflects the politics of the society in which it is found. 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 focus is particularly on the different ways in which these systems attempt to resolve the conflicts that result from their historical tendency to regard absolute individual ownership of property as normative. Additional reading General sources An accessible, comprehensive treatment of the subject with a range as broad as that of this article is to be found in separate chapters of Frederick H. Lawson (ed.), Property and Trust, published in fascicles as vol. 6 of a major undertaking of the International Association of Legal Science, International Encyclopedia of Comparative Law (1971 ). The civil-law systems (with particular focus on Louisiana) are treated comparatively in A.N. Yiannopoulos, Property: The Law of Things, Real Rights, Real Actions, 2nd ed. (1980), kept up-to-date by supplements, Personal Servitudes: Usufruct, Habitation, Rights of Use, 3rd ed. (1989), and Predial Servitudes (1983). History The origins of the Western idea of property are examined in Barry Nicholas, An Introduction to Roman Law (1962, reprinted 1987); W.W. Buckland, A Text-Book of Roman Law from Augustus to Justinian, 3rd ed., rev. by Peter Stein (1963, reprinted 1975); Max Kaser, Das rmishe Privatrecht, 2nd rev. ed. (197175); Frederick Pollock and Frederick William Maitland, The History of English Law Before the Time of Edward I, 2nd ed., 2 vol. (1898, reissued with a new introduction by S.F.C. Milsom, 1968); A.W.B. Simpson, A History of the Land Law, 2nd ed. (1986), also on English law; and on that of the Continent, Helmut Coing, Europisches Privatrecht, 2 vol. (198589); and Paolo Grossi, An Alternative to Private Property: Collective Property in the Juridical Consciousness of the Nineteenth Century (1981; originally published in Italian, 1977). For the United States, see Lawrence M. Friedman, A History of American Law, 2nd ed. (1985). Theory Surveys of classical and of early modern theories of property law are found in J. Roland Pennock and John W. Chapman (eds.), Property (1980), which includes a look at the future of the Western concept of property in Charles Donahue, Jr., The Future of the Concept of Property Predicted from Its Past, pp. 2868; Richard Tuck, Natural Rights Theories: Their Origin and Development (1979); and Richard Schlatter, Private Property: The History of an Idea (1951, reprinted 1973). Specific modern legal systems For American developments, see Roger A. Cunningham, William B. Stoebuck, and Dale A. Whitman, The Law of Property (1984); Ray Andrews Brown, The Law of Personal Property, 3rd ed., rev. by Walter B. Raushenbush (1975); Richard R. Powell, The Law of Real Property, rev. by Patrick J. Rohan (1949 ), a multivolume classic treatise, still being updated with supplements; and A. James Casner (ed.), American Law of Property, 7 vol. in 8 (195254). For England, see Frederick H. Lawson and Bernard Rudden, The Law of Property, 2nd ed. (1982); Kevin Gray, Elements of Land Law (1987); Robert Megarry and H.W.R. Wade, The Law of Real Property, 5th ed. (1984); and J. Crossley Vaines, Crossley Vaines' Personal Property, 5th ed., rev. by E.L.G. Tyler and N.E. Palmer (1973). French law is reviewed in Maurice S. Amos, Amos & Walton's Introduction to French Law, 3rd ed., rev. by Frederick H. Lawson, A.E. Anton, and L. Neville Brown (1967); Christian Larroumet, Droit civil, vol. 2: Les Biens, droits rels principaux (1985); Gabriel Marty and Pierre Raynaud, Les Biens, 2nd ed. (1980), and Les Rgimes matrimoniaux, 2nd ed. (1985); and Marcel Planiol and Georges Ripert, Trait pratique de droit civil franais, 2nd ed., 14 vol. (195262).For Germany, see Norbert Horn, Hein Ktz, and Hans G. Leser, German Private and Commercial Law, trans. from German (1982); E.J. Cohn, Manual of German Law, 2nd rev. ed., 2 vol. (1968); Ernst Wolf, Lehrbuch des Sachenrechts, 2nd ed. (1979); Ludwig Enneccerus, Theodore Kipp, and Martin Wolff (eds.), Lehrbuch des brgerlichen Rechts, vol. 1 in 2: Allgemeiner Teil des brgerlichen Rechts, 15th ed., rev. by H.C. Nipperdey (195960), vol. 3: Sachenrecht, 10th ed., rev. by Martin Wolff and L. Raiser (1957), and vol. 5: Erbrecht, 13th ed., rev. by Helmut Coing (1978); and Kurt Rebmann and Franz-Jrgen Scker (eds.), Mnchener Kommentar zum Brgerlichen Gesetzbuch, 2nd ed. (1984 ), planned for 7 vol., some multipart, of which 5 had been published by 1989. Specific studies Following are works discussing other topics, listed in the order they are treated in the text. The vocabulary of jural relationships is presented in Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning: And Other Legal Essays, ed. by Walter Wheeler Cook (1923), available also in later abridged editions. For non-Western systems of property, see chapter 2, Structural Variations in Property Law, published as a separate fascicle of the incomplete vol. 6 of the International Encyclopedia of Comparative Law, covering Islamic, Hindu, and African law, as well as that of socialist countries; and Max Gluckman, The Ideas in Barotse Jurisprudence (1965, reprinted with a new preface and amendments, 1972).Evolutionary anthropology and the development of the concept of property are addressed in Friedrich Engels, The Origin of the Family, Private Property, and the State (1902, originally published in German, 1884), also available in many later editions and translations; Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1861), available in many later editions; Peter Stein, Legal Evolution: The Story of an Idea (1980); and Alan Watson, The Evolution of Law (1985).S.F.C. Milsom, The Legal Framework of English Feudalism (1976, reprinted 1986), examines the tradition of land tenure; D.R. Coquillette, Mosses from an Old Manse: Another Look at Some Historic Property Cases About the Environment, Cornell Law Review 64:761821 (June 1979), discusses the nuisance law; William B. Stoebuck, A General Theory of Eminent Domain, Washington Law Review 47:553608 (August 1972), traces the history of the governmental authority over private property; and David J. Seipp, Bracton, the Year Books and the Transformation of Elementary Legal Ideas' in the Early Common Law, Law and History Review 7:175217 (Spring 1989), analyzes the concept of property in Bracton. On possessive individualism, see C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (1962, reprinted 1985). George L. Haskins, Extending the Grasp of the Dead Hand: Reflections on the Origins of the Rule Against Perpetuities, University of Pennsylvania Law Review 126:1946 (November 1977), explores social conflicts in connection with this rule. See also J.H.C. Morris and W. Barton Leach, The Rule Against Perpetuities, 2nd ed. (1962, reprinted 1986); and Ronald H. Maudsley, The Modern Law of Perpetuities (1979). C. Reich, The New Property, Yale Law Journal 73(5):733787 (April 1964), looks at government-granted rights as property. Property and personal financial security are the topic of Mary Ann Glendon, The New Family and the New Property (1981), and The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (1989), focusing on marital property. For corporate property, see Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private Property, rev. ed. (1968).Definitions of ownership are given in Felix S. Cohen, Dialogue on Private Property, Rutgers Law Review 9(2):357387 (Winter 1954); and A.M. Honor, Ownership, ch. 5, pp. 107147 in A.G. Guest (ed.), Oxford Essays in Jurisprudence (1961). Modern legal relations between landlord and tenant are examined in Charles Donahue, Jr., Change in the American Law of Landlord and Tenant, Modern Law Review 37:242263 (May 1974). For trusts, see Austin Wakeman Scott, The Law of Trusts, 3rd ed., 6 vol. (1967), with a 4th ed., by Austin Wakeman Scott and William Franklin Fratcher, appearing in parts since 1987. Civil-law functional equivalents of the trust are discussed in Christian De Wulf, The Trust and Corresponding Institutions in the Civil Law (1965). Francis Allen, Offenses Against Property, pp. 5776 in Louis B. Schwartz (ed.), Crime and the American Penal System (1962), studies the protection of property in criminal law. Donald G. Hagman and Julian Conrad Juergensmeyer, Urban Planning and Land Development Control Law, 2nd ed. (1986); and J.F. Garner and N.P. Gravells (eds.), Planning Law in Western Europe, 2nd rev. ed. (1986), deal with public control of land use. Constitutional protection of property is the subject of Bruce A. Ackerman, Private Property and the Constitution (1977). A comparative treatment of gifts (both inter vivos and testamentary) is offered in John P. Dawson, Gifts and Promises: Continental and American Law Compared (1980). American wills are examined in M.L. Fellows et al., An Empirical Study of the Illinois Statutory Estate Plan, University of Illinois Law Forum 1976:714745 (1976). Property from the perspective of law and economics is presented in G. Calabresi and A.D. Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, Harvard Law Review 85:10891128 (April 1972); and A.M. Polinsky, Controlling Externalities and Protecting Entitlements: Property Right, Liability Rule, and Tax-Subsidy Approaches, Journal of Legal Studies 8(1):148 (January 1979). Charles Donahue, Jr. Objects, subjects, and types of possessory interests in property Property law has been defined in this article as the sum of jural relationships with respect to things and things as all tangible things and those intangibles that the legal system in question classifies as property. This definition creates difficulties when one comes to describe property systems generally because it mixes a definition of things that is external to a given legal system with a definition of things that is dependent on the legal system in which it is found. The difficulty becomes more acute as one moves from general definition to subordinate levels of classification, for at these levels of classification, almost all the terms are specific to a given legal system or group of systems. Most of these difficulties of bias in favour of one legal system or another can be avoided by acknowledging in advance where a particular scheme of classification comes from. The one used in this article is based on that employed in Western legal systems. Where the Anglo-American and the civil-law systems diverge, the categories of the Anglo-American system are considered first and are then compared functionally with those in the civil-law system. The discussion begins by identifying the objects (things) and subjects (persons and groups) of the jural relationships with regard to things in Western legal systems generally. There follows a treatment of possession and ownership, categories that are closely related historically in the West. Then the discussion deals with divisions of ownership and in so doing contrasts the divided ownership system of the Anglo-American law with the devices in the civil-law system that achieve many of the same practical results while employing a quite different set of concepts. The section closes with the procedural protection of property interests. Objects Classification of things The Roman jurist Gaius (c. AD 160) includes in his treatment of the law of things the acquisition and loss of individual things, succession (both testate and intestate, including legacies, with some references to what today would be called bankruptcy), and the acquisition and extinction of obligations (contracts and delicts). If one views Gaius' category of the law of things as equivalent to the descriptive definition of the law of property used in this article, then his category property is very broad indeed. In civil-law systems today the term property applies to those tangible things that can be conveyed inter vivos and to a very few, if any, intangibles. Patrimony is a broader term. It includes everything that is the object of the law of succession. Obligations are defined in contradistinction to property. They do not receive the procedural protection that property interests receive, and the state is not as constrained in dealing with them as it is in dealing with property interests. Anglo-American law is generally less concerned with matters of definition than is the civil law. Except in the United States, where defining something as property automatically entitles it to constitutional protection, there is less discussion in the Anglo-American legal system of whether a given interest or a given thing should be classified as property or not. Nonetheless, Anglo-American law shows broadly the same characteristics as the civil law. Almost all tangible things are conceived of as being capable of supporting property interests; some intangibles are treated the same as tangibles, and some are not. Use of property interests The previous section focused on the right to possession of property. This section focuses on the privilege of use of propertythe extent to which the law allows an owner or possessor of property to use the property and how an owner or possessor of property may grant privileges of use to others. The fact that person A's privilege of using his property inevitably conflicts with person B's privilege of using his, if their properties are located near each other, has led throughout the West to extensive limitations on the privilege of use, first in the area of private law and, increasingly today, in the area of public law. Nuisance law and continental parallels At English common law the basic limitations on the privilege of use of property were incorporated in the law of nuisance, the action that a landowner could bring if his privilege of using his land was being interfered with. Historically, nuisance law seems to have been deeply conservative; existing land uses were protected against more recent ones. A hierarchy of land uses favoured residential uses over agricultural and agricultural over industrial. (Commercial uses were sometimes placed after residential, sometimes after agricultural.) The maxim sic utere tuo ut alienum non laedas (use your own thing so as not to harm that of another) expressed this conservative tendency, though it hardly offered a precise solvent for difficult cases. Today, nuisance law is still used in the Anglo-American system as a means of resolving land-use disputes. The hierarchy of land uses is still employed, tacitly if not expressly; the maxim is still occasionally quoted, and at least in close cases the land use that is prior in time will prevail over subsequent ones. What has changed about nuisance law is the fact that today the element of judicial discretion in resolving the basically unresolvable conflict between two equally privileged land uses is more frankly recognized. Nuisance is defined as the substantial interference with the plaintiff's use of his land by the unreasonable conduct of the defendant. Each of the qualifying words in the definition can lead to an exercise of judicial discretion. One may ask, for example, whether the harm caused by the defendant's activity is substantial. A judgment is called for, aided, of course, by precedent, but always unique to the given case. Hazards to health, offenses to the sense of smell or hearing, and demonstrated economic loss are frequently found to be substantial harms. Offenses to the sense of sight and injuries to peculiarly sensitive activities (such as maintaining a mink farm) are much less likely to be found substantial. The second stage in determining that a nuisance exists requires a finding that the defendant's activity was unreasonable. Unreasonable conduct is a relative matter. It may be unreasonable to engage in heavy manufacturing in a residential area and perfectly reasonable to do so in an industrial area. The care with which the defendant conducts his activities is of relevance, but it is not decisive. Once a nuisance is found, there still must be, in most jurisdictions, a balancing of the equities to determine whether the defendant will be enjoined from his activities or whether the plaintiff will have to content himself with money damages. In recent cases, economic considerations have come to the fore in making this determination. Thus, in a celebrated New York case, the court refused to enjoin the operations of a cement plant that represented a $45 million investment and a large number of jobs for a small community but instead awarded money damages to the nearby residents calculated on the basis of the reduction in the capital value of their houses that would result from the continued presence of the smoke-emitting plant (Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 ). Unlike the English common law, Roman law had no single action whereby a plaintiff could complain of his neighbour's interference with his land use. Various private actions did exist by which a plaintiff could complain of particular noisesome land uses, but the jurists never seem to have generalized about them. The adoption by modern civil law of the Roman conception of ownership and of substantial parts of the Roman scheme of actions has meant that modern civil law also lacks a unified protection of the privilege of use like that of the Anglo-American nuisance law. In France this lack has been made up by the development of the concept of abus de droit (abuse of right). The concept has been extensively used in situations where the defendant has employed his land in a given way in order to interfere with his neighbour's land use. The paradigm case came from Colmar in the middle of the 19th century, when the defendant built a large and totally unnecessary chimney on the roof of his house in order to block the light to his neighbour's windows (2 mai 1855, D.1856.2.9). From there the concept has developed so that it may be used in situations where the motives of the defendant are not so obviously malicious as they were in the Colmar case, but it has never involved the French judiciary as much in land-use questions as has the Anglo-American. German law, on the other hand, has developed a concept similar to that of Anglo-American nuisance law, based on the general requirement in the code that one act in good faith and on a specific provision dealing with smoke and noise.