It appears likely to fit ill with German law given the stinging attacks of German lawyers,13 and with the French tradition14 and despite the relatively warm reception by some15 but not all16 British obligations lawyers to be incompatible with English property law; of course an opt out is very likely.17

2. Things immovable

(1) The human action test

An important ontological factor in a market is an agreement on commoditarisation, a shared perception of which things should be the subject of ownership and barter.18 A study by Professors Von Bar and Drobnig found a substantive agreement across Europe about the nature of property, though with differences of terminology and of detail.19 There was a divergence about incorporeals, which do not count as property in Germany and Greece reflecting the line drawn by Gaius and Justinian, whereas elsewhere property is allowed in intangibles, but there is a commonality of approach to land as an object of property across the

continent.20

13Eidenmuller (n 3); also the articles cited by E Hondius ‘England and the European Civil Code’ (2009) 17(2) ERPL 85, 85 fn 1.

14R Sefton-Green ‘DCFR, the Avant-projet Catala and French Legal Scholars: A Story of Cat and Mouse?’ (2008) 12(3) Edinburgh Law Review 351.

15J Cartwright ‘English Law of Contract: Time for Review?’ [2009] 17(3) ERPL 155; H Collins European Civil Code: The Way Forward (Cambridge, CUP, 2008).

16See fnn 3, 8 above.

17At least on behalf of England and Wales, though it remains to be seen whether the border is at Berwick or at Dover.

18J Basedow ‘Common Contract Law for the Common Market’ (1996) 33 Common Market Law Review 1169, 1180.

19C Von Bar & U Drobnig Interaction of Contract Law and Tort and Property Law in Europe – A Comparative Study (Munich, Sellier, 2004) [467ff].

20PBH Birks & G McLeod Gaius Institutes (London, Duckworth, 1987) 22.

The scope of European contract law turns on the Draft Common Frame of Reference exclusion of what is described as immovable property21 and is given this meaning:

‘land and anything so attached to land as not to be subject to change of place by usual human action.’22

This focuses on the physical thing, a plot of land, trees growing in the ground and a building; it means land in the narrow English sense and not land in the extended statutory sense which includes rights.23 Civilian lawyers distrust ‘land’ as the description of a category of property, because many states have special rules for land covered with water – is a river immovable? – not to mention the potential confusion with a word for a German region (Land), but above all because of the need to include rights in land. Hence the continental preference for the word ‘immovable’, usually used so as to refer to a particular ownership right rather than a particular parcel of land. Of course nothing on earth is truly immovable, and what matters is that a particular house is fixed in relation to its neighbours as the entire street hurtles together through space. An ‘immovable’ understood as a thing matches closely with land, though the fit is not close enough to obviate the need for conflicts rules to cope with cases where one system treats a thing as immovable which another system allows to move.24

Land must include the airspace using the cursed cujus est solum rule25 limited nowadays to the level of reasonable human exploitation;26 flying a balloon low over a French field should remain a French delict.

21DCFR (n 2) I.1:108(1).

22DCFR (n 2) Annex (‘immovable property’).

23See below heading 6.

24Dicey & Morris Conflict of Laws (London, Sweet & Maxwell, 14th edn, 2006) ch 22.

25Cujus est solum, ejus est usque ad coelum et ad inferos ( = whoever owns the soil, it is

theirs up to Heaven and down to Hell). The phrase is attributed to Accursius author of the Great Gloss at Bologna in 1230, and was introduced into the common law by William Blackstone’s Commentaries.

26 Bernstein v Skyviews and General [1978] QB 479 Griffiths J.

One wonders whether the test proposed is subtle enough to comprehend all thirty or so EU fixtures rules, let alone the fifty or so of the greater Europe. English law has three categories, chattels, fixtures and things forming part of the land.27 The latter includes for example a shack built up over the years not attached to the land of the Gower peninsular but resting on concrete blocks, but constructed in such a way that it would collapse if any attempt were made to move it.28 This is not attached to the land but it may fall within the Draft Common Frame of Reference definition as ‘land’ itself. In England the test of fixture has moved on from the degree of fixing to take much more account of the purpose of fixing; a thing fixed to become immovable might be part of the land included in a sale but be removable by a tenant at the end of a lease and an item attached to the same degree might be detachable if it was put up for enjoyment but part of the land if it was put up for some functional reason.29

Again the text proposed hardly begins to do justice to the subtleties of the French law of immovables.30 Immovables by nature are determined according to the degree of attachment to the ground, which might fit well with the European draft but raises the issue of how the Morris’ shack might have fared in France. However, there is also a category of immovables by destination, things placed on land for service or exploitation of the land. In Tiersonnier a farmer stocked his holding with 80 cattle, 60 being the appropriate quantity for the particular farm, so 60 were immovable and 20 movable;31 it is not quite clear how from looking at them in the field one could tell one kind of kine from the other kine.32 Other quaint examples of

27Elitestone v Morris [1997] 1 WLR 687, 691 Lord Lloyd.

28Elitestone (n 27) HL.

29Leigh v Taylor [1902] AC 157 HL

30French CC §§517ff; J Bell, S Boyron & S Whitaker Introduction to French Law (Oxford,

OUP, 2nd edn, 2008) 272-273.

31Tiersonnier Requêt October 19th 1938, DH 1938.613, cited by Bell, Boyron & Whitaker (n 30) 273.

32Animals are defined to be goods: DCFR (n 2) Annex (‘goods’).

the Napoleonic rural economy are rabbits, beehives, and beer making vats.33 So far as fruit and produce is concerned, it seems clear that the transformation from national land to European produce occurs at the moment of harvest, with scope neither for anticipation34 nor delay: an English tenant who loses the lease of his holding can re-enter to reap his harvest under the preserved right to emblements,35 but a European tenant will not. Nor is there any differentiation between rightful and wrongful picking, either of which could Europeanise the apples in an orchard, turning them from land to goods.36

European contract law requires a simple invariable rule, but such a rule will not fit with all national property systems. So in an area in which thirty or more property systems are more or less aligned the conclusion must be that the simple definition of immovable property requires small but essential changes to all civil codes in Europe; and in England it would require tinkering with the Law of Property Act 1925 definition of land.37 Otherwise a contract could relate to movable property so as to fall within the European Draft Common Frame of Reference code and at one and the same time relate to land so as to require formality.38 It will be very awkward to unpick all the national rules, even in an area such as fixtures where the broad shape of the various laws is already aligned.

No problem arises where the European draft and the local law treat the item the same way, but insistence of autonomous definitions39 gives rise to the unfortunate possibility that something might be treated as land by the Draft Common Frame of Reference so as to be

33French CC §524.

34As it happens French Law also takes the moment of harvest though there is provision for crops and trees to become movables when earmarked for felling; the point is that European property systems may vary on this point.

35C Harpum, S Bridge & M Dixon Megarry & Wade’s Modern Law of Real Property

(London, Sweet & Maxwell, 7th edn, 2008) [3-105].

36The rules on acquisition of property in goods do not apply when a thing is detached from land: DCFR (n 2) VIII.-1:201

37Law of Property Act 1925 s 205(1)(ix).

38In England under the Law of Property (Miscellaneous Provisions) Act 1989 s 2.

39DCFR (n 2) I.-1:102(1).