property

Development of Property Law

Protection and content are given to the ownership of property by custom or law. The type of property law in a society may be taken as an index of its social and economic system. For example, a primitive pastoral tribe that must be closely united to resist its enemies may hold pasture lands in common or rotate ownership, thereby avoiding disruptive quarrels. By contrast, in societies that enjoy an economic surplus and relative security, the institution of private property may be highly developed, with marked division of ownership and a competitive struggle for control. On the other hand, private property may be all but eliminated in certain societies, as in those envisioned by Karl Marx.

In Europe, the distinction between realty and personalty served the purposes of early feudal society. The ownership and disposition of land, the basis of most wealth and the keystone of the social structure, were controlled to protect society, while the ownership of personalty, being of minor importance, was almost unfettered.

As the economic system was altered during the late Middle Ages, however, personalty lost its subordinate position and grew to be the economic mainstay of the rising middle class of merchants and manufacturers. Personalty could be bought and sold in relative freedom without the hindrances that beset the disposal of land. By taking advantage of its economic freedom, the middle class was able to replace the landed aristocracy as society's dominant class. Concurrently, it sought to relieve real property of its medieval fetters in order to use it, along with personalty, as revenue-producing capital.

Gradually the law of realty tended in all important respects to be assimilated to that of personalty. In time land could be sold or distributed by will with almost perfect freedom; in effect it joined the list of other commodities. Differences of detail in the law of realty and personalty persist, especially in the transfer of realty, however, which involves great formality.

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The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2012, Columbia University Press. All rights reserved.

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