Perspective On Real Righyt Law In Common Law From An Angle Of Civil Law

Although the German concept of Sachenrechte and Forderungsrechte does not exist in common law countries, it has the counterpart in their laws. Similarly, there is no statute law titled Law of Real Right in common law countries, but the legal system similar to the law of real right in civil law countries do exists thereof.Upon these facts, it is feasible to make a review on real right law in common law from an angle of civil law.This paper starts from reviewing the relation between the term"Sache"in German and"property"in English. Looking from the classification of property in common law, this paper points out that the two terms are not synonymous."Sache"refers to tangible things. In a contrast, property comprises all kinds of valuable things, tangible or intangible alike, and the intangible includes the debt. On some occasions, the concept of"property"is used as opposed to"contract". At that time, what the term"property"emphasizes is the in rem nature of property, which is differ from the personam nature of contract. In any case, the scope of"property"is wider than"Sache"since"Sache"in civil law countries refers only to tangible property.The concept of the property also exits in civil law where the property is first divided into tangible and intangible, and the tangible property is then divided into movables and immovables. But in common law, the property is firstly divided into real property and personal property. The former indicates the land and the interests in the land. Both the real property and the personal property can be further divided into the tangible and intangible. Accordingly, the movables exclusively belong to the personal property while the immovables belong to the real property. As a result, the generic term of Sache that covers both the movables and immovables does not appear in common law. Therefore, there is no statute titled Law of Real Right, but there are statutes and compilations titled Property Law.By reviewing Law of Property Act 1925 of UK and the laws and compilations titled Property Law in US, this paper points out that the main body of these legislative documents concerns real property, while the rules that concern the other kinds of property are contained in other statutes. There is no a unified statute covers all kinds of properties in the same great details. In other words, the statutes and compilations titled Property Law is a part of the real right law, and the real right law is only a branch of the property law.In common law countries, the real right law consists of three sources. The first is foresaid statute and compilations which constitute the main source of real property law. The second is the rules concerning movables which are contained in Sale of Goods Act, Commercial Code and Torts Act, etc., These rules constitute the main source of law of movables. The third is the case law concerning real property as well as movables, which constitutes an important source of real right law in common law countries.Although the term Sachenrechte does not appear in common law countries, all kinds of real rights are covered by the statutes and case law in the detail. These rights include fee simple, fee tail, life estate, leasehold, easement, restrictive covenant, mortgage, etc. Considering the material content of each right mentioned above, we can find that every right in the civil law countries has a counterpart in the common law countries in spite of the difference in the name of each right.Furthermore, by reviewing the transitions of a right from in personam to in rem, which only occurred for three times in the history of common law, the paper points out that the common law is most prudent on such transition. The division of Sachenrechte and Forderungsrechte in civil law is also persistently followed in common law. Surprisingly, Verfügungsgesch?fte also exits in the form of delivery of deed in common law. Although the institution of delivery of deed is not based on Verfügungsgesch?fte theory, it follows the basic principle that a contract itself cannot transfer the title of a property, and another act of delivery reflecting the parties'wish to transfer the title is necessary.Common law not only recognizes the dichotomy of Sachenrechte and Forderungsrechte, but also specifies by case law each type of real right and its content. Such a conclusion can be made from reviewing the evolution of fee tail and settlement.In addition, by investigating the registration system of real property, the paper concludes that in both of the civil law and the common law countries, the ownership of the real property evidenced by the registration can be reasonably relied, despite of the difference arrangements used by the two legal systems. The principle in the civil law that the ownership of movables showed by the possession can be reasonably relied also applies in the common law.In conclusion, although the differences in formulations of terms and the content of rights do exist between civil law and common law, the legal rules of the real right law in the two legal systems are similar to a high degree. This conclusion is backed by the fact that the real right law as a part of property law aims at efficient allocation of tangible properties and promotion of their optimal utilization. This aim is shared by both legal systems.