Contract and Property Law: Distinct, but not Separate

Abstract

Contract and property law are traditionally seen as rather distinct parts of a legal system. However, there is growing awareness that contract and property are not so separate at all. We can observe more and more fuzzy boundaries. Four examples (case studies) are discussed: reclaiming money, the non-accessory mortgage, protection of mortgagors, private re-registration of mortgages in the US: Mortgage Electronic Registration Systems (MERS). The fuzzy boundaries make us realise that the distinction between contract and property (in the classical, 19th century, model of private law: the absence or presence of the binding force of an arrangement on third parties) is becoming less of a binary and more of a gradual nature. It seems that a growing category of intermediary rights is developing, rights between contract and property law, which may very well prove to have become no longer a dogmatic anomaly, but a necessary supplement to the traditional distinction between contract and property law. If this analysis is correct, it might imply that we have to rethink our categorisation of private law into a law of contract and a law of property, as we had to rethink the categorisation of private law into a law of contract and a law of tort after Gilmore’s famous statement that contract law was dead, or at least drowning in a sea of tort. It is not argued that contract law, again, is dead, but that contract law may have begun a new life as part of a broader category of arrangements regarding objects with burdening effect vis-a-vis third parties, where classical contract is one end of the spectrum (no third party effect) and property is the other end of the spectrum (full third party effect).