Property as a term is frequently used both in legal and non-legal discussions. Article VIII.-1:202 of the DCFR defines it as “the most comprehensive right a person, the ‘owner’, can have over property,77including the exclusive right, so far as consistent with applicable laws or rights granted by the owner, to use, enjoy, modify, destroy, dispose of and recover the property.” While the DCFR utilizes the term “ownership” to describe the most comprehensive right over a thing, this work refers to this right as property.78 Notably, other areas of national law can provide important limitations to the comprehensiveness of the rights that follow from property. These can, for example, stem from a constitutional or even international level like the European Convention on Human Rights, or from public law that might, for example, limit certain uses or rules concerning specific cultural objects.79 The following refers to property in private law, and is not concerned with the protection and understanding in public law.80
181.Absolute notion of property on the European continent
39
The definition of property under the DCFR will be familiar to most jurists who have been educated on the European continent. Under the continental European understanding, property is a right in rem.81 Due to this nature, property is interpreted to be effective vis-à-vis all third parties and must consequently be respected by everybody.82 Since the owner can generally rely on his or her rights toward everybody and not just certain parties, this conception of property is commonly referred to as “absolute property” or having an erga omnes83 effect. There are many other commonalities in the understanding of property (such as elasticity, the idea of a bundle of rights, etc.) which other scholars have analyzed and are not relevant for the work at hand.84
40
This notion of property, for example, underlies German law: Section 903, sentence 1 of the German Civil Code states: “Der Eigentümer einer Sache kann, soweit nicht das Gesetz oder Rechte Dritter entgegenstehen, mit der Sache nach Belieben verfahren und andere von jeder Einwirkung ausschließen.”85 This provision does not define what property is, but presupposes its existence.86 Property is understood to be an absolute right and to be effective vis-à-vis everybody.87 It is possible for multiple persons to share property in goods (co-ownership, Miteigentum), but it is not possible for multiple persons to each individually have undivided property in the same goods. It is not possible to speak of person A having a better title or stronger property than person B. Therefore, the notion of property is not relative, but absolute, because from the point of view of substantive law, the question of who has property in the goods is assessed comprehensively and independently from the litigants. The result of legal proceedings could thus be that none of the parties to the dispute has property in the goods.
41
It is sometimes stated that these continental European national laws follow “Roman law in matters of property law”.88 This statement requires further qualification to avoid the impression that property as a legal notion has always existed in this “absolute” form.
192.Relative, absolute, and otherwise different notions of property under Roman law
42
It would be inaccurate to broadly state that Roman law always had an absolute notion of property that is comparable to, for example, the continental European understanding that was called dominium. At least when the mancipatio,89 the oldest known form of a sale under Roman law, surfaced in the early republic or even earlier,90 Roman law had not yet developed a uniform and singular notion of property: On the one hand, the scope and content of property in early Roman law was not clearly differentiated from possession and it also encompassed limited property rights.91 On the other hand, the procedural environment (legis actio sacramento in rem) entailed that both parties had to claim and substantiate their respective property in the goods and the judge would find which party has the better right in the goods.92 The action could not be dismissed with the argument that neither of the litigants had (absolute) property in the goods.93Kaser refers to it as “relative” property.94 Hence, in the early stages of Roman law, there was neither an absolute notion of property, nor a uniform notion of property in the goods.95
43
With the advent of a more absolute notion of property, plaintiffs under the rei vindicatio had to substantiate their property claim with a legal basis that provided them with a legal position that was to be respected by everyone.96 The gap left by the restriction in the understanding of property was filled by the new actio publiciana, which provided protection against the possessor with the weaker right, and supplanted the idea of the protection of relative prop20erty.97 Nevertheless, different notions of property continued to exist under classical Roman law. The dominium ex iure Quiritium (Quiritiary property) was only available to Roman citizens and only for certain movables and Italian land.98 It could only be transferred by mancipatio or in iure cessio, while the mere traditio was not sufficient.99 The Praetor provided the buyer, who had merely been delivered the goods for which a mancipatio or in iure cessio would have been necessary to acquire Quiritiary property, with a defense against the rei vindicatio by the seller.100 Following Gaius, who considered the buyer to have the goods “in bonis”, this legal position is called Bonitary property.101 Parcels of land in Roman provinces were not a possible subject of Roman private property law.102 Thus, while there was a more absolute notion of property under classical Roman law, different notions of property remained, depending on the object and the subjects of the sale.
44
After a relapse to a more blurred term of property in post-classical law, Justinian abolished the differences between Quiritiary and Bonitary property.103 He established a uniform concept of property.104 Tracing the origins of an absolute notion of property back to this stage is correct, but it hides the fact that Roman law (and specifically Roman sales law) had to work with different notions of property, which is comparable to today’s situation under the CISG.
3.Relative notion of property
45
Less familiar, and diverging from the notion of property under the DCFR, is the “relative notion” of property often found in common law jurisdictions. It appears that the relativity of property in England was not influenced by the understanding of relativity of property under Roman law.105 A more pragmatic approach was chosen and the distinction between possession and property was not strictly drawn.106 The law of property in chattels was “long 21neglected and mainly developed only as a part of the commercial law, more particularly in connection with sales of goods and the transfer of property in them.”107
46
In the realm of sales law, for example, section 61(1) of the Sale of Goods 1979 defines “property” as referring to general property in goods, and not merely a special property. Section 4 of the Consumer Rights Act 2015 defines “ownership” in the same manner. Special property is a limited (possessory) right in the goods, such as the right which a bailee holds.108 This distinction only highlights whether a person holds a derivative right and does not indicate whether this right can be claimed against everybody, and thus, be considered “absolute” or “relative”.109 It seems, however, generally accepted that all notions of “property”, “ownership” or “title” are best described as being only relative in nature.110 Thus, instead of asking who (of all people in the world) is the true and only “owner” of the goods, an English jurist would ask whether person A or person B has a “better title” to the goods.
47
Another emanation of the concept of “relative” property was the long-held perception that litigants should not be able to plead that a third person had a superior title in the goods to defend themselves from the opposing litigant’s claims of having a better title (sometimes referred to as jus tertii). While this is still the case in some common law jurisdictions, like Singapore,111 section 8(1) of the Torts (Interference with Goods) Act 1977 abolished this rule in England.112 Although this could be taken to signify a slight shift toward an absolute notion of property under English law, it is not considered to have had a direct effect on the Sale of Goods Act 1979, since the rules on prop22erty therein were already codified in 1893,113 and the abolition of jus tertii was meant to protect the defendant from double-liability and not introduce a concept of absolute property.114 Moreover, allowing a defendant to name the person with the best title to the goods and have him or her joined to the proceedings should not be overestimated in terms of a shift, as was illustrated by the case Costello v Chief Constable of Derbyshire Constabulary.115 The police seized a stolen car from Costello, but neither prosecuted him nor found the person the car had been stolen from. The police nevertheless refused to give the car back to Costello, who in turn sued the police for conversion. Conversion is a tort claim that concerns “taking with the intent of exercising over the chattel an ownership inconsistent with the real owner’s right of possession”.116 The Court of Appeal found for Costello, since his title to the goods was better than that of the police, and the person with a better title was not named. In other words, for the purposes of this litigation, Costello had the property in the car. Hence, section 8(1) of the Torts (Interference with Goods) Act 1977 did not help the police as much as a concept of absolute property might have.117
48
From a continental European perspective, one might be inclined to at least equate the “best title” (a term that can be used under English law) with absolute property. Yet, as David Fox explains, these terms should not be put on equal footing: Even if somebody has the best title to a good, somebody else might get possession of it and, thereby, establish a relative title to the goods that is good against everybody but the person with the best title.118 Hence, because possession and property are mingled, even the acceptance of a “best title” does not approximate the concept of absolute property. Absoluteness or relativeness do not determine whether a third party can be considered to establish a new legal position, which would also be possible under a concept of absolute property, for example in the case of a bona fide acquisition. It is rather a question of whether there can be only one owner of the goods (whose legal position might nevertheless be extinguished) or whether multiple persons can have competing titles to the same proprietary interest.
23
49
As far as the text in the following refers to “relative” property, it is to be understood as it is described here, although in other texts this expression can refer to different aspects.119
4.Reduced significance of a “lump” concept of property
50
In some legal systems the exact notion of property has lost its appeal as a subject in the realm of sales law, because the idea that one “lump” concept could answer many different questions is considered a shaky premise.
a)Nordic countries
51
Nordic countries (Finland, Sweden, Denmark, Norway, Iceland) have a long tradition of looking at the respective conflicts of different parties with regard to the goods instead of using property as a central pillar to decide these conflicts. These laws have only minimally been influenced by the common law and Roman law.120 For historical and political reasons, co-operation between the Nordic countries led to far-reaching unifications of commercial law and even property law.121 At the end of the 19th century, the Danish law professor Torp was among scholars that started to criticize the Roman notion of property and the related idea that all rights to the goods are transferred at one single point in time.122 This idea has since been developed further,123 and is considered a major difference between the approaches of legal systems with regard to those questions of property that were heavily discussed in projects of unification.124 This is not to say that jurists in Nordic countries would not be aware of the term property or even refrain from using it in legal debate. They distinguish static property rights, where no transfer of the legal position is in question and the concept of property can be used, from 24dynamic property rights, where legal positions have to be allocated during a transaction.125
52
Those adopting the latter approach, labeled as a “functional approach”,126 do not consider it worthwhile to find a theoretical and comprehensive explanation of what property is.127 The point of origin in the debate is the respective conflict, not the dogmatics of property.128 The notion that a single concept and one relevant point in time can determine many different outcomes in various contexts fails to persuade jurists from Nordic countries. Rather, the transfer of property occurs gradually.129 Hence, this approach does not fall under the categories of relative or absolute notions of property, but should rather be understood as part of a different category that puts less relevance on the notion as such.130
53
There is no general written law on movable property in the Nordic countries, but rather fragments can be found in different acts to specific questions.131 For example, there are rules containing conditions for the protection of a buyer from a seller’s creditors if the buyer leaves the seller in possession of the goods,132 or for the protection of the seller from the buyer’s creditors if the buyer does not pay the price.133 Nevertheless, these rules do not mention “property” in providing rules for the respective conflict. Rules that do in fact mention property make it clear which single aspect and which single conflict are being referred to.134
25b)USA and its UCC
54
The legal situation under the Uniform Commercial Code (UCC) in the USA exhibits certain commonalities with Nordic laws and legal realist thought.135 Although the UCC has not completely abandoned the notion of property as understood in this work (the UCC refers to it as title and uses property to refer to the thing itself), it has severely limited its impact as a concept. Section 2-401 of the UCC opens by stating that
“[e]ach provision of this Article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this Article and matters concerning title become material the following rules apply: [...].”
55
This general stance of the UCC can be traced back to strong opinions held by one of the main drafters of the UCC, Llewellyn. His famous article “Through Title to Contract and a Bit Beyond” from 1938 reveals his hostile opinion on “title” as a lump concept.136 His “narrow-issue approach” became a fundamental principle of the UCC and consists in addressing the respective narrowly defined situations instead of referring to one general principle.137 The fact that the transfer of property became mostly irrelevant for the question of remedies between the parties was not met with applause everywhere.138 To this day, some scholars attempt to expose that the proprietary structures still exist under the UCC, and that the courts have not always abandoned the old title-structures.139 As far as a concept of title is used, the idea of it as a bundle of sticks, of which individual (but not all) sticks can be transferred at the same time, while the holder of the title retains some, convinces many jurists.140 This emphasis on the respective sticks of the bundle stands in contrast to the continental European notion that emphasizes the 26bundle over the respective sticks.141 It is, nevertheless, difficult to ascertain whether title or property are relative or absolute notions in the terminology employed above.142
5.Summary
56
The plural use of “notions” (of property) in this section’s heading is deliberate and significant. Property is, by no means, a singular concept in private law as reflected by its many different definitions and uses around the world. While the differences in the transfer of property are frequently emphasized and compared, the different understandings of how property in goods as a concept in different legal systems is remains less explored. For purely functional comparative law, this might be appropriate, however, the highlighted differences in national concepts become relevant when considering how preconceived national understandings influence the understanding of the CISG.
In this provision, property refers to the thing in contrast to the legal rights in the thing, cf. for the use of property and ownership in projects on the European level above para. 36.
My translation: The owner of a thing may deal with the thing at his or her discretion and exclude others from every influence to the extent that neither a statute nor third party rights are not in conflict with this freedom.
A mancipatio is a “pretended sale in presence of five citizens as witnesses and a libripens holding a pair of copper scales. The transferee, with one hand on the thing being transferred, and using certain words of style, declared it his by purchase with an as (which he held in his other hand) and the scales (hoc aere aeneaque libra); and simultaneously he struck the scales with the coin, which he then handed to the transferrer as figurative of the price”, Muirhead/Goudy/Grant, p. 53.
Kaser, Eigentum und Besitz, p. 8; support by Wubbe, 28 Tijdschrift voor Rechtsgeschiedenis/ Legal History Review (1960), 13, 35. For evidence of such relative property under demotic and graeco-egyptian law, see Rabel, Mangels im Rechte, p. 48.
Wubbe, 28 Tijdschrift voor Rechtsgeschiedenis/Legal History Review (1960), 13, 36: “Denn wenn die causa vindicandi entscheidend ist für das bessere Recht zweier Prätendenten, gibt es nicht nur kein absolutes Eigentum, es gibt auch keinen einheitlichen Eigentumsbegriff.”
See the detailed discussion of the development of Roman law in this regard by Kaser, Eigentum und Besitz, pp. 277–312; Kaser/Knütel/Lohsse, § 37 para. 24.
Pollock/Maitland, pp. 77–78; Merryman, 48 Tulane Law Review (1974), 916, 919; von Bar/Clive, p. 4257 para. 23 state that the procedural devices for the recovery of property were influenced by Roman law in contrast to the concept. But see Giglio, 86 RabelsZ (2022), 91, 93 et seq.
Dalhuisen, p. 36. Birks, 11 King’s College Law Journal (2000), 1 considers the “law of personal property [to be] in a bad state”; skeptically, Bridge/Gullifer/Low/McMeel, paras. 1-015, 1-066.
Pollock/Wright, p. 5: “[W]hen distinction became necessary in modern times, the clumsy term ‘special property’ was employed to denote the rights of a possessor not being owner”; Bridge, Sale of Goods, para. 2.50.
It should be noted that the words “absolute” and “relative” are sometimes also used to describe this aspect of derivativeness, but this terminology is not employed in this work, cf. below fn. 120.
Gordley, p. 3; Battersby/Preston, 35 The Modern Law Review (1972), 268, 269; Bridge/Gullifer/Low/McMeel, para. 18-006; Philbrick, 24 Iowa Law Review (1938–1939), 268, 277–278. This understanding also extends into equity and equitable titles, D. Fox, 65 Cambridge Law Journal (2006), 330, 351 et seq.
Sect. 8(1) Torts (Interference with Goods) Act 1977: “The defendant in an action for wrongful interference shall be entitled to show, in accordance with rules of court, that a third party has a better right than the plaintiff as respects all or any part of the interest claimed by the plaintiff, or in right of which he sues, and any rule of law (sometimes called jus tertii) to the contrary is abolished.”
Fouldes v Willoughby (1841) 81 M & W 540, 550 (at that time this definition was expressed in connection with the action “trover”, which has been replaced by “conversion” under modern English law).
Sometimes it is used to refer to the difference between general property (absolute) and special property (relative), Zogg, p. 11. At other times, it is used to refer to the relative effect of a transaction, i.e., that the acquisition from the rightful owner cannot be relied upon vis-à-vis certain other parties, for example, under Art. 717 Swiss Civil Code, BSK ZGB II/Wolf/Wiegand, Art. 641 ZGB para. 22.
Martinson, pp. 69, 70 for example claims that the last “shakes in the emancipation procedure could be said to have ended as late as the 1970-ies.” Cf. also von Bar/Clive, pp. 4260 et seq. paras. 35–36.
Cf. for example, Håstad, 17 European Review Private Law (2009), 725 with regard to the DCFR; Martinson, pp. 69, 72 fn. 7 with regard to the Study Group on a European Civil Code; Lilja, European Property Law Journal 2014, 52, 53; Gottheiner, 18 RabelsZ (1953), 356, 357.
Håstad, Property Rights regarding Movables, sub. 17.2.1. Cf. also Kruse, 7 American Journal of Comparative Law (1958), 500, who analyzes English, French, German, and United States’ law in this fashion with regard to different point in times and different concerned parties.
Lag (1845:50 s. 1) om handel med lösören, som köparen låter i säljarens vård kvarbliva (Act (1845:50 s. 1) on trade in movables that the buyer leaves in the seller’s custody).
Sect. 54(4) Finish Sale of Goods Act 1987; sect. 54(4) Norwegian Sale of Goods Act 1988, sect. 54(4) Swedish Sale of Goods Act 1990; Martinson, pp. 69, 81 et seq.
Highlighting the similarities, Håstad, 17 European Review Private Law (2009), 725, 727; Pelzer, p. 20; highlighting the differences, Lilja, European Property Law Journal 2014, 52, 60.
Llewellyn, XV NYU Law Quarterly Review (1938), 159, 165. Similarly skeptical toward “property” and “title”, Cohen, XXXV Columbia Law Review (1935), 809, 820.
See for example, the risk of loss in sect. 2-509 et seq. UCC; the buyer’s right to the goods in the seller’s insolvency in sect. 2-502 UCC; the decision whether buyer or seller can sue a third party for damages to the goods in sect. 2-722 UCC; cf. also Lilja, European Property Law Journal 2014, 52, 57.
Stoebuck/Whitman, p. 6; Graziadei, pp. 71, 83; Barron, 82 University of Cincinnati Law Review (2014), 57. Skeptically, Penner, 43 UCLA Law Review (1996), 711, 714.
Cf. Gabriel, 17 Brooklyn Journal of Corporate, Financial & Commercial Law (2022), 39, 47 who argues that title in a sales transaction can be a conclusion not a requirement.
