Though innocuously entitled “The Structure of Property Law”, this book is actually an attempt at a radical restructuring of property law. Though using an innocent bike to illustrate the subject-matter of personal property right throughout, the book in fact throws a monkey wrench into the proper understanding of the most venerable concepts in English commercial law.
Before considering the author's surprising ideas, it is perhaps helpful to have an overview of the book's coverage. It consists of three overlapping parts. Parts one and two overlap to some extent in introducing the author's concepts of property law and equity. Also included in part two is an application of the author's concepts to land law. Part three looks at land law again and some other property matters, such as ownership, co-ownership, trust and security interest.
The author's ideas of property law include the following. First, property rights are confined to the right to use tangible things. “A right can only qualify as a property right if it relates to the use of a thing: an object that can be physically located” (p. 132, footnote omitted, original emphasis). There is thus no such thing as intangible property. Accordingly intellectual property rights are outside the scope of property law.
Second, B is on the conventional analysis said to have an equitable property right where (i) A is under a duty to B and (ii) A's duty relates to a specific right held by A. One simple example is where A holds an account with Z Bank and declares that he holds that right on trust for B. The conventional analysis is incorrect; B should instead be seen to have a right against a right, or a persistent right. To prove the author's view that “there is no such thing as ‘Equitable property right’” (p. 70), the following examples are used. “A owns a bike and declares that he holds the bike on Trust for B. X then carelessly damages the bike. A owns a bike and declares that he holds the bike on Trust for B. X then steals the bike” (p. 29). If “B's right under the Trust counts as ‘Equitable property right’ … it is difficult to explain why … X does not commit a wrong against B” (p. 30).
Third, “ownership” is “the only property right that can exist in things other than land” (p. 526, original emphasis). “Ownership consists of B having: an immediate, unconditional right to exclusive control of a thing; forever” (p. 526).
Fourth, “possession” also counts as ownership, by reference to this example: “B has Ownership of a bike. C steals B's bike, by taking physical control of it without B's consent or other lawful authority. C2, acting without the consent of B or C or other lawful authority, takes the bike from C. When C2 takes the bike, he commits a wrong against both C and B. C2's action is a wrong against C because C, by taking physical control of the bike, independently acquires a property right … As a result, C2 like the rest of the world, is under a prima facie duty not to interfere with any use C may choose to make of the bike … B's right counts as Ownership as B has a right to exclusive control of the bike forever. As C's property right has exactly the same content, it must also count as Ownership” (pp. 144–145, original emphasis).
So far so good. An author is clearly entitled to define “property right” widely or narrowly as he wishes. But from the above general propositions the author boldly proceeds to show how they could have relevance to specific rights in real life. Some of the specific applications of the above conceptual apparatus only need to be stated for their deficiencies to be apparent.
A few examples would suffice to illustrate the deficiencies. In the context of a security interest, it is said that the holder (B) of a mortgage, pledge or consensual lien “acquires a property right. In the case of a fixed charge transaction, B acquires a persistent right: a Purely Equitable Charge … In the case of a floating charge transaction, B acquires a power to acquire a persistent right: that power is itself known as a floating charge” (p. 585). Apart from contrary to authorities and statutes, this is a highly simplistic understanding of security interests. On the author's understanding, if the security interest in question is an equitable mortgage over land, would the equitable mortgagee have a property right? What about the holder of a floating mortgage? What about a legal mortgagee of a bank account, as contemplated by the Financial Collateral Arrangements (No. 2) Regulations 2003?
Because the author framed the content of personal property right as ownership of tangibles which in turn means an immediate, unconditional right to exclusive control of a thing forever, the author was apparently forced to say that possession equals ownership. But even in its own terms, the author's thesis appears self-contradictory, as demonstrated in this passage: “A has Ownership of a bike. A agrees to give B a right to exclusive control of the bike for the next six months. B takes physical control of the bike … B cannot claim that A has transferred his Ownership to B: A clearly has not given B a right to exclusive control of the bike forever. However, when B takes physical control of the bike, B independently acquires a property right. That right is sometimes known as Possession but is better seen as an example of the core property right: Ownership” (p. 148, original emphasis). But why should B be seen to have an “unconditional right to exclusive control of a thing forever”? Perhaps the author would say that B has that right vis-à-vis the world, apart from A; thus B can sue those who take the bike from him without consent for conversion. But does this example really show that the concept of possession should be replaced with ownership? On the author's definition of property right, all bailees are to be equated to owners. This seems to be wearing blinkers purposely and refusing to acknowledge the concept of beneficial ownership.
Indeed the author's apparent unwillingness to recognise the concept of beneficial ownership leads to a forced conclusion that a mortgagor's equity of redemption is a right against the mortgagee's right: the mortgagor's right to regain Ownership (p. 587). The content of a mortgagor's equity of redemption is much more than just about the mortgagee's security interest. The former is the sum total of the mortgagor's rights in the mortgaged asset – in equity he is the owner of the asset subject to the mortgage, while the mortgagee is a mere incumbrancer (Ultraframe (UK) v. Fielding [2005] EWHC 1638 (Ch) at [1403]). To say that a mortgagor's right as an owner is a right against the mortgagee's right as a mere incumbrancer is almost like saying that a child gives birth to his parents.
This reviewer is all for rationalising the law and challenging existing precepts if it leads to a better understanding of the law, but cannot in all honesty feel enthusiastic about the restructuring of property law proposed in this book. As an academic exposition, it is regressive in that it adds more confusion than clarification. From a practical perspective, one struggles to see its impact.
