Conceptualising Property Law
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Conceptualising Property Law

Integrating Common Law and Civil Law Traditions

Yaëll Emerich

Conceptualising Property Law offers a transsystemic and integrated approach to common law and civil law property. Property law has traditionally been excluded from comparative law analysis, common law and civil law property being deemed irreconcilable. With this book, Ya'll Emerich aims to dispel the myth that comparison between these two systems of property is impossible. By establishing a dialogue between common law and civil law property, it becomes clear that the two legal traditions share common ground in the way that they address legal, cultural, and social issues related to property and wealth.
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Chapter 4: In search of private property: between the civil law and the common law

Yaëll Emerich


The common law tradition does not have a concept of “ownership” or private property strictly equivalent to that of the civilian tradition. It is often claimed that one of the major differences between the two traditions is that the common law does not have a true concept of ownership, at least for real property. Historically, in England, land was granted by a lord in exchange for certain services. The person who was at the bottom of the feudal pyramid and who physically possessed the land was considered to have seisin of the land. Even today, it is often considered that there is no such thing as ownership in the common law as far as real property is concerned because ultimately, the Crown owns the land. The fact that the common law does not recognise such a concept is often viewed as one of the defining features of this legal tradition. The traditional conception is that one can have a variety of interests in land but is never the ultimate owner. Rather than a concept of ownership, private individuals in the common law tradition are considered to hold estates in land.

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