James Stern, ‘Mutual Exclusivity and the Nature of Property’

Property has long been understood to center on ‘exclusive’ rights, but the nature of exclusivity in property law is poorly understood. This article shows that property is governed by a general principle of mutual exclusivity, which differs significantly from the various ways in which property theorists have described property’s exclusive nature. The mutual exclusivity principle holds that one valid property right forecloses the existence of an inconsistent property right held by someone else. While two people can have contractual rights to purchase the same item of property, for instance, those two people cannot have their own separate and independent ownerships of it. The article shows how the mutual exclusivity principle is fundamental to the structure of property law and is often the key determinant that distinguishes property from other kinds of legal relationships, in both form and function. Unlike other conceptions of exclusivity prevalent in commentary on property, mutual exclusivity holds true not only for ownership of land and physical objects but for other types of rights, such as security interests, servitudes, intellectual property, and corporate shareholding.

In addition to identifying the mutual exclusivity principle and demonstrating its fundamental role in organizing property, the article makes three other contributions to the literature on property. First, it shows how the mutual exclusivity principle explains a number of basic institutional features of property law, such as the use of possession-based rules, the system of future interests, recording acts, and the negative structure of property rights. Second, it modifies the influential theory that property is heavily shaped by problems of high information costs. Many of the ways property entails relatively high information costs result from the mutual exclusivity principle, rather than of the scope of property duties, as information cost theories often suppose. Finally, the article calls for a change in direction in the property literature more broadly, arguing that American property scholarship has been excessively preoccupied with questions about the scope and strength of property rights, overlooking the critical separate problem of ascertaining who happens to hold a given right. Property, it argues, is at least as much about title chains, patent searches, and creditor priorities as it is about trespass, remedies, and eminent domain.

Stern, James Y, Mutual Exclusivity and the Nature of Property (August 18, 2015).

First posted 2015-08-20 06:08:52

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