… This Article argues that property law provides the missing piece of the contractarian puzzle in demarcating the boundaries of corporate law and explaining the distinctive features of corporate law. In this conception, the corporation is an ownership structure – a device for turning a messy set of property, contractual, and other in personam claims into an orderly package of in rem property rights, called ‘shares’. The in rem structure depersonalizes these rights, allows the rights to be divided and transferred without contractual assent and without entanglement with the personal attributes of the holder. The key to the property nature of this ownership interest is the residual control – voting rights – that solidify the status of common stock as a property interest rather than a contractual interest.
The property theory’s assertion that claims on the corporation are a mix of property and contract rights provides traction in otherwise slippery areas of corporate law. If there is a line to be drawn between contract and property, this dividing line identifies the boundaries of distinctively corporate law from corporate-tinged contract law. Accordingly, the rationale for shareholder-only fiduciary duties is not primarily that shareholders are the residual claimants in the economic sense, but because they have an ownership interest unique among corporate claimants. The property theory of corporate law best explains many features of corporate law and clarifies otherwise murky line drawing exercises in fiduciary duties.
Anderson, Robert, A Property Theory of Corporate Law (July 16, 2019).