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Structure and Style in Comparative Property Law

in Comparative Law and Economics, edited by Giovanni Battista Ramello & Theodore Eisenberg (2014), published by Edward Elgar.

Harvard Public Law Working Paper No. 14-03

38 Pages Posted: 1 Jan 2014 Last revised: 12 Mar 2014

Yun-chien Chang

Academia Sinica - Institutum Iurisprudentiae (IIAS)

Henry E. Smith

Harvard Law School

Date Written: December 31, 2013

Abstract

In this book chapter, we argue that the distinction between "structure" and "style" is important in understanding the similarities and dissimilarities in common and civil law property. Structure is the functional form the law employs to protect people’s use interests, whereas style is a manner of delineating entitlements that is characteristic of a particular legal culture. The same structure of property can be implemented in a number of styles. For transaction costs reasons, property systems under the two traditions (common and civil laws) are similar and have to be similar. Their styles today, as is well known, are quite different, due to their different histories and path dependence.

To underpin our point that it is critical to look beyond property styles to understand the economic nature of property, we closely examine mortgage (called hypothec in civil law countries). The styles of mortgage/hypothec cannot be more different. Several countries consider mortgage a property right; several others delineate it as a contract; while some others view it as neither property nor contract. We demonstrate that mortgage/hypothec, like other, uncontroversial property interests, contains the three essential elements of property. Thus, in terms of structure, mortgage/hypothec is a property right in all jurisdictions, despite the wide variety of styles in the civil and common law systems.

Keywords: mortgage, in rem, running with assets, right to exclude, accessory relationship, civil law, common law, path dependence

JEL Classification: K11

Suggested Citation

Chang, Yun-chien and Smith, Henry E., Structure and Style in Comparative Property Law (December 31, 2013). in Comparative Law and Economics, edited by Giovanni Battista Ramello & Theodore Eisenberg (2014), published by Edward Elgar.; Harvard Public Law Working Paper No. 14-03. Available at SSRN: https://ssrn.com/abstract=2373377

Yun-chien Chang (Contact Author)

Academia Sinica - Institutum Iurisprudentiae (IIAS) ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei City, 11529
Taiwan

Henry E. Smith

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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