It is suggested here that the core of English property law is not concerned with ‘assets’, and which assets are classed as property and which are not. Nor is it concerned with which ‘interests’ are proprietary and which are not. Instead, it is exclusively about sharing of assets, and which shared or derivative interests are possible. We could say that any asset that can be shared is ‘property’, so long as we then recognise that the key ‘property’ questions are exclusively concerned with the various possible sharing arrangements and shared interests in that asset. Defining these sharing arrangement inevitably requires the imposition of obligations on the parties to the arrangment, with this achieved either by agreement or by operation of law, and with the corresponding acquisition by each party of rights against the other.
One of the clearest examples of this is with debt. In a classificatory system that divides property and obligation, a contract creating a debt is the clearest example of ‘obligation’. And yet this asset can be ‘shared’: it can be held on trust or used as security, and those arrangements can be put in place by agreement or by operation of law.
Thus the most incisive and revolutionary contribution of English property law lies, it is suggested, in this novel idea: that it is English law’s greater flexibility and innovation in recognising sharing arrangements, and its concession that all wealth can be shared in some way, that is the true English ‘genius’. It is this that has enabled English ‘property law’ – the English law of sharing assets – to be more flexible, more commercial, more responsive, and therefore more useful and more attuned to modern times than the equivalent laws in civilian jurisdictions.
Worthington, Sarah, Revolutions in Personal Property: Redrawing the Common Law’s Conceptual Map (January 1, 2018) in S Worthington, A Robertson and G Virgo, Revolution and Evolution in Private Law (Hart Publishing, 2018), Ch 11; University of Cambridge Faculty of Law Research Paper No 8/2018.