For those authors who adopt a ‘transfer’-based explanation of contract, even the act of promising to do something at some later time appears capable of effecting an immediate transfer of rights from promisor to promisee. This paper argues that this particular conception of contract presents a strong problem of fit from the perspective of the common law tradition, particularly where the rights being transferred are framed in terms of property, ownership or some other entitlement pertaining to things. This is because an account of contract as transfer must ultimately grapple with the requirement of delivery – or compliance with alternative formalities – which remains fundamental to the transfer of real rights in common law jurisdictions, and which largely corresponds to the approach taken on this issue by modern German law. Moreover, even the application of certain historically equitable doctrines, which may cast some doubt on this conclusion at first glance, ultimately reinforces the centrality of compliance with formalities as a requirement for the transfer of real rights within the common law tradition.
Sérafin, Stéphane, Transfer by Contract at Common Law and in Equity (February 8, 2019). Queen’s Law Journal, forthcoming.