Private Law Theory

ABSTRACT
For nearly a century, scholars have debated whether personal property servitudes are valid. That is, can buyers and sellers of chattels write contracts that bind future purchasers? Buyers and sellers of real property can use covenants and equitable servitudes to bind future purchasers, but whether the same is true for personal property is controversial. This article makes three main contributions to the debate. First, it sets out the first sustained argument in favor of personal property servitudes. Second, it explains how notice to subsequent purchasers can be provided using a combination of existing registries and new technologies, thus addressing the problem of information costs. Third, it suggests that potential problems with personal property servitudes – such as low-value, obsolete, and ‘orphan’ servitudes – can be minimized by registration and renewal fees. These fees can be conceptualized as Pigouvian taxes ensuring that those who create and benefit from servitudes take into account the information costs they impose on third parties. More generally, this Article encourages a more nuanced discussion of personal property servitudes. We should move past arguments about whether chattel servitudes should be enforced or banned altogether. Instead, scholars should focus on institutions and doctrines that maximize the potential benefits of servitudes while minimizing their costs.

Klerman, Daniel M and Bechtold, Stefan, Personal Property Servitudes Revisited (January 13, 2025), USC CLASS Research Paper No 2502; Tulane Law Review, forthcoming.