ARCHITECTURE

3.1 Contracts
3.1.1
Private property is, substantially, a modern invention.
It was not until the sixteenth century that
Manuel Shvartzberg Carrió
inventing
private landed property began to operate as an individual’s
property:
Real estate is embedded within legal arrangements.
autonomy
exclusive right, whether to be used or to be sold.
It is both determined by and productive of them. In
and selfrealization
At least three main reasons account for this change:
what follows, the reader will find a brief history of
real estate’s relation to the law. This history is necessarily
episodic, because the law itself is composed of
multiple dimensions—pieces of an ever-shifting puzzle
that range from politics and philosophy to media
and finance. It is also episodic because legal frameworks
diverge according to different units of sovereignty;
here, we focus only on the Anglo-American
tradition of Common Law (as opposed to Civil Law),
and only on certain legal actors.
Real estate historically mediates agreements
and disputes over land—a form of power struggle
that has become codified through the law. The central
object of contention is not just land per se, but
the very ontology of land—its status as something
that can be variously possessed by an individual,
traded, speculated upon, or held together by different
political arrangements. Real estate thus has to
be framed alongside legal-philosophical discourses
of the individual’s right to private property, and,
more fundamentally, the modern conception of individuality
as a naturalized condition. Property, personhood,
and market economics together form the
historical-conceptual milieu out of which the field of
real estate emerges.
This field engages diverse agents and actors;
the law provides them with force and stability
through specific legal instruments such as writs,
deeds, statutes, professional accreditations, and, as
discussed here, contracts. Contracts are agreements
between individuals and other entities, and are
thereby the vehicles by which the law’s proper subjects
(including entrepreneurs, tenants, corporations,
or debtors) are recognized and produced. In
turn, legal instruments and actors mediate the expansion
of the market economy across space and
time, requiring the invention of new legal, political,
and financial forms, such as the management of the
future via speculative arrangements of credit, debt,
duty, and desire.
1) the rise of the modern administrative state in lieu
of the monarchical one, 2) the development of a philosophical
doctrine of individual natural rights, 3) the
legal shift from a notion of property tied to customary
obligations to a merely transactional one in the
context of a growing market economy.
Prior to the modern state, landed property was
bound up with the political and social institutions
of monarchical sovereignty. In this arrangement,
the lords who guarded the land administered all its
relationships, including the lives and livelihoods of
those who lived on it. The landlord-tenant relation
was one of extreme inequality, but also of paternalistic
guardianship—land was not a commodity but
the source of subsistence for a stratified community.
Property was thus tied to customary practices
that discharged various social functions—duties and
obligations of moral, economic, and legal nature.
Rather than being individually owned and disposed
of, properties often bore a multiplicity of rights by a
variety of non-exclusive users.
Centuries of struggle, however, traced a shift
in the locus of power: from the singular figure of
the monarch, sovereignty was gradually dispersed
among the many bodies of proto-modern societies,
such as courts and state legislatures. Originally instruments
of a powerful, land-holding elite, these
institutions were reformed in large part to guarantee
the individual property rights of an emerging
bourgeoisie. 2 To this day, property signifies rights in
or to things, not the things themselves. The task of
the state is to enforce these rights as stipulated by
law. 3 Private property, as opposed to public property
(managed by the state) and common property
(for non-exclusive uses), means the right to lawfully
exclude others from an individual’s use of or benefit
from something. As such, it reifies modern notions
of individual autonomy and self-realization defined
against others. This legal-philosophical framework,
originating in the sixteenth century and enshrined in
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