This paper attempts to show that, among the main conceptions of contract in civilian legal traditions, some of them remain ideologically grounded on a proprietary concept that cannot be reduced to the right of property, legally speaking. This proposal starts with the observation that in contract law, there are some rules, some interpretations, some theoretical discourses and intellectual constructions that imply ‘property structures’. What I mean by a property structure is a theoretical structure that has to do with the idea of property but which is not considered as a right of ownership and, furthermore, which is not to be legally treated as such. Property structures have other functions apart from those usually associated with the issues raised by the right of property, although they are vehicles of proprietary ideas in contract law. Property structures have underlying functions. They inform contract law with a system of values. They draw invisible guidelines for contract law interpretation. In this paper, two occurrences of property structures are identified: property structures underlying the concept of contract as a transfer of rights and damages for breach of contract.
Vincent Forray, Property Structures Underlying Contract (The Proprietary Properties of Contract), European Review of Contract Law, Volume 9, Issue 4, Pages 287–306, ISSN (Online) 1614-9939, ISSN (Print) 1614-9920, DOI: 10.1515/ercl-2013-0020, December 2013.