Category Archives: Property

Rachael Walsh, ‘Deliberative Property – Managing Complexity in Property Systems’

ABSTRACT The chapter demonstrates how ‘deliberative property’ offers a pathway for mediating between the complexity-management concerns of two competing schools of thought in property theory, loosely termed ‘progressive’ and ‘information’ perspectives. Deliberative property does so by facilitating information-intensive contextualisation of property disputes and direct stakeholder engagement, while at the same time containing the broader systemic […]

Luigi Moccia, ‘Basic Ways of Defining Property’

ABSTRACT Anyone who engages in a discourse about ‘property’ legally understood is faced at the outset with the need to clarify the variety of uses (or abuses) and meanings of the word. The essay is not about ‘definitions of property’ in the sense that it does not try to search for clear-cut definitions of the […]

Carol Rose, ‘Property Law’

ABSTRACT Both detractors and proponents often describe property in individualistic terms, ignoring property’s character as a social institution that depends critically on participants’ respect of others’ claims. Informal property regimes are pervasive among small or specialized social groups, but neither informal property nor property law emerges unless resources become scarce. However, property law differs in […]

Antonia Layard, ‘Public (Trust) Rights in Open Space: Day v Shropshire Council

ABSTRACT In Day v Shropshire Council (Day), the Supreme Court considered the effect of a statutory trust under section 10 of the Open Spaces Act 1906 on a subsequent purchaser. Finding for the claimant, a local resident resisting development, the Supreme Court unanimously held that the local authority’s failure to give notice and consider objections […]

Pittavino and Walsh, ‘Donationes Mortis Causa of Real Property: Missed Opportunities and Foreclosed Possibilities’

ABSTRACT The doctrine of donatio mortis causa defies and problematises the taxonomy of the common law. It stands both as an archaic monument to Western legal thought several millennia old, and as an informal, intimate, and human mode of disposition of property in the face of death. In New South Wales, there is stark resistance […]

Sanderson and Popescu, ‘Tracing Without Fiduciaries: Realism in Australian Equity’

ABSTRACT In this note we argue that Full Federal Court’s decision in RnD Funding Pty Limited v Roncane Pty Limited [2023] FCAFC 28 understates the significance of its own change to the law. This is due to overlooking a persistent fiction within the English authorities on tracing, which adopted the fiduciary requirement as a gauze […]

Darryn Jensen, ‘Hume’s Conventionalist Account of Property and the History of English Land Law’

ABSTRACT The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that […]

Alban Guyomarc’h, ‘Property on space resources: The search for a terminology’

ABSTRACT By the end of one or two decades, several competing lunar bases will be installed or in the process of being installed, most probably located around the Moon’s South Pole and its water resources. By the end of three decades, companies will probably be extracting resources from the moon with a commercial and lucrative […]

Christian Armbrüster, ‘Stemming Illegal Trade of Cultural Property – How Can Private Law Contribute?’

ABSTRACT This contribution explores how private law may contribute to the protection of cultural property against illegal trade. First, the impact of private international law is examined, as the national rules that govern the applicable rules on loss and acquisition of ownership differ considerably. This chapter argues that the law of the country from which […]

‘Case Law Update: Savage v Savage [2024] EWCA Civ 49′

In Savage v Savage [2024] EWCA Civ 49 (‘Savage’), the Court of Appeal reached a much required decision on the statutory interpretation of Section 15 of the Trusts of Land and Appointment of Trustees Act 1996 (‘TOLATA 1996’) and held that, when considering an application under Section 14 TOLATA 1996 and a dispute between beneficiaries […]