Comparative Personal Property: The Case of Shares

Abstract

1.1 Nowadays shares are the primary store of wealth and have taken on the special position that used to be of land. Shares can be studied in company law and in the law of personal property. The subject remains the same, but the emphasis changes. This thesis analyses shares in and from the perspective of personal property. Two things follow, one represented by the ordinary vocabulary of property, the other to do with the definition of property. Thus, first, the vocabulary of property points to recurrent concerns of that area of law such as acquisition and protection, whereas the intricacies that characterise shares as the object of company law fade into background. Secondly, shares as personal property call for a more technical meaning of property as 'proprietary rights', as opposed to the generic meaning of property as 'wealth'.1.2 Shares are movables of an exceptional nature, because they do not comply with the rules dictated for ordinary chattels or intangibles. Traditionally, property in shares is acquired by entry of the transferee's name in the register of the company. Nowadays shares can also be held and traded through new market mechanisms: computerisation and globalisation have exacerbated the difficulties of legal analysis.1.3 Property rights in company shares have dominated major recent common law litigation. This litigation is often about companies becoming insolvent after dealing with the shares in a fiduciary capacity, e.g. as brokers or custodians involved in the trading of securities. There are obviously many aspects of ordinary stories of bankruptcy: those of company or insolvency law are usually given great attention. Somewhat surprisingly, the proprietary aspects have been neglected. This reflects the seeming indifference of the literature and of English law schools in the law of general property. A comparative perspective can help to make good this deficiency. It recurrently escapes legal observation that many claims in an insolvency context are no more than attempts to establish the priority of one's proprietary interest in the securities over other creditors.Acquisition and protection of property rights in shares are better tackled by observing how analogous problems are solved in other legal systems. The ultimate aim of this thesis is to gain some comparative insight from the standpoint of English and Italian law, thus verifying the actual meaning of some categories of the law property, among which ownership and possession, vis-à-vis the cases.