One of the
The most fundamental concept in private law, regardless of the jurisdiction, is
the concept of ownership. What belongs
to who is fundamental in many aspects of the law, ranging from who bears the
risk during the process of sale through to whether or not a theft has been
committed. Furthermore, ownership can be
vital in cases of personal insolvency and taxation law, showing its
significantly wider implications on the legal systems in which it forms a part.
For the
most of Europe and America, the common law forms the bulk of the law of the
jurisdiction. That means that the law if
a formulation of past results, interpretations, cases, and authoritative
academic writings, and sort of molds into what is required of it, thus creating advantageous flexibility and dynamism that is necessary to strengthen and
boost economies. In the common law
jurisdictions, property ownership naturally differs greatly, as there are some different interpretations, depending on which jurisdiction you
follow. Largely it is decided in a way
that fits within the specific private legal sector and can be modified or
changed to reflect areas of weakness as they arise. This flexibility, however, comes at the price
of certainty, and it is often complicated to effectively and definitively
determine who has what right at what time.
Alternatively,
many countries adopt the concept of the Roman Civil law, which has stood the
test of time as a comprehensive mechanism for determining property and civil
jurisdiction. Although largely
antiquated, the roman law is adapted to fit within the specific context of the
relevant jurisdiction, to provide a set of guiding principles that form and
shape the direction of the law, particularly concerning the property. One of the most important roman law concepts
regarding ownership is that or the jus in rem, otherwise known as a real
right. A real right is a right in a
property (where property means any object, tangible or intangible), contrasted
with a personal right which is a right in a person, i.e. a contract. The difference between a real right and a
personal right is that if a person/company goes insolvent, all personal rights
become worthless, merely executable against their sequestrated estate alongside
all other creditors. However, a real
right is a completely different animal, allowing a stake of ownership in an
asset, regardless of whether a person is liquidated, dies, or dishonors an
obligation. For this reason, many banks
and other mortgage lending institutions won't even think about loaning money
without security over a house or car:
the security is the real right, i.e. the stake to ownership, they need
to ensure they are covered, even if you can pay your liquid debts. The benefit of this roman interpretation is
that it provides a steadfast approach to solving problems, albeit a slightly
more rigid approach that requires considerable effort to overhaul.
Despite
their own differences, both broad methods of determining ownership and rights are
effective in their own way, and many jurisdictions choose a combination of both
to improve their approach to tackling property and ownership problems. As an area of international private law, it
becomes even more complex as parties are faced with the prospect of weighing up
competing interests and competing authorities.
Furthermore, it is the subject of many international conventions working
towards a resolution for harmonious property transacting. In Europe, this harmonization is largely
taking effect under the European Convention on Human Rights, which lays
down certain specific minimums for signatory countries to follow in regards to
property and other laws. Perhaps the
adoption of a similar style convention for the US would be particularly beneficial
in resolving property problems across frontiers, although it is submitted that
indeed intra-state property transfer is gradually becoming an easier
process. All in all the concept of
ownership is particularly interesting, and an area of law that is under
constant change and revision to aid economic and social progress on a worldwide
scale.