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Smith, Henry E. --- "Standardization in Property Law" [2011] ELECD 151; in Ayotte, Kenneth; Smith, E. Henry (eds), "Research Handbook on the Economics of Property Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on the Economics of Property Law

Editor(s): Ayotte, Kenneth; Smith, E. Henry

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209795

Section: Chapter 7

Section Title: Standardization in Property Law

Author(s): Smith, Henry E.

Number of pages: 26

Extract:

7 Standardization in property law
Henry E. Smith*


I. INTRODUCTION

One of the most striking features of property law is that it is far more standardized than
contract law. The main purpose of contract is to serve the parties' joint objectives, and
the law allows contracting parties a great deal of leeway to customize their agreements.
By contrast, property law starts with the need to establish a basic set of entitlements.
Aside from the very hypothetical world of some political philosophers, the members
of society never got together and consented to the various claims people made to par-
ticular resources. Instead, the law provides a framework for establishing, transferring,
and enforcing basic claims to resources. In doing so the law allows only a finite set of
defined basic types of property right. In civil law systems this mandatory standardiza-
tion is termed the `numerus clausus', which means `closed number' of property forms.
In common law countries, especially the United States, standardization is more of an
implicit feature of the property system, and is correspondingly weaker. Nonetheless, all
post-feudal property systems standardize, more or less, the basic building blocks of the
property system. The question is Why? If particular parties find that some other form of
property would serve their purposes better why shouldn't they be allowed to craft what
they want? Why is property law so different from contract law in this respect?
This puzzle has called forth a number of explanations that are less than satisfying.1
...