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The Concept of Ownership

- 5 March 2014, 04:03
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One of the most fundamental concepts 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 moulds into what is required of it, thus creating an 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 a number of 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 which form and shape the direction of the law, particularly in relation to 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 an 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 dishonours an obligation.  For this reason, many banks and other mortgage lending institutions won’t even think about loaning money without a 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.

In spite of 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 harmonisation is largely taking effect by virtue of 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.

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