Security

transfer of goods can generally determine by agreement the point in time when ownership passes,22 and in the rule that the consequences of the production of new goods out of another’s goods or of the combination or commingling of goods belonging to different persons can be regulated by party agreement.23 The rules on proprietary security in Book IX can be seen as enhancing freedom (and efficiency) by opening up wide possibilities for the provision of non-possessory security, something which has not traditionally been possible in many legal systems. Similarly, the rules on trusts in Book X could enhance freedom by opening up possibilities for setting property aside for particular purposes (commercial, familial or charitable) in a flexible way which has been much used and much valued in some systems for a very long time and is gradually spreading to others.

Security

16. General remarks. The importance of the principle of security in private law can be understood by considering some of the ways in which the security of natural and legal persons in the normal conducting of their lives and affairs can be threatened. The most obvious way is by unlawful invasions of their rights and interests or indeed by any unwanted disturbance of the status quo. Security, particularly in forward planning, is also threatened by uncertainty of outcomes. This can be caused by inaccessible or confusing or badly drafted laws. It can also be caused by the unpredictability of others. Will they perform their obligations? Will they do so properly? Will they give good value or attempt to cut corners and get away with the minimum possible? Will they be uncooperative and difficult to work with? Will they be able to pay? Are there effective remedies if things go wrong?

22VIII. – 2:103.

23VIII. – 5:101(1).

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