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Understanding Property Law

Updated on September 7, 2009

Much less conspicuous to the average citizen is the law of property. Most legal systems have felt the need to deal separately with land and chattels. Land is different from chattels because it is impossible to destroy, take, or conceal. For centuries, it was the only practicable means of accumulating wealth. The difference between immovables and movables in law is therefore merely a recognition of physical facts. They came to be called respectively real and personal property because of peculiarities in medieval English court procedure.

The History of Property Law

The older land law has been largely swept away, and in America generally, in England only partially, systems of land registration have been established. During the 20th century, both in England and America, the state has ventured to control the use made of land and to expropriate private land that is needed for some public purpose. In England "town and country planning" has produced a large and difficult mass of law, much of it administered not by the usual courts, but by ministers and administrative tribunals. Urban land is likewise controlled as to construction and development, and many buildings are subject to rent control.

Under modern conditions, personal property constitutes the most important element in accumulated wealth. It depends on the regular working of the delicate machinery of credit and is for the most part intangible, although represented by papers of various sorts. In the short span of 150 years, the law developed the modern methods of coping with stocks and shares, bonds, banks, companies, negotiable instruments, and the other manifestations of the machinery of credit. Still another kind of intangible property is found in patents of inventions, and in trademarks, copyright, or transfer of goodwill.

In the Middle Ages, the merchants formed a separate estate, governed by their own international customs and administered by special courts in fairs and ports. The merchants elaborated an already ancient law of shipping, developed marine insurance and the bill of exchange, carried on their business through societies and companies, and considered themselves bound by the firma, or signature, of their associates, who thus came to be called a firm. National laws tended to be hostile to these developments. Hence countries that codified their national law often set up a separate code for their commercial law. In England events turned out otherwise. The common-law courts had succeeded in driving the old mercantile courts out of business. To fill the void, they allowed merchants to base their cases in the common-law courts on the "custom of merchants" or law merchant. In the latter part of the 18th century the courts took judicial notice of mercantile custom, thus making it part of the common law.


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