Trading. – Just as in criminal law, so too with respect to real rights, the main advance of US law has been the liquidation of those traditional English concepts which did not fit American conditions.
The fundamental differentiation, of feudal origin, of goods into the two kinds, personal (personal property ; personalty) and real (real property, realty) has been preserved; indeed in the United States it has been ingeniously accentuated and there is no likelihood of it being abandoned, as has recently been the case in England. This difference is fundamental with regard to the transfer. The realty (that is, originally, the land, which in the feudal system had a prevailing position) can be transferred only through a formal document; the personalty by consent, with or without tradition. Nonetheless, the marketability of land is much greater in the United States than in England and numerous agents, organized or not, are dedicated to the sale of land.
But the changes undergone by the law in America have above all been rich in effects as regards the fundamental concept of property. The theory of landed property in common law was based on the feudal concept of concession (tenure); land was more possessed than real property. A curious survival of this is found in terms landlord (literally “ master”) and tenant (conductor), now applied exclusively in the leases (leases), where feudal conceptions are less apparent.
This notion of tenure, which essentially implies a conditional right of possession and use rather than true ownership, was soon replaced in the United States by a true concept of domination, derived from natural law ideas but expressed in the terminology of common law, p. for example, in the use of expressions such as freehold (originally, the fiefdom granted to a free man and for life) and fee simple (the fiefdom that can be sold in whole or in part, and without limitations as to succession).
And the unlimited character of land domination has contributed more than anything else to equating land ownership with movable property. In both cases the domination was made almost absolute, and also included the ius abutendi. Only reluctantly did the legislation end up imposing restrictions on landowners in the interest of neighboring ones or for reasons of public utility; and these laws risk being in conflict with the well-known “due process of law” clause of the Fourteenth Amendment.
Another step towards the assimilation of the realty to the personalty was made with the reduction of the terms for the acquisitive prescription of the right of ownership on the land. The trend towards this assimilation has shown itself more in the central and western states than in those on the Atlantic coast and is inspired more by the desire to encourage the occupation and enhancement of land than by the theoretical one to assimilate the two. property types. In many states, the statute of limitations is five years rather than the usual twenty years. It can be observed that in common law, prescription generally implies not the “ right title” and “good faith”, but the absence of these elements,
The multiplicity of systems of ownership (tenure) reduced in the common law was also greatly reduced by the revolution following the aversion to limitations to succession (entail), an aversion that also characterized the revolutionary movement in Europe. In fact, in the colonies there were few trusts, although there were; and the principle seemed harmful and undemocratic. Many state constitutions abolished them.
The real justification of the aversion to family trusts rested more than in the fear that they had as symbols of an oligarchy, in the obstacle which they put in the way of the marketability of landed property. Land has always been a favored form of capital investment in Anglo-Saxon countries, partly due to the strength of tradition which made it the most coveted type of property, partly due to its apparent permanence. In the United States, the abundance of unoccupied land in the west made it impossible to attach the same importance to land as in Europe, where land limitation and its necessity gave great economic power to landlords. The ease with which the land could be abandoned as the western occupation progressed,
And this state of affairs in turn created the need for a security of property titles that was not felt in England, where the continued occupation of a land by the same family group was already a guarantee. England did not feel the urgent need to register the titles until the end of the century. XIX and still does not have a complete transcription system. But in the United States, land had become a marketable commodity like any other, and the subject of a lively trade. It was imperative to have a means of examining property claims or the right to dispose. And this could only be achieved with a registration system, accompanied by an almost complete cadastre; and this system was adopted. The most famous of these systems is the one called the Torrens system, borrowed from Australian legislation where similar conditions soon gave rise to the same need.
The general principle of these laws is that registration is not essential as regards the improvement or transfer of title, but is conclusive proof of knowledge of the registered document. Land buyers must therefore consult all these documents in order to determine the title. This has resulted in elaborate qualification-seeking procedures and the formation of a group of specialist lawyers.
Just as the relative certainty of title was a prerequisite for frequent land ownership transfers, so too the abolition not only of trusts and similar limitations to free availability, but of all similar restrictions was urgently required. In England at the end of the century. XVII the faculty to determine, by inter vivos deed or will, the future devolution of the property, had been limited to “living persons and their successor until the age of majority” by the ” Duke of Norfolk’s case), which fixed the jurisprudence. In the United States, this restriction was also inadequate and in many states a maximum was set, ranging from 25 to 50 years. This “rule against the provisions in perpetuity” applied only to the land but in other laws the restrictions on the alienation of other assets were prevented, as a fundamental doctrine of common law, for reasons of public order.
American law facilitates the use of land as a loan payer. The mortgage (mortgage) substantially similar to the Roman one, had become in England the subject of conflict between the ordinary courts of law and the chancellery. The United States accepted the current doctrine, which often reduced the mortgager’s right to a simple right protected by the registry, therefore popularly called an ” equity of redemption”., i.e. to buy back the land from the creditor). It can be said that an extraordinarily large portion of the land in the United States is mortgaged because the demand for working capital is large and the profits offered by securities are usually greater than the interest rate on mortgages.
The transfer of movable property is now governed by a Uniform Sales Act already accepted by 34 states in 1935. It generally retains the rule of common law that for the transfer of the right no surrender is necessary, but consent is sufficient.. It also sets out a number of circumstances under which consent is presumed. Likewise, the rule of common law caveat emptor, which requires the buyer to expressly stipulate any guarantee of the usefulness or marketability of the thing, has been essentially modified by introducing the presumption of this guarantee for many situations.
One of the most notable features of American economic life is the widespread use of installment). Thanks to these forms of sale it has been possible to extraordinarily spread the use of modern technical devices, such as cars, electrical appliances for domestic use, etc., which the high price kept away from people of modest economic status. Such installment contracts are of the nature of conditional sales and their main purpose is to protect the seller, who loses the availability of the item, against the defaulting buyer. It is generally stipulated that the right is not transferred before the last payment has taken place, but that the risk is transferred immediately instead. Recently, a tendency has also emerged to safeguard the buyer, to whom recent laws allow him to maintain a fair right to redemption and reimbursement even after his default has been ascertained.
Since such sales occur frequently between citizens of different states, a Uniform Conditional Sales Act has also been proposed – and adopted by a dozen states. In states that have not accepted it, the diversity of laws still creates confusion and is often the cause of excessive burdens.