Proprietary Interests in Commercial Transactions

Proprietary Interests in Commercial Transactions

Proprietary Interests in Commercial Transactions

Proprietary Interests in Commercial Transactions


The most pressing problem facing commercial lawyers today is explaining the incidence of proprietary interests in personal property. This book provides a broad overview of the subject. It surveys the enormous range of possibilities and attempts to distill the patterns and approaches evident in the relevant legal analysis. The resulting overview provides a more theoretically rigorous and analytical framework of proprietary interests in personal property.


One of the more pressing problems facing commercial lawyers today is to explain the principles which determine when a remedy is proprietary and when it is not. This book seeks to advance the debate by providing an analysis, and resulting overview, of the incidence of proprietary interests in commercial transactions. the canvas is necessarily broad. Proprietary interests may be legal or equitable; they may be ownership or security interests; they may be interests created by agreement or interests arising by operation of law; moreover, they may be interests retained in assets previously owned absolutely or, alternatively, interests acquired in another's property.

In examining the breadth of these possibilities, the approach adopted is to seek out patterns and linkages which might enhance the precision and predictive value of legal analysis in the area of personal property. the resulting overview is aimed at providing a more theoretically coherent analysis of proprietary interests in personal property. the analysis is conservative: it adopts existing conceptual formulations, but subjects them to a more exacting appraisal in order to define their limits. the fundamental concepts of personal property law can then be more precisely defined and described. This, in turn, helps to clarify the practical application of these concepts in commercial dealings, whether the end is to resolve disputes between parties or to invent new and more effective commercial devices.

Two features of the analysis stand out as significant. the first is the necessary and intimate integration of contract and property law. Although proprietary interests may be broadly classified as ownership or security interests, these are relative concepts which are frequently subject to impinging contractual arrangements. the second significant feature is the prevalence of equitable proprietary interests. This prevalence is directly related to the ease with which equity is able to convert personal obligations into proprietary remedies. This possiblity is subjected to rigorous analysis in order to define clear rules which better describe the incidence of these interests.

The analysis suggests that existing basic legal principles are sufficient to deliver solutions to many of the current problems facing commercial parties. Moreover, this can be achieved without departing from accepted historical interpretations and applications of the law. What is needed is a better understanding of existing principles and a more sophisticated appreciation of their limits. Given this, these familiar principles are cap-

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