11

On the Very Idea of Transmissible Rights

James Penner*

In order to understand transmissible rights, rights which can be transferred by way of gift or contract, and which may pass from one person to another by operation of law, for example on death or bankruptcy, we need to address two questions. The first question is conceptual. How are we to conceive of an ideational entity like a right being the subject of a transfer? The second is moral. How should we go about justifying an owner’s power to transfer the right he holds: in particular, can such a power be justified in a ‘state of nature’—more precisely, on moral grounds which would apply universally—or do owners have such a power only because of the institution of a convention? Before pursuing these questions, however, a brief word on why this matters.

1. Title and Succession

Lawyers distinguish between the case where a person acquires land as a successor in title from a previous owner, say by a conveyance pursuant to a contract of sale, and the case where a person acquires a title to land merely by taking possession of it, which (adverse) title may, by virtue of a limitation act, become the best or only title to the land following the extinction of the prior owner’s title. In the first case, we say the title holder in question is the transferee of the title or the right to the land from the transferor. In the second case, the adverse possessor acquires an entirely new title in the land (which he can, of course, transfer to another). It is not necessary to cloak the distinction in the common law doctrine of relativity of title to make sense of this. All one needs is the distinction between rights that are acquired by transfer and rights originating in the taking of possession. So, for example, one might hold that following 12 years of disuse—evidenced, perhaps, by the use of the adverse possessor whose possession itself does not give rise to any title—an owner’s title is deemed to be abandoned, with the result that the owner’s

* I must thank participants at the PFPL conference for their very helpful comments, and also, for theirs, George Letsas, Arthur Ripstein, Irit Samet, Prince Saprai, Jeremy Waldron, and Charlie Webb. I owe particular thanks to Rob Chambers, Miguel Lopez-Lorenzo (who suggested the final title), Nick Sage, and Henry Smith, all of whom read several drafts. None bears any liability for this final version.

On the Very Idea of Transmissible Rights

245

property is once again res nullius with the consequence that the next possessor acquires a good, new title.1

A second example of the distinction is provided by assignable personal rights, like debts, or company shares. Again, there are two alternatives which, whilst not coinciding precisely with the distinction between the acquisition of title by transfer and the acquisition of title by possession, turn on distinguishing between a right acquired via a transfer and a new right arising in consequence of a different sort of event. Debts can be assigned, i.e. transferred, under s. 136 Law of Property Act 1925, which requires the assignment to be in writing and the debtor notified. As a debt is intangible, there is no parallel to the case of land by which a third party could acquire such a right by possession. But in such cases novations can occur. That is, the debtor could agree to undertake the same obligation that he has to his creditor in favour of a third party in consideration of the creditor’s releasing him from that debt. In the case of company shares, for example, on this view of things the company would agree to cancel the shares of the ‘transferor’, at the same time issuing shares in favour of the ‘transferee’. The parallel with abandonment, which extinguishes the prior right, and the originating of a new right is obvious. And a novation no more links the two rights together to give rise to a genuine transfer than does the case of adverse possession of land. Indeed, in the case of a novation, the very term indicates that the second right is a new one. What is most pressing about the case of assignable personal rights, if we take their assignability seriously, is that they force us squarely to confront the idea that an intangible, ideational entity, i.e. a right, can be transferred, though one should note here that common law rights of ownership in land are also, in fact, ideational. An owner of land has an estate in the land, an abstract title determined by the length of the right to possession (or seisin).

Whilst in these examples I have contrasted cases of transfer with cases where a new (though similar) right arises on the occurrence of another event (adverse possession and novation), it is important to remember that transfer is only one example of succession to property rights in the law. Lawyers also understand that X’s rights might become Y’s rights in other ways, principally by operation of law. Death and insolvency are obvious cases. On death, X’s title to all of his tangible and intangible property either passes directly to his heirs by way of inheritance,2 as remains the case in most civilian legal systems, or to his personal representative, as is the case in modern common law jurisdictions. On bankruptcy, X’s title to all of his property will pass to his trustee in bankruptcy. The key point is that in all of these cases of succession, Y, whether transferee, heir, personal representative or trustee in bankruptcy, is conceived to take the very same right that X himself had. So what we are concerned with is the idea of a transmissible right, a right whose identity persists despite the fact that it passes from one person to another.

1This is one way of understanding acquisition of ownership by prescription.

2Inheritance has been abolished in England except for titles of nobility.

246	James Penner

2. The Argument against Transfer or Transmissibility Stated: The Hohfeldian3 Individuation Argument

Hohfeldians have a problem with the idea that Y can succeed, by transfer or otherwise, to X’s property rights. The reasoning goes as follows: rights are inherently relational. There is a right bearer, A, and a duty ower, C. Assuming the existence of this right–duty relation between A and C, it is not clear what it would mean to replace A with B, such that B could simply step into the shoes of A whilst at the same time preserving the identity of the very right that obtained between A and C. To put the point technically, perhaps fussily, this is a question of the individuation of rights. At first glance, we might naturally think that the parties to a normative relationship are essential elements of the normative relationship itself. If rights are individuated by their right bearers and duty owers essentially, then it trivially follows that any right held by A cannot be the ‘same’ right when held by B (and the same would apply mutatis mutandis when the identity of the duty ower(s) changes). For Hohfeld, the idea that there are no true transfers of rights would appear to be a necessary result of his analysis (perhaps one of its motivations). As Hohfeld understood his jural relations,4 right holders and duty bearers relate under two schemes: the paucital and the multital. A paucital jural relation obtains between two persons,5 and a multital jural relation, such as a right in rem, which at first glance appears to obtain between one right holder and a numerous class of duty bearers, is actually a chimera. Properly analysed, it is just a group of similar personal relations. So Albert’s claim-right to his copy of Leviathan really consists of a right that Tom not interfere with his right to immediate, exclusive possession of it, plus his right that Dick not interfere with his right to immediate, exclusive possession of it, plus his right that Mary not do so, and so on and on covering all the people within the jurisdiction. If Albert gives his Leviathan to Beatrix, then she now has an entirely new battery of claim-rights against all others not to interfere with her possession of the thing, including of course one against Albert himself. Whilst Albert may have a power to give his copy of the book to Beatrix, she having (in Hohfeldian terminology) a correlative ‘liability’ to be made owner of it, this is not really a power to transfer his set of jural relations to her, but rather a power to inaugurate an entirely new (though similar) set.

Whilst this power to inaugurate a new paucital right in the case of a novation is clear enough—this is simply the power to enter into contractual relations—it is not entirely clear how one ought to regard such a power in the case of tangible property. A kind of ‘directional abandonment’ route may be one possibility. In respect of tangibles like land or chattels, the notion of directional abandonment does appear to provide a ‘functional’ equivalent to the transfer of ownership. On a directional

3	Hohfeld 1919.	4 Hohfeld 1919.
5	Hohfeld 1919 (Part II), 72. Note 18 indicates that strictly speaking, such a right is ‘unital’ if it is

unique, and paucital if there are only a few similar rights obtaining between the right bearer and others, but Hohfeld is happy for ‘paucital’ to serve as a cover term for rights in personam.

On the Very Idea of Transmissible Rights

247

abandonment conception of transfer, A relinquishes his possession of a chattel in circumstances where his transferee, B, is likely or guaranteed6 to take possession next; when A does so and B takes possession, this, it might be said, operates, functionally at least, as a transfer.7

These ‘functional’ conceptions of transfer, the novation route to explaining the transfer of an assignable personal right, like a debt or share, and the directional abandonment route to explaining the transfer of a tangible appear completely straightforward (as indeed they are); whilst ‘technically’ the rights in issue prior to and after the transactions are distinct, we have a kind of ‘functional’ transfer of the rights in question. Though it remains the case that the rights prior to the transactions are not identical to the rights subsequent insofar as the identity of the relata is an essential feature of the right–duty relation—they are at best ‘faux’ transfers of rights if a transfer requires the transferee to have the identical right that the transferor has—this is not a problem because it makes no sense to say that B could have the same right vis-à-vis C that A had. On this score, the novation and directional abandonment routes illuminate the true nature of the ‘transfer of a right’, which is that this is merely a functional notion in which the transferee acquires a similar right to that held by the transferor, but not truly the very same right.

Two points must now be made about the possibility of ‘functional’ analyses of this kind. Consider a change in the factual possession of a copy of Leviathan. If I hand my copy to you, then you are now in factual possession, but your factual possession is simply that—it is not as if you have assumed my factual possession. As regards the fact of possession, the same result would obtain whatever events led to my loss of possession and your assumption of it. The idea of transfer, on the other hand, is inherently intentional, involving my putting you in factual possession with the intention that you will assume possession as a consequence of my doing so, and your taking possession with an intention to do so. Such a transaction may not, strictly speaking, bespeak a power on my part to transfer, but it identifies a particular way in which we understand that my factual possession is relinquished and yours realized. In the absence of such an understanding of this particular way of effecting the change in possession from me to you, we would not conceive of any other way of doing so as functionally equivalent to a transfer. So, the directional abandonment conception of transfer is only conceived of as a transfer by analogy with the real thing. To my mind, the order of explanation really must go in that order. By reversing the reasoning, we could conceive of transfers as functional equivalents of directional abandonments. But we don’t. This should bolster our sense that the distinction between transfer and either directional abandonment or novation is robust, and that our understanding of the former is prior to our understanding of the latter. The point can be made in another way: whilst empirically I can manage to put you in possession of a thing I possessed by way of directional abandonment, conceptually this cannot really amount to a transfer;

6For example, A puts B in possession of a book by handing it to him, and then says ‘I abandon this’. This assumes that A has a power to abandon.

7See Penner 1997, 84–5.