Konstanze von Schütz, ‘Keeping It Private: The Impossibility to Abandon Ownership and the horror vacui of the Common Law of Property’

ABSTRACT
In the common law of property, it is generally impossible to abandon one’s ownership. This paper explores the impossibility. It shows that owners cannot abandon land and chattels, let alone have a legal right to do so. It then puts forth an account of the common law’s restrictive attitude towards abandonment. I demonstrate that and how this attitude can only be fully understood in light of the common law’s conception of ownership. This is so because the fear that motivates the restrictions on abandonment, the common law of property’s horror vacui, is a fear of the absence of common law ownership in its specific normative significance. Crucial features that characterize common law ownership and that shape the legal rules on abandonment are 1) its monism, 2) its grounding in a private-ownership paradigm, as well as 3) its assignment of proprietary responsibility exclusively to owners. Owing to these features, recourse to a model of ‘public ownership of last resort’ to appease the horror, and as adopted in France and Québec’s civil law, is barred. The common law’s only possibility to appease the horror is to ensure that ownable things are kept in private hands as long as possible – the common law must ‘keep it private’. An account that identifies the legal rules on abandonment as catering to the common law’s urge to ‘keep it private’ comprehensively captures the entirety of the doctrine. It shows why it can be warranted to oblige owners to continue to assume their proprietary responsibility.

von Schütz, Konstanze, Keeping It Private: The Impossibility to Abandon Ownership and the horror vacui of the Common Law of Property (December 22, 2020). McGill Law Journal, forthcoming.

Leave a Reply