Thursday, April 16, 2015
Donald Kochan (Chapman) has posted Keepings (NYU Environmental Law Journal) on SSRN. Here's the abstract:
Individuals usually prefer to keep what they own. Property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. As with the affection and attachment we have for our memories captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me” approach to property ownership.
We often focus on the means of acquisition or transfer in property law. We less often look at the legal rules that support one’s ability to keep what she owns. Yet, it is precisely the ability to keep property that motivates its acquisition and that serves as a necessary element in offering any property up in a transaction as well – the property’s value is directly correlated with the buyer’s confidence in the seller’s authority to transfer (which can only exist if the owner also has the authority to keep it, i.e. not transfer) and with the buyer’s own confidence in his ability keep the property once he acquires it in the transfer.
This Article will catalog and evaluate a variety of doctrines, assumptions, presumptions, principles, and guidelines that exist for the purposes of aiding owners in keeping their property. I use “keepings” and “keepings rules” as terms that will refer collectively to these parts of the substantive law and legal infrastructure. Included is an analysis of these keepings rules within a Hohfeldian framework of immunities. In conclusion, the Article explains why these keepings rules are a necessary and vital component of an effectively operating property system.