‘Revolutions in Personal Property: Redrawing the Common Law’s Conceptual Map’ in S Worthington, A Robertson and G Virgo, Revolution and Evolution in Private Law (Hart Publishing, 2018), Ch 11 (original) (raw)

Abstract

In this chapter I suggest that English property law is not concerned with ‘assets’, and which assets are classed as property and which are not. Nor is it concerned with which ‘interests’ are proprietary and which are not. Instead, it is about the sharing of assets, and which shared or derivative interests are possible. We could say that any asset that can be shared is ‘property’, so long as we then recognise that the key ‘property’ questions are exclusively concerned with the various possible sharing arrangements and shared interests in that asset. One of the plainest examples of this is with debt. In a classificatory system that divides property and obligation, a contract creating a debt is the clearest example of ‘obligation’. Yet this asset can be ‘shared’: it can be held on trust or used as security, and those arrangements can be put in place by agreement or by operation of law. So is a debt really ‘property’, rather than obligation, despite the initial assertion to the contrary...

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