(4) Common law

A cut removing personal rights to a European civil code would cause horrendous damage to the structure of the common law, which is simply incompatible with a real/personal divide,135 even without the Hohfeld extremism.136 Real actions suffered procedural obsolescence at an early date137 meaning that the enforcement of a real right did not require an action in rem.138

Vindication is not available especially in relation to chattels139 and ownership is always protected in personam,140 and at the level of enforcement all proprietary rights are personal.141 The common law evolved around a category of property rights, rights enforceable or potentially enforceable against a purchaser, a category that does not precisely match civilian real rights.

This is especially so because English land law relies on the interplay between legal rights that are virtually real and equitable rights that are (often) overreachable, and in any case are neither fully real nor fully personal. Civilians tend to emphasise the personal characteristic of equitable rights because civilian trusts operate in personam. This is in defiance of the common law categorisation of equitable rights which follow legal rights, are fully proprietary and approach full reality. An English property law with no real rights has proved a challenge to the Brussels I jurisdiction regime,142 which assigns exclusive jurisdiction to the courts of the state in which the land is situated ‘in proceedings which have as their object rights in rem

135J Austin Lectures on Jurisprudence (London, John Murray, 5th edn, R Campbell, 1912) vol 2 lectures XLV-XLVIII, XLIX-LVII.

136WN Hohfeld Fundamental Legal Conceptions (New Haven, Yale University Press, 1964); TE Merrill & HE Smith ‘Property/Contract Interface’ (2001) 101 Columbia Law Review 777,

782.

137WW Buckland & A McNair Roman Law and Common Law (Cambridge, CUP, 2nd edn by FH Lawson, 1952) 66-67.

138FW Maitland Forms of Action at Common Law (Cambridge, CUP, 1936) 73-78.

139PBH Birks Classification of Obligations (Oxford, Clarendon, 1997) 10-11.

140B Nicholas Introduction to Roman law (Oxford, Clarendon, 1962) 99.

141JH Dalhuisen ‘Moving From a Closed to an Open System of Proprietary Rights’ (2001) 5

Edinburgh Law Review 273, 281+ **.

142Sparkes ELL (n 40) [4.22ff].

in immovable property or tenancies or immovable property’; there is an exception for very short tenancies. In personam actions can be taken away form the site of the land. This was indeed what happened in Webb v Webb when an English resulting trust of a holiday flat situated in Antibes on the Cote d’Azur143 the effect being to negate the apparent gift contrary to the French law of the site, an absurd result. There is a fine line between allowing a foreign asset to form part of a trust fund and allowing trust law to override national property systems, a line crossed in Webb. Reliance on ‘in rem’ rights as a way of differentiating genuine rights in land (eg long leasehold) from trivial rights (eg overnight hotel booking) does not work in English law. It would only work if the property/personal obligation divide was drawn at the same place as in civilian systems, which it is manifestly not.

(5) Trusts

The draft common frame of reference includes a special book (book X in no less than 116 articles) dealing with trusts. This recognises the fiduciary obligation on a trustee144 but follows civilian systems in seeing a trust as essentially contractual in nature;145 Book X presents no threat to English pre-eminence in commercial fund management, since the crux is proprietary character of the beneficial interest.

(6) Personal rights

Property rights often include overlapping contractual and proprietary rights, for example the mortgage consists of a loan agreement and an agreement to use land as security for

143Webb v Webb [1994] I ECR 1717 ECJ.

144This envisages assets vested in a trustee just when this requirement has been dropped by English law: Trustee Act 2000 s 16.

145DCFR (n 2) Book X; Jansen & Zimmermann (n 3) 98+**; J Ball ‘In Contracts We Trust’ (2009) 108 TEL&TJ 18; Akkermans ‘Concurrence’ (n 65) 281.