Party Autonomy in International Property Law - Peace Palace Library

4. Party Autonomy and Property Rights
One feature of the common law which it does not share with all others is
that it does not have an indivisible unitary concept of ownership, so it is
perfectly possible to have more than one person with rights good against
the rest of the world in relation to a thing. Even a thief acquires a title to
goods which is better than the title of all others to the goods, save the person
from whom he took them. So, if Y steals a watch from X, and is then
in turn robbed by Z, Y may sue Z for the wrong of conversion, 4 and obtain
delivery up of the goods. The fact that there is another party (X) with a
relatively better title than Y has cannot be relied upon by Z. Y’s title to the
goods is original and arises by possession, as at root do all rights to physical
things. X’s right to the goods has not been transferred; it is still vested in
him. That X and Y both have rights in relation to the goods which they
can exert as against Z does not offend the numerus clausus principle, as the
right they are both asserting is simply one of ownership, and not a bespoke
right falling outside of the categories recognised by the law. The position
in English law may be contrasted with, for example, the employment
by the Draft Common Frame of Reference (Book VIII, Article 1:206 et
secuens) of an ‘owner-possessor’ who is distinct from the straight-forward
owner of goods. This distinction is unknown to the common law.
Similarly, some legal systems are not as ready as English law is to allow the
intentional division of rights in rem in land so as to confer property rights
in multiple persons in relation to the same thing. Our numerus is not as
clausus as in some other legal systems, but the list is still very short indeed.
So, although in England there is no doubt that both a landlord and his
tenant have a right in rem, so that either could claim against a third party
who interfered with their interest in the land, a lease of goods by contrast
does not, by itself, transfer any right in relation to the goods themselves,
although the lessee will usually have standing to claim if the goods are
damaged as a result of his rights arising from his possession of them. In
this regard the lessee of goods does not differ from the thief. Another
right in rem in relation to land is an easement, whereby someone with a
freehold or leasehold interest in land has a right to limited use of nearby
land which he does not own. Again, interference by a third party with this
right to use is an actionable nuisance, and an easement is consequently a
right in rem in the full-blown Roman sense. There is no equivalent right
in relation to goods.
4
Armory v Delamirie (1722) 1 Strange 505.
Robert Stevens
85
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