Volume 42 | Number 3 Summer 2007
The Disappearing Divide Between Property and Obligation: The Impact of Aligning Legal Analysis and Commercial Expectation
III. Is Disappearance of the Divide Between Property and Obligation Significant?
The significance of the conclusion that there is no longer any sharp divide between property and obligation depends upon your perspective. If given any credence, it will end the search for the Holy Grail, and that in itself might liberate a significant amount of academic effort.
Why do we have property? It is said to be necessary for all advanced and advancing societies to ensure greater productivity and commitment to effort. Parties who own assets know that they will derive the fruits of their labour, and they are then prepared to expend greater efforts. It is immediately obvious, however, that property is surplus to this equation, aside from making the point that common or community ownership does not work. Ensuring that not all wealth or property is held in common provides an incentive. This is as true of personal rights as it is of property rights.
On other fronts, too, the news of a merger is not dramatic. But this is not because the news itself lacks dramatic impact. Rather it is that we arrived at this position quite some time ago and have had time to adjust to the consequences. Centuries ago, commercial parties saw that all rights, whether contract or property, could perform as usable wealth. They then adapted their practices accordingly. Economists were next to appreciate that these rights have merged. The lawyers have lagged behind.89 Perhaps it is time to catch up.
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Footnotes
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