!!Экзамен зачет 2023 год / Honore. (with editorial intr. by Hodgson)
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G E O F F R E Y M . H O D G S O N A N D A . M . H O N O R E
Historically, there have been many reasons for separating the standard incidents into two or more parcels; indeed, historically speaking, the metaphor of ‘splitting’ may mislead, for in some cases full ownership has been built up from the fragments, not vice versa. Thus, the alienable, heritable, and indefeasible fee simple was evolved from the inalienable and intransmissible tenancy in fee, subject to onerous incidents of tenure.
But looked at from the point of view of their social function, the various cases of splitting fall into two main classes. Many of them are directed towards maintaining intact a physical thing or collection or, in more modern times, a fund, in order that this asset may serve a family or a business47 or an association over a substantial period. In this class fall such examples of splitting as concurrent interests in property (joint tenancy, tenancy in common, co-ownership, the interest of spouses in a community estate, the interest of members of an unincorporated association in the property of the association); and the ownership of property by juristic persons (corporations sole, Stiftungen, the state, joint stock companies). Secondly, splitting may serve the purpose of specialization, by separating management from the enjoyment of income and/or disposition of the capital; the beneficiary obtains the advantage of expert management of the property but also runs some risk. In this second class fall such devices as trusts, the Dutch bewind (administration), and incorporated companies.
Most of these institutions have been carefully analysed by specialist writers. Some of them present problems to a lawyer who has to work with a rule that every thing must have one and only one independent ‘owner’. Ought we, for instance, to speak of ‘equitable ownership’ or only of ‘equitable interests’? In answer to such questions generalities are unhelpful. If the [143] context is one in which stress is laid on income rights, we may be tempted to speak of ‘equitable ownership’ but, if powers of alienation are in question, the holder of the legal estate will alone qualify (if anyone) to be called owner.
There is, however, one device, formerly used mainly to keep a thing or fund in a family over a period, which has not been analysed as carefully as it deserves. This is the device of the estate. Its originality has been exaggerated by some, minimized by others. Considering it in its mature form, it provides for the present alienability of an indefinite number of successive interests in a thing, of which, however, not more than one may be a fee simple. Only one of these, obviously, can be presently vested in possession. It further provides for the creation of limited interests which may extend beyond a lifetime, such as estates tail. Finally, it provides for certain rules of descent to regulate the devolution of the thing in the cases where the interest is regarded as extending beyond a lifetime, e.g. again in the case of an entail. These are interesting devices, though not in every way successful. For instance, the freedom thereby given to property owners to impose fetters on
47 Gower, Principles of Modem Company Law (1954), p. 10.
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future generations turned out to be excessive, and counteracting devices such as the barring of entails were found desirable to redress the balance.
It is important, however, to see that to speak of the ownership of estates, of ‘many things each with its owner’,48 rather than the ownership of land or funds does not of itself constitute an original contribution to our legal resources. It would be quite possible, indeed, to reproduce all the important features of the doctrine of estates in the terminology of Roman and civilian systems. We have only to think of a set of rules whereby (i) all usufructs and other iura in re aliena are freely alienable; (ii) an indefinite number of successive vested usufructs may co-exist (as regards all but one, dies cedit sed nondum venit); (iii) multiple usufructs extending beyond a lifetime may be created; and (iv) these are of various types, to which names are given, and for each a particular mode of devolution and termination is prescribed. Such a scheme would incorporate all the innovations [144] introduced by the doctrine of estates. Would there, however, be any point, if it were introduced, in continuing to distinguish between dominium and iura in re aliena?
Clearly there would. The distinction would still neatly fit a vast mass of cases, in which the complexities of successive and multiple usufructs were absent, and also most cases in which they were present. But when multiple usufructs were introduced which might extend to an indefinite succession of usufructuaries (corresponding to entails), it would come to seem rather pointless to continue to call the ultimate reversioner dominos, because of the uncertainty that he would ever come into possession. There would, indeed, be an inclination to call the ‘usufructuary-in-tail’ dominos. But, obviously, at this limit, it would be clearer to abandon the terminology of ownership and speak simply of A as having a ‘usufruct-in-tail’, and of B as having a ‘reversion’. Only at this limit, however, would the contrast between dominum and iura in re aliena fade and its utility disappear.
There does not, then, seem any good reason why the introduction of the doctrine of estates should lead us to abandon the terminology of ownership; the puzzles it presents in peripheral cases are like those presented by other forms of split ownership in such cases, and may, of course, lead a lawyer, very reasonably, not to use the contrast of ownership with lesser interests in those cases.
4. Social control
‘Absolute’ is perhaps the most ambiguous word met in discussions of ownership. Sometimes it is used to deny the ‘temporary’ (intransmissible or determinate) character of an interest,49 sometimes to deny its defeasible character (liable to be
48Pollock and Maitland, op. cit., p. 4.
49Hargreaves, Introduction to the Principles of Land Law (1952), p. 44.
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divested by another, liable to escheat or forfeiture),50 sometimes to emphasize its exemption from social control.
In the last sense, ownership has never been absolute. Even in the most individualistic ages of Rome and the United States, it [145] has had a social aspect. This has usually been expressed in such incidents of ownership as the prohibition of harmful use, liability to execution for debt, to taxation, and to expropriation by the public authority.
Emphasis on the social aspect of ownership has, however, varied from age to age. Those ‘sacred and inviolable’ rights, which, according to the Declaration of the Rights of Man, no one could be forced to cede except for public necessity51 have become, in French law, liable to expropriation on grounds of public utility52 and subject to a general doctrine forbidding ‘abuse’. According to the liberal conception of ownership, there is a sharp distinction between government and ownership, imperium and dominium. Though, in a loose sense, the state may be said to have an ‘eminent domain’ over at least the land comprising its territory, this does not carry with it rights to possess, enjoy, or alienate it, so that the sense in which the state is owner is very loose indeed. The interest of the state, according to this conception, is confined to powers of expropriation and a minimum of restrictive regulation, together with the expectancy of acquiring property as bona vacantia or by escheat in a few rather remote contingencies.
Socialism has led to a revised view of the relation between government and ownership, at least as regards some important types of property,53 such as land and businesses. This means, in practice, that the owner’s privileges of using and powers of managing a thing as he wishes have been curtailed and that the social interest in the productive use of things has been affirmed by legislation. Negatively, this process has meant that, in the interests of health and comfort, many substances cannot be used at all or can only be used in certain ways. The sale of drugs is minutely controlled, only smokeless fuel may be used in certain areas, garden hoses may not be used at certain periods. Such instances, multiplied a thousand fold, have come to seem so natural that we hardly realize that the social interest in the use of things, the conservation of resources and in the [146] details of manufacturing processes is a modern, though it is also a primitive, conception.
Positive control by the state shades into prohibition. The positive duty to exploit one’s property in a socially beneficial way, as opposed to the prohibition of a harmful exploitation, has not been generally imposed or its implications fully worked out. The British Agriculture Act imposed an obligation on farmers
50Hargreaves, op. cit., p. 46.
51Declaration of the Rights of Man, art. 17.
52Code civil, art. 545.
53Friedmann, Law and Social Change in Contemporary Britain (1951), ch. 2.
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to observe the rules of good husbandry;54 the owners of patents can in certain cases be compelled to allow their exploitation.55 According to the Russian civil law book of 1944, the state has a general right to order forfeiture of property in case of mismanagement; there is also a general prohibition on the use of property to exploit others.56
A different form of state control is exercised by drawing a distinction between different types of ownership. In Russia the ownership of collective farmers, of handicraftsman, and of the government are all treated as differing from ‘personal ownership’ and from one another.57 The difference lies, of course, in the right of officials to interfere in the management of the former categories and in state regulation of income rights deriving from the property; also in differing rules about alienation. In this way, the sphere of operation of ownership in the liberal sense is narrowed and a form of state participation in management substituted in the remaining sphere.
A third form of social control consists in the exercise by officials of the management of things in the ‘private’ ownership of the state. Such arrangements present the form but not the substance of ownership in the liberal sense. Management and enjoyment are split, and political control, directly or indirectly, is exercised over the allocation of resources and the uses to which the thing owned is put. The nationalized industries in the United Kingdom follow this pattern of control.
Fourthly, social control may be exercised by a restriction on the type of thing that is subject to ownership by persons other [147] than the state, as in the Russian building lease, where the building is owned by a private individual, the land remaining in state ownership.58 In effect, this restricts the privileges of the building owner in the general interest.
It remains to be seen which combination of these techniques will prove most effective and most acceptable to the people who have to operate them. So far, they have not, singly or together, reached the point in any country at which they could be said to have displaced the liberal conception of ownership and replaced it by a social conception. In practice, the two overlap and operate side by side, together with various types of split ownership and ownership of funds which diverge, to a greater or less extent, from the standard instances depicted in the first section. The final picture is that of a set of related institutions of great complexity which are best studied against the background of the basic model – a single human being owning, in the full liberal sense, a single material thing.
54Agriculture Act, 1947, ss. 9–11. The Agriculture Act, 1958, Second Schedule, repealed s. 9.
55Patents and Designs Act, 1949, s. 16.
56Gsovski, op. cit., p. 557.
57Gsovski, op. cit., p. 569.
58Gsovski, op. cit., p. 580.