Party Autonomy in International Property Law - Peace Palace Library

4. Party Autonomy and Property Rights
4.4. Party autonomy
Given then that English law, like all systems, has a numerus clausus in
relation to all rights which are exigible against all others, including both
rights in rem in the Roman sense and intellectual property rights, and also
that English law, like all systems, has several restrictions on the transfer of
rights by agreement alone, it would at first sight appear to be the case that
party autonomy is severely restricted. This would be, of course, commercially
inconvenient. That this is not so is because English law, like other
legal systems, has transcended the Roman law dichotomy between rights
in rem and rights in personam. This is also true of legal systems outside of
the common law world but the pattern is neither uniform nor (unfortunately)
widely understood.
The essential concept to grasp is that of rights to rights.
If A, the owner of Blackacre declares himself a trustee of the right to his
land in B’s favour, English law does ‘not say that [B is] the owner of the
land, it says that the trustee was the owner of the land, but adds that he is
bound to hold the land for the benefit of [B]’. 16 We may illustrate this by
the fact that B has no standing to sue for violation of the right to the land
itself: only A may sue a trespasser or the creator of a private nuisance. B
has no right to the land, and does not have a right exigible against the rest
of the world but only one as against the person with title to Blackacre from
time to time. B does not, therefore, acquire in the narrow sense employed
by the Romans, a right in rem.
B’s right that A holds the title to the land for his benefit (which is simply
the converse of A’s duty to hold the title to the land for B’s benefit) is
not simply a right against A personally, a right in personam in the sense
employed by Roman lawyers. Rather the subject matter of B’s right is A’s
right to the land. 17 If, therefore, A gives the (right to) Blackacre to his
16
F.W. Maitland, Equity – a course of lectures (A.H. Chaytor and W.J. Whittaker,
eds., revised by J. Bunyate), Cambridge, 1936, 17-18.
17
See also R. Chambers, An Introduction to Property Law in Australia (2 nd ed.,
Lawbook Co, 2008) at [13.90]; L Smith, ‘Unravelling Proprietary Restitution’,
Canadian Business Law Journal, (2004), 317; L Smith, ‘Philosophical Foundations
of Proprietary Remedies’ in: R. Chambers et al. (eds.), Philosophical
Foundations of The Law of Unjust Enrichment (Hart, 2009); L Smith ‘Trust
and Patrimony’, Revue générale de droit 38 (2008), 379-403; L. Smith, Estates,
Robert Stevens
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