The Collateral Directive and Financial Collateral: Ownership of, or entitlement to, collateral?

2021 ◽  
Vol 10 (2-3) ◽  
pp. 304-342
Author(s):  
Obiora Ezike
Keyword(s):  
Property Rights ◽  
Middle Ground ◽  
Personal Rights

Abstract It is controversial if incorporeal moveables (or choses in action) can be the object of property rights. The Collateral Directive arguably attempts to take the middle-ground in this debate. It acknowledges that a person may have either ‘full ownership of’, or 'full entitlement' to, financial collateral, which are conceptualised as intangibles. The approach adopted by the Directive throws up some questions: Is there a difference between owning or being entitled to collateral? If there is a difference, does this matter? The article first highlights the underlying controversy between these two concepts: which arises because of the different conceptions of real rights, or right in rem, and the need to protect the boundary between real and personal rights. The article then argues that although ‘owning’ and ‘entitlement’ are different concepts, there are also functional similarities between both concepts which arguably the Directive extends further than necessary.

A Legal Ethnography

2011 ◽  
Author(s):  
Colin Dayan
Keyword(s):  
Civil War ◽  
Property Rights ◽  
Personal Identity ◽  
The South ◽  
Legal Fiction ◽  
Personal Rights ◽  
Peculiar Form ◽  
The Law

This chapter examines how judges determined the character of slaves. In the South, the adaptation of Lockean notions of personal identity to slaves was inextricably bound up with the understanding of person as a forensic term and the kind of legal incapacity and nonrecognition that signaled negative personhood. Thomas Morris in Southern Slavery and the Law: 1619–1860 argues that the most crucial legal fiction was that “the slave was an object of property rights, he or she was a ‘thing’.” However, what most occupied the thoughts of lawyers and judges in cases about personal rights in the courts of Virginia on the eve of the civil war was not to affirm the slave as property, but to articulate the personhood of slaves in such a way that it was disfigured, not erased. Slave law depended on this juridical diminution. The peculiar form impairment took and the transformations that ensued gave new meaning to degradation.

8. The Political Economy of Democracy

2018 ◽  
pp. 119-133
Author(s):  
Patrick Bernhagen
Keyword(s):  
Political Economy ◽  
Property Rights ◽  
Economic Reforms ◽  
Transition To Democracy ◽  
The Political ◽  
Historical Overview ◽  
Personal Rights ◽  
Key Points ◽  
The Relationship

This chapter examines the relationship between democratization and the economy. It first provides an historical overview of the emergence of capitalist democracy before discussing some general problems of the relationship between democracy and capitalism, highlighting the main areas in which the two systems condition each other. It then considers the role of business in democratizing countries, and more specifically the role of business actors in the transition to democracy. It also explores the intricacies of combining major political and economic reforms. Some key points are emphasized; for example, capitalism focuses on property rights while democracy focuses on personal rights. Furthermore, capitalism produces inequality, which can both stimulate and hamper democratization.

1 The Structure of Interests in Property in Commercial Transactions

2018 ◽  
Author(s):  
Raczynska Magda
Keyword(s):  
Property Rights ◽  
Legal Structure ◽  
Legal Relationship ◽  
Personal Rights ◽  
Legal Concepts ◽  
Contractual Rights

This chapter discusses the legal structure of property interests in commercial transactions, first by explaining the relevant legal concepts such as the distinction between property rights and personal rights. It proceeds by considering contractual rights and how property as assets differ from property as interests in assets. It then examines the key forms and purposes of key proprietary interests, noting that parties that enter into commercial transactions create proprietary interests and personal obligations, namely: contracts of sale with retention-of-title clause, title-based interests (hire-purchase agreements and leases) and security interests (pledges, charges and mortgages). The chapter also analyses the nature of parties' legal relationship inherent when proprietary interests are created, focusing on the relevance of the agreement and whether the legal relationship between the parties to the transactions may be fiduciary. Finally, it describes the power to act and the authority to act with respect to such relationships.

scholarly journals PROPRIETARY ESTOPPEL AND PROPERTY RIGHTS

2005 ◽  
Vol 64 (2) ◽  
pp. 449-480 ◽  
Author(s):  
Susan Bright ◽  
Ben McFarlane
Keyword(s):  
Property Rights ◽  
Property Right ◽  
Court Order ◽  
Personal Rights ◽  
Central Argument

THIS article focuses on a particular aspect of the operation of proprietary estoppel: it asks when a proprietary estoppel claim will give rise to a property right. The inquiry proceeds on the linked assumptions that proprietary estoppel is a means of acquiring rights and that rights thereby arising take effect immediately, without the need for any court order. Like any other means of acquiring rights, proprietary estoppel can give rise either to personal rights or to property rights: in some cases the estoppel claimant is acknowledged to have a personal right (e.g. to damages or a licence to use land); in others a property right (e.g. a lien; an easement; a lease; or a freehold). The central argument of this article is that proprietary estoppel should give rise to a property right only if that is necessary to protect the claimant’s reasonable reliance. Where a personal right gives sufficient protection that will have to do, whatever the claimant may have been promised or expected; this may well mean that the circumstances in which a property right arises are more narrow than has been thought.

6. Equitable interests

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Third Parties ◽  
Property Right ◽  
Personal Rights ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the content of equitable interests in land, and considers how such rights differ from each of personal rights and legal estates and interests. Equitable interests in land are capable of being asserted against third parties. They have a power lacking in personal rights. The content and acquisition questions are answered differently depending on whether B claims a legal or equitable property right. It is noted that equitable interest in land depends on A's coming under a duty to B. Moreover, as observed, equitable property rights are conceptually different from legal property rights.

1. An introduction to equity

2018 ◽  
Author(s):  
Graham Virgo
Keyword(s):  
Property Rights ◽  
Middle Ages ◽  
Common Law ◽  
Independent System ◽  
Fundamental Feature ◽  
Legal Definition ◽  
Personal Rights ◽  
The Common ◽  
Definition Of ◽  
And Function

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.

3. Personal Rights and Property Rights

Land Law ◽  
2017 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Property Right ◽  
The Other ◽  
Important Distinction ◽  
Personal Rights ◽  
Different Types ◽  
The Law ◽  
The One ◽  
The Relationship

This chapter examines property rights in land and personal rights that may allow a party to make a particular use of land. It first considers the distinction between personal rights and property rights before addressing the content question: whether the type of right claimed by a party counts as a property right. To answer that question, a distinction is made between different types of property right. The most important distinction is between legal property rights, on the one hand, and equitable property rights, on the other. The chapter also discusses licences to use land and contrasts their operation and effect with those of property rights in land. It highlights the nature of licences and the controversy over contractual and estoppel licences and concludes with an analysis of the relationship between the law of leases and of licence.

1. What is Land Law?

Land Law ◽  
2017 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Land Law ◽  
Building Society ◽  
Land Registration ◽  
Personal Rights ◽  
Content Acquisition ◽  
Private Rights ◽  
The Law ◽  
City Of London

This chapter introduces the reader to land law and explains why land law is studied at all. It also tackles three fundamental questions that are used to understand and structure the often complex rules encountered in land law: the content, acquisition, and defences questions. Three specific case law examples are discussed: National Provincial Bank v Ainsworth (1965), Williams & Glyn's Bank v Boland (1981), and City of London Building Society v Flegg (1988). Other topics covered in this chapter include: the importance of the statutory framework established by the Law of Property Act 1925 and the Land Registration Act 2002; the focus of land law on private rights to use land; the key distinction between personal rights and property rights; the importance of equitable rules and of statute in shaping land law; and the key role played by land registration in modern land law.

3. Personal Rights and Property Rights

Land Law ◽  
2020 ◽  
pp. 61-92
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Property Right ◽  
The Other ◽  
Important Distinction ◽  
Personal Rights ◽  
Different Types ◽  
The Law ◽  
The One ◽  
The Relationship

This chapter examines property rights in land and personal rights that may allow a party to make a particular use of land. It first considers the distinction between personal rights and property rights before addressing the content question: whether the type of right claimed by a party counts as a property right. To answer that question, a distinction is made between different types of property right. The most important distinction is between legal property rights, on the one hand, and equitable property rights, on the other. The chapter also discusses licences to use land and contrasts their operation and effect with those of property rights in land. It highlights the nature of licences and the controversy over contractual and estoppel licences and concludes with an analysis of the relationship between the law of leases and of licence.

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