Private Law Theory

Introduction:
“This Article proposes a new concept – ‘aggregate alienability’ – as a lens by which to understand the complicated law regarding the validity of privately-imposed restraints on the alienability of real property. Modern scholars have tended to explain this law – which sometimes invalidates restraints and sometimes upholds and enforces restraints – as simply a ‘naked preference’. In those instances in which the restraint is upheld and enforced, the law is said to prefer the alienation rights of the grantor (the party imposing the restraint). When the restraint is stricken, the law is said to prefer the alienation rights of the grantee (the party on whom the restraint is imposed). This Article rejects the notion that the nuanced law regarding the validity of restraints on alienability is best explained as simply a naked preference in favor of some parties over others. Instead, this Article argues that the rules regarding the validity of restraints on alienation are actually based on a rough prediction as to how to maximize property alienability …” (more)

Luke Meier and Rory Ryan, ‘Aggregate Alienability’, 60 Villanova Law Review 1013 (2015).

First posted 2016-01-08 13:00:32