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The Consequences of Possession$
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Eric Descheemaeker

Print publication date: 2014

Print ISBN-13: 9780748693641

Published to Edinburgh Scholarship Online: May 2015

DOI: 10.3366/edinburgh/9780748693641.001.0001

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PRINTED FROM EDINBURGH SCHOLARSHIP ONLINE (www.edinburgh.universitypressscholarship.com). (c) Copyright Edinburgh University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in ESO for personal use.date: 05 June 2020

Possession as a Source of Property at Common Law

Possession as a Source of Property at Common Law

Chapter:
(p.77) 4 Possession as a Source of Property at Common Law
Source:
The Consequences of Possession
Author(s):

Descheemaeker Eric

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748693641.003.0004

This chapter traces the provenance and development of the rule that possession generates a general property right at common law, presenting a view that is slightly sceptical of the orthodoxy. The chapter argues that this rule depends for its existence and validity on ex post rationalizations of historical procedure, and that these rationalizations have sometimes obscured the common law’s diverse aims in protecting possession. In light of these aims, it is argued that the common law is not inevitably committed to the view that possession always generates a property right. Indeed, there might be room within the existing authorities for common lawyers to construct a broader range of possible consequences of possession, with the result that the common law of possession might not be so far away from civilian systems as sometimes appears.

Keywords:   English law, common law, entitlement, relativity of title, Armory v Delamirie, Asher v Whitlock

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