Private Law Theory

Abstract:
A widely asserted proposition is that all property rights are rights in rem and that rights in personam, such as debts and bank accounts, are not property rights. The proposition was advocated by John Austin based on his interpretation of Roman law. The obvious difficulty with the proposition is that it is irreconcilable with the case law because a number of cases from ultimate appellant courts confirm that debts are property rights. The author examines relevant case law and interpretations of Roman law to argue that the proposition that all property rights are rights in rem is based on a misunderstanding of Roman law. The author concludes that the assertion should be rejected as erroneous. Debts in the form of money obligations owed by one person to another are indeed property rights.

Tarrant, John, Obligations as Property (November 18, 2012). University of New South Wales Law Journal, Vol. 34, No. 2, 2011; UWA Faculty of Law Research Paper.

First posted 2012-11-20 07:50:17