Modern Studies in Property Law最新文献

Death, Lies, and Land Registration 死亡、谎言和土地登记

Modern Studies in Property Law Pub Date : 2019-05-30 DOI: 10.5040/9781509921409.ch-016

S. Hudson, B. Sloan

引用次数: 1

Security of Tenure in the Private Rented Sector in England: Balancing the Competing Property Rights of Landlords and Tenants 英国私人租赁部门的使用权保障:平衡房东和租户的竞争性产权

Modern Studies in Property Law Pub Date : 2019-05-30 DOI: 10.5040/9781509921409.ch-012

E. Walsh

引用次数: 1

Re-evaluating Recreational Easements – New Norms for the Twenty-First Century? 重新评估康乐地役权- 21世纪的新规范?

Modern Studies in Property Law Pub Date : 2019-05-30 DOI: 10.5040/9781509921409.ch-010

Susan Pascoe

引用次数: 1

Restating the Architecture of Property 重新定义财产结构

Modern Studies in Property Law Pub Date : 2019-02-13 DOI: 10.5040/9781509921409.ch-002

Henry E. Smith

引用次数: 2

How is the Fit? The Regulation of Mortgages as Enduring Property Relationships 合身吗?抵押作为持久财产关系的规制

Modern Studies in Property Law Pub Date : 1900-01-01 DOI: 10.5040/9781509921409.ch-014

S. Nield

引用次数: 0

Defending Property: Self-help Remedies, the Use of Force, and the Concept of a Property Right 捍卫财产:自助救济、武力使用和产权概念

Modern Studies in Property Law Pub Date : 1900-01-01 DOI: 10.5040/9781509921409.ch-004

R. Hickey

引用次数: 0

Trusts and Legal Transplants: Lessons from Japan 信托和法律移植:日本的经验教训

Modern Studies in Property Law Pub Date : 1900-01-01 DOI: 10.5040/9781509921409.ch-019

James C. Fisher

引用次数: 0

The Paradox of the Equitable Proprietary Claim 衡平法所有权主张的悖论

Modern Studies in Property Law Pub Date : 1900-01-01 DOI: 10.5040/9781509921409.ch-017

Scott Agnew, B. Mcfarlane

{"title":"The Paradox of the Equitable Proprietary Claim","authors":"Scott Agnew, B. Mcfarlane","doi":"10.5040/9781509921409.ch-017","DOIUrl":"https://doi.org/10.5040/9781509921409.ch-017","url":null,"abstract":"Equitable property rights can be seen as paradoxical: how can a system based on conscience have developed rights that operate in rem? In Akers v Samba Financial Group, for example, Lord Sumption states that that ‘an equitable interest possesses the essential hallmark of any right in rem’, yet goes on to say that when an asset subject to an equitable interest is transferred to a third party, ‘the question becomes whether the conscience of the transferee is affected’. Our aim here is to resolve this paradox, at least in relation to rights under a trust. Where T holds on trust for B, we argue that conscience is crucial when considering how and when B may make an equitable proprietary claim against C, a successor in title to the original trustee. Such a claim can only be made in relation to property which is held by C at a point in time when C’s conscience is affected by knowledge of the initial trust relationship between T and B, in such a way as to subject C to a duty to B. In other words, the proprietary effect of the trust is based squarely on an initial relationship between B and T, and a later, similar relationship between B and C, rather than any abstract, depersonalised interest of B. The resolution of the paradox depends on accepting that, when B’s beneficial interest is described as proprietary, ‘proprietary’ must be understood in a special, limited sense. The key to Lord Sumption’s observation in Akers is the particular, and idiosyncratic, sense in which his Lordship used the term ‘in rem’, defining the essential hallmark of such a right as being that it is ‘good against third parties into whose hands the property or its traceable proceeds may have come, subject to the rules of equity for the protection of bona fide purchasers for value without notice’. We agree that the ability to affect C is what justifies regarding a beneficial interest under a trust as more than a mere personal right. It is possible to recognise that a beneficial interest has such an effect whilst also distinguishing it from rights, such as a legal","PeriodicalId":114415,"journal":{"name":"Modern Studies in Property Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131278885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

‘Judges are Human, Not Many People Know That’: The Travails of the First Instance Judge “法官也是人，很少有人知道”——初审法官的艰辛

Modern Studies in Property Law Pub Date : 1900-01-01 DOI: 10.5040/9781509921409.ch-003

Her Honour Judge Karen Walden-Smith

引用次数: 0

The Proprietary Nature of Title-based Financing Interests 基于所有权的融资权益的所有权性质

Modern Studies in Property Law Pub Date : 1900-01-01 DOI: 10.5040/9781509921409.CH-008

Magda E Raczynska

{"title":"The Proprietary Nature of Title-based Financing Interests","authors":"Magda E Raczynska","doi":"10.5040/9781509921409.CH-008","DOIUrl":"https://doi.org/10.5040/9781509921409.CH-008","url":null,"abstract":"The recent work on secured transactions, conducted separately by two expert groups, the Secured Transactions Law Reform Project and the City of London Law Society, makes it clear there is a case for reform in this area. While a consensus exists in relation to a number of aspects of the future regime, one unresolved debate concerns the legal relationships arising through retention-of-title clauses in contracts of sale, hire-purchase and lease agreements and their variants such as lease-back or buy-back agreements. Their common feature is that an owner of an asset (A) delivers possession of the asset to another – the buyer, lessee or the hirer (B) whilst retaining ownership of the asset. Such relationships are often used functionally as security interests because they enable B to raise finance (typically, to acquire goods on credit) from A while protecting A from the credit risk through the retention of ownership. The interests created in A through contracts of sale with retention-of-title clauses, hirepurchase and finance lease agreements will be referred to in this chapter as ‘title-based financing interests’. The functional similarity between such interests and security interests has led to a debate as to whether title-based financing interests ought to be governed by rules similar to those that apply to security interests. English law has traditionally resisted functionalism in favour of a more conceptual approach. One of the arguments against regulating title-based financing interests in a way similar to security interests is that the former are created through retention of a right A already has, not a grant of a new property right by B in favour of A. But this does not say much about nature of A’s interest. In discussion on the future of the law, it would be helpful to gain a better understanding of the right that A obtains. This chapter contributes to this understanding. In so doing, it also hopes to cast new light on the list of property rights in English law. While the list may generally be closed (numerus clausus), this papers seeks to make a case, based on the current law, for the recognition of a new type of property right. The purpose of this chapter is to examine the proprietary nature of title-based financing interests and their place in property law. It explores whether title-based financing interests confer as much protection on the owner as absolute ownership, i.e., whether it is correct to say that A simply retains title to an asset, so no new property right is involved. If a new form of property right is created, which is distinct from ownership, but has not been granted by B to A, it is necessary to consider whether the law regulates it appropriately, taking into account the interests of third parties on whom the right impacts. The chapter does not seek to debate the","PeriodicalId":114415,"journal":{"name":"Modern Studies in Property Law","volume":"129 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133418460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0