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Transfer by Contract in Kant, Hegel, and Comparative Law

  • Stéphane Sérafin

Kant and Hegel offer two very different accounts of contract as a transfer of rights. In this paper, I argue that Kant’s approach largely corresponds to that taken by the German legal system, in which the transfer of property rights arises separately from the original contractual obligation. Hegel’s account of contract is instead most comfortably associated with the approach taken by the French legal system, in which a contract is sufficient on its own to effect a full transfer of property rights. I conclude that only German law and Kantian transfer theory properly conceive of contract as an obligation, while the Hegelian and French approaches risk erasing the obligational content of contract entirely.

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1. See Grotius, Hugo, De Jure Belli Ac Pacis Libri Tres, translated by Kelsey, Francis W (Clarendon Press, 1925) bk 2 at ch 11, para 4.

2. LL Fuller & William R Perdue Jr, “The Reliance Interest in Contract Damages: 1” (1936-1937) 46 Yale LJ 52 at 62; with respect to the use of transfer theory as an alternative explanation for the expectation damages rule, see most notably Peter Benson, “Contract as a Transfer of Ownership” (2006-2007) 48 Wm & Mary L Rev 1673 at 1674-75, 1693 [Benson, “Contract as Transfer”].

3. Helge Dedek, “A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract” (2012) 25 Can J L & Juris 313 at 319-20; here, Dedek refers to the arguments put forward by Theodor Schmalz, who argued that natural law scholarship had confused the acceptance of the promise with the physical acceptance of a thing, when a proper transfer-based theory of contract would require that the effects ostensibly attached to the acceptance of a promise be explained on their own merits: see Theodor Shmalz, Reines Naturrecht (Königsberg: Nicolovius, 1792) at 63f, para 96.

4. Dedek, ibid at 337; Kant, Immanuel, The Metaphysics of Morals, translated by Gregor, Mary J, 2nd ed (Cambridge University Press, 1996).

5. Dedek, supra note 3 at 339.

6. Georg Wilhelm Friedrich Hegel, Philosophy of Right, translated by TM Knox (Oxford University Press, 1967); it is primarily on Hegel, rather than Kant, that Benson bases his own account of contract as transfer: see Benson, “Contract as Transfer”, supra note 2 at 1723; see also generally Peter Benson, “Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory” (1988-1989) 10 Cardozo L Rev 1077.

7. Hegel, supra note 6 at para 40.

8. See especially ibid at para 71, where Hegel discusses the transition from property to contract; for his part, Grotius presents the perfect, enforceable promise as “manifested by an outward sign of the intent to confer the due right upon the other party”, which “has an effect similar to the alienation of ownership”: see Grotius, supra note 1.

9. This classificatory scheme reflects the particularly strong historical importance of the French and German codifications; for present purposes, however, it is worth noting that some continental jurisdictions present hybrid approaches to transfer by contract, as would appear to be the case of Austria: see Christian von Bar and Ulrich Drobnig, eds, The Interaction of Contract Law and Tort and Property Law in Europe (Sellier European Law Publishers, 2004) at para 483.

10. In this respect, the transfer of property can be said to “follow the same pattern” as its original acquisition: see Zekoll, Joachim & Reimann, Mathias, eds, Introduction to German Law, 2nd ed (Kluwer Law International, 2005) at 234.

11. Henri Mazeaud et al, Leçons de droit civil, t 2, vol 2, 8th ed by François Chabas (Montchrestien, 1994) at para 1612.

12. The apparent problem created by unilateral acquisition of in rem rights with erga omnes effects is discussed, e.g., in NW Sage, “Original Acquisition and Unilateralism: Kant, Hegel and Corrective Justice” (2012) 25 Can J L & Juris 119; see also Arthur Ripstein, “Private Order and Public Justice: Kant and Rawls” (2006) 92 Va L Rev 1391 at 1423-24; Ernest Weinrib, “Poverty and Property in Kant’s System of Rights” in Corrective Justice (Oxford University Press, 2012) 263 at 279-80; as Alan Brudner seems to recognise, the same basic difficulty applies to contractual transfers as well: see Alan Brudner with the collaboration of Jennifer M Nadler, The Unity of the Common Law, 2nd ed (Oxford University Press, 2013) at 127.

13. As Reinhard Zimmermann explains, “Roman law was an actional law… only where there was a remedy was there a right”, adding that “[t]his remedy, in the case of obligations, was always an actio in personam: the plaintiff was not asserting a relationship between a person and thing… but rather a relationship between two persons”: see Reinhard Zimmermann, The Roman Law of Obligations (South Africa: Juta & Co, 1996) at 6-7.

14. This reading is usually based on Dig (Ulpian); it can be contrasted with the view expressed in FH Lawson, “The Passing of Property and Risk in Sale of Goods—A Comparative Study” (1949) LQ Rev 352 at 360 (arguing that since Roman law recognised the passing of risk immediately upon the perfection of a contract of sale, it must have preceded French civil law and the common law in granting some proprietary effects to contracts).

15. Zimmermann, supra note 13 at 278.

16. Classical Roman law recognised three forms of conveyance, namely the traditio, mancipatio, and the in iure cessio; besides the latter category, which can be understood as essentially a court order recognising the transfer of any type of property, the mancipatio was a special form of ceremonial transfer required for particularly valuable things (res mancipi): see G 2.14a, 2.22.

17. The categories “movable property” and “immovable property” are largely analogous to the Anglo-American common law notions of “personal property” and “real property”, respectively, though civilian legal systems have tended to emphasise unitary approaches to the transfer of both types of property: see Max Rheinstein, “Some Fundamental Differences in the Real Property Ideas of the ‘Civil Law’ and the Common Law Systems” (1935-1936) 3 U Chi L Rev 624 at 635 (explaining that the “outspoken end of the German codifiers was to assimilate land transactions as far as possible to the transactions in chattels or in stocks”).

18. Art 929 BGB; this particular provision can be contrasted with art 433 BGB, according to which “the seller of a thing is obliged to deliver the thing to the buyer and to procure ownership of the thing for the buyer”.

19. Zekoll & Reimann, supra note 10 at 234; the notion of a “real” contract, which is shared to various extents by all modern civilian legal systems, can be traced back to the Roman notion that referred to a contract concluded by one party’s delivery of property: see Inst 3.14.

20. German law refers to the need for this second, properly dispositive contract as the “Trennungsprinzip”—the separation principle.

21. Art 873 BGB.

22. Art 433 BGB.

23. In the case of immovable property, German law goes even further by conceptualising the act of registration as effecting the transfer of title independently of the agreement to register: see Zekoll & Reimann, supra note 10 at 236; accordingly, it is possible to speak of German law requiring three separate steps to effect the transfer of immovable property, namely the agreement to purchase and sell, and the agreement to transfer, and the actual transfer by registration.

24. Zekoll & Reimann, supra note 10 at 236 (explaining that “all changes of rights in land… do not depend on an underlying obligatory contract as far as their existence and validity is concerned”); this is known in German law as the Abstraktionsprinzip—the abstraction principle; in theory, this principle also applies to the validity of transfers of movable property, which remains independent of the original contract by which the parties undertook to perform their respective obligations: see Mazeaud et al, supra note 11 at para 1619.

25. See, e.g., Ontario’s Land Titles Act, RSO 1990, c L.5 and New Zealand’s Land Transfer Act 1952 (NZ), 1952/52; at least a few authors have argued that the South Australian inventor of the system, Sir Robert Richard Torrens, effectively copied the approach to title registration that was already being practiced in Hamburg: see the discussion in Greg Taylor, The Law of the Land: The Advent of the Torrens System in Canada (Osgoode Society for Legal History, 2008) at 27-30.

26. The first of these innovations is encapsulated by the so-called “mirror” principle, according to which the register book, not the purchase agreement, constitutes the source of the owner’s title to land, while the latter refers to the effect of the Torrens register as a “hospital” that cures existing defects: see ibid at 10, 12; the argument that these principles require the adoption of the German approach to transfers by contract is proposed in Gaële Gidrol-Mistral & Thuy Nam Tran Tran, “Publicité des droits et prescription acquisitive : des liaisons dangereuses?” (2016) 46:2 R Gen D 303 at 309.

27. Zekoll & Reimann, supra note 10 at 234.

28. In respect of unilateral acquisition, art 958, para 1 BGB provides that “[a] person who takes proprietary possession of an ownerless movable thing acquires the ownership of the thing”; art 854, para 1 BGB, for its part, clarifies that “[p]ossession of a thing is acquired by obtaining actual control of the thing”.

29. Art 1134, para 1 CcF (1804) provided that “[a]greements lawfully entered into take the place of the law for those who have made them”; almost identical text is now found in art 1103 C Civ.

30. Art 544 C Civ defines the right of ownership (la propriété) as “the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations”; this definition largely reproduces the three categories of right that medieval commentators had derived from the Roman law notion of dominium, namely the usus, fructus and abusus.

31. Art 930 BGB; this article recognises that property can be transferred by granting the transferee “indirect” possession, a notion that is defined at art 868 BGB as the possession that the owner retains even while another has a temporary entitlement to the property by way of a usufruct, pledge, etc.; another way of accomplishing such a transfer without actual delivery is provided by art 931 BGB, which allows the transferor to complete the transfer of property by assigning to the transferee the right to claim delivery from a third party.

32. Such a development occurred with respect to the Roman stipulatio, for example, which was originally a verbal contract that required the promisee to ask a specific question, and the promisor to offer a specific response—and thus required that the parties be in physical proximity to one another at the time that the promise was made; over time, it became usual to record that the question had been asked and received the proper response in a written agreement, even if this had not actually taken place: see Zimmermann, supra note 13 at 80.

33. As Grotius put it, “[a]fter the introduction of ownership it is of the law of nature that men, who are the owners of property, should have the right to transfer the ownership, either in whole or in part”, adding that “this right is present in the nature of ownership, at least of full ownership”: see Grotius, supra note 1, bk 2 at ch 6, para 1.

34. See, e.g., Mazeaud et al, supra note 11 at para 1613.

35. Pre-revolutionary France lacked a single, unified legal system; some parts of the country followed Roman law, while others followed custom that was largely influenced by Germanic sources: see ibid at 1615.

36. Members of the historical school are often called “pandectists”, in that they emphasised the Roman roots of the German legal system; although the relationship of the historical school with natural law can viewed as antagonistic in many respects, there is an interesting case to be made that members of the historical school pursued a particular natural law theory of their own: see Murray Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law (Kluwer Law International, 2003) at 134-37.

37. Art 1138, para 1 CcF (1804) provided that “[a]n obligation of delivering a thing is complete by the sole consent of the contracting parties”; the modern equivalent is found at art 1196, para 1 C Civ.

38. In principle, the seller’s obligation to transfer property in a contract of sale is thus be performed at the same moment that the agreement is concluded, without the seller accomplishing any particular act; in such a case, the only obligations that strictly matter from the perspective of the seller are those ancillary to the transfer of property, including the obligation to actually deliver the thing in question: see Marcel Planiol, Traité élémentaire de droit civil, t 2, 9th ed (Librairie générale de droit & de jurisprudence, 1923) at para 1447.

39. The possibility of deferring the transfer of property by agreement is now explicitly codified in art 1196, para 2 C Civ; beyond this, French law will recognise an automatic deferral of the transfer in a number of exceptional circumstances, the most notable of which are cases where a contract provides for the sale of as-yet unascertained goods: see Mazeaud et al, supra note 11 at para 1618.

40. Art 1198 C Civ (author’s translation); taken together, arts 1454, 2941 CCQ largely reproduce the same effects in Quebec civil law.

41. The ability to enforce the transfer of property against third parties is part of what French authors call the notion of “opposabilité”, according to which the legal result brought about by contract can be set up by and against third parties to the original transaction: see Jacques Ghestin et al, Les effets du contrat, 3rd ed (LGDJ, 2001) at para 678.

42. The exception is that the subsequent purchaser must acquire possession in good faith; according to art 550, para 1 C Civ, this means that he must possess “as owner, under an instrument of transfer of whose defects he does not know”; German law provides for similar exceptions at arts 892, 932 BGB, while the Anglo-American common law equivalent is the notion of equitable notice preserved by many Torrens title registration systems; on this last point, see, e.g., Douglas C Harris & May Au, “Title Registration and the Abolition of Notice in British Columbia” (2014) 47:2 UBC L Rev 535 (comparing the approach taken under British Columbia’s Land Title Act, RSBC 1996, c 250, s 29(2) to that of other jurisdictions).

43. 2017 SCC 22.

44. Ibid at paras 32, 52; acquisitive prescription, which is roughly analogous to the Anglo-American common law notion of adverse possession, is defined by art 2910 CCQ as “a means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession”; a similar definition is found in art 2258 C Civ.

45. Gidrol-Mistral and Tran, supra note 26 at 309.

46. See Loi du 23 mars 1855 sur la transcription hypothécaire, JO, 20 August 1944, 55; this publication regime was later replaced by the Décret n o 55-22 du 4 janvier 1955, JO, 4 January 1955, 346; for its part, the current art 1198 C Civ owes its existence to the Ordonnance n o 2016-131 du 10 février 2016, JO, 10 February 2016, 35, s 2.

47. Art 1141 CcF (1804) provided that “Where a thing which one is bound to transfer or deliver to two persons successively is purely movable, the one of the two who has been put in actual possession is preferred and remains owner of it, although his title is subsequent as to date, provided however that the possession is in good faith”.

48. This maxim is codified at art 2276 C Civ.

49. See Mazeaud et al, supra note 11 at para 1540; as the author explains, the very notion of prescription implies a passage of time, which seems to contradict the possibility of such a right arising immediately upon the subsequent acquirer’s taking of possession.

50. See generally Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1916-1917) 26 Yale LJ 710; the expression “in personam” is also used in a well-known passage in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd, [1915] AC 847 at 853, where Viscount Haldane invoked it as part of his justification for the common law doctrine of privity of contract.

51. In making this argument, I am aware Arthur Ripstein has argued that Kant’s theory of contract does not properly rest on the notion of “transfer”: see Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press, 2009) at 113; his basis for reaching this conclusion, however, appears to be precisely the fact that Kant does not subsume the transfer of contractual rights within the transfer of property.

52. Kant, supra note 4 at 57.

53. Ibid at 59.

54. According to Kant, there can only be three forms of acquired right, namely a corporeal thing, another’s choice to perform a specific deed (a prestation), and another’s status in relation to oneself: see Kant, supra note 4 at 37-38; the prestation is the acquired object that corresponds to the ius personale—that is, the in personam right: see ibid at 48.

55. This view of the prestation as the proper object of the transferred right is broadly consistent with the view found in art 1371 CCQ, which provides that “[i]t is of the essence of an obligation that there be… a prestation which forms its object”.

56. This order is reflected in the manner in which Kant approaches the acquisition of a prestation by way of contract before turning to those classes of contracts that also effect the transfer of property: see generally Kant, supra note 4 at 59-60.

57. Peter Benson goes so far as to reject Kant’s proposed distinction between the promise and the effect of the promise on the basis that “Kant’s view that the object transferred is the promise and not the thing promised necessarily implies a change of ownership with respect to the thing as between the parties at formation”: see Benson, “Contract as Transfer”, supra note 2 at 1722.

58. Dedek, supra note 3 at 337.

59. This is the only meaning that Kant could have properly given to the phrase “I have become enriched (locupletior) by acquiring an active obligation on the freedom and means of the other” in the excerpt reproduced at 19 above, since the enrichment appears in the form of the right to demand performance, not the acquisition of a particular thing; it also appears consistent with Ernest Weinrib’s conception of contract as a “voluntarily assumed correlative change” in the moral position of the parties: see Ernest Weinrib, The Idea of Private Law, 2nd ed (Oxford University Press, 2012) at 137.

60. By “promise theory”, I mean those theories that view the promise as creating rights that did not properly exist before it was made: see Stephen A Smith, Contract Theory (Oxford University Press, 2004) at 56.

61. This reflects Kant’s distinction between ethical duties, in which the incentive is the idea of the duty itself, and juridical duties, for which the incentive is justified coercion: see Kant, supra note 4 at 20.

62. Fried’s theory does not make the same distinction as Kant does between coercible promises and promises generally; accordingly, he finds himself rejecting the doctrine of consideration as inconsistent with his theory, and must find another basis for explaining the doctrine of unconscionability: see Charles Fried, Contract as Promise (Harvard University Press, 1981) at 37-38, 110-11.

63. Fuller & Perdue, supra note 2 at 61-62.

64. See note 11 above and accompanying text; the argument appears to be based primarily on Kant, supra note 4 at 44-45; as Byrd and Hruschka put it, the problem that Kant appears to raise in respect of in rem rights is “how it can be that all others have an obligation to me simply because I unilaterally take possession and claim ownership of an external object of choice”: see B Sharon Byrd & Joachim Hruschka, Kant’s Doctrine of Right: A Commentary (Cambridge University Press, 2010) at 121.

65. Kant, supra note 4 at 46.

66. See ibid at 45; Kant’s discussion on this page is ostensibly directed at all forms of acquired right, though it appears to be particularly concerned with unilaterally acquired property rights.

67. This view may well exclude torts like inducing breach of contract, which Ernest Weinrib has argued can be understood to “extend to the rest of the world the obligation to respect the contract”: see Ernest Weinrib, “Private Law and Public Right” (2011) 61 UTLJ 191 at 204.

68. Kant, supra note 4 at 60.

69. Ibid.

70. See, e.g., Grotius, supra note 1, bk 2 at 6, paras 1, 2.

71. Dedek, supra note 3 at 343.

72. Kant, supra note 4 at 60.

73. For Kant, the “right to a thing is only that right someone has against a person who is in possession of it in common with all others (in the civil condition)”: see Kant, supra note 4 at 50; in at least this one respect, Kant’s account of the difference between the rights acquired under contract and property rights can thus be said to have largely anticipated the one put forward by Hohfeld more than a century later: see Hohfeld, supra note 50 at 718.

74. Hegel, supra note 6 at para 57.

75. Ibid at para 40.

76. This appears to have been what Hegel had in mind when he wrote that “[a] person by distinguishing himself from himself relates himself to another person, and it is only as owners that these two persons really exist for each other”: see ibid at para 40.

77. See, e.g., Marcel Planiol, Traité élémentaire de droit civil, t 1, 11th ed (Paris: Librairie générale de droit & de jurisprudence, 1928) at para 2 (defining the French word “droit” as a faculty granted to a person by the law, which allows said person to accomplish determinate acts such as using a thing for her profit); this same distinction between subjects and objects of rights has more recently been taken up in discussions of animal rights: see, e.g., Richard A Epstein, “Animals as Objects, or Subjects, of Rights” (2002) John M Olin Law & Economics Working Paper No 171 (2nd Series).

78. This conclusion is supported by statements like “what I acquire directly by a contract is not an external thing but rather [another]’s deed”, though Kant makes clear in the same paragraph that the object of a contractual acquisition remains external—that is, that the deed of another constitutes an external object for the purposes of contractual transfer: see Kant, supra note 4 at 59.

79. Hegel, supra note 6 at paras 72-74.

80. As the small print explains, “[a]ttainments, erudition, talents, and so forth are, of course, owned by free mind and are something internal and not external to it, but even so, by expressing them it may embody them in something external and alienate them… and in this way they are put into the category of ‘things’”: see ibid at para 43; the full account of the service contract as an alienation of particularised aspects of one’s personality is found in ibid at para 43.

81. Kant, supra note 4 at 59; this is largely what Dedek appears to mean when he suggests that Kant had been concerned with the problem posed by the necessity of acceptance, which older transfer theories had been unable to explain by reference to the transfer of property alone: see Dedek, supra note 3 at 346.

82. Kant’s solution was to posit the meeting of the wills at the level of the contract—that is, of the in personam obligation to transfer—itself: see Kant, supra note 4 at 59-60.

83. Hegel, supra note 6 at 71.

84. Ibid at 72.

85. Kant, supra note 4 at 59.

86. Hegel, supra note 6 at para 74.

87. Smith’s broader critique of transfer theories is based on the idea that the object purportedly being transferred (e.g., the painting of John’s house next Friday) does not yet exist at the moment that the contract is made; it is clear from these examples that Smith’s objections are based primarily on the issue of “owning” the right to have another perform a service, rather than with the transfer of property rights as traditionally understood: see Smith, supra note 60 at 101-02.

88. Benson, “Contract as Transfer”, supra note 2 at 1723.

89. Benson presents these cases, along with the broader problem of service contracts, as “three different scenarios that might be thought to present problems for the proposed analysis”: see ibid at 1727-28.

90. Ibid at 1729-30; Benson’s views in this respect are interesting to compare with those of Alan Brudner, who, in constructing his own Hegelian theory of contract as an immediate transfer of ownership, is similarly forced to distinguish between the contractual transfer of “value” and the thing that the promisor has actually promised: see Brudner and Nadler, supra note 12 at 128.

91. Indeed, the modern rule is that the promisor must convey title to the promised property or find herself in breach of her promise, by contrast to the Roman law rule that the seller in a contract of sale was only bound to deliver the purchaser free and unimpeded possession: see Zimmermann, supra note 13 at 278.

92. See arts 873, 929 BGB.

93. Kant, supra note 4 at 60.

94. Ibid at 44-45.

95. Ibid at 59.

96. Art 241, para 1 BGB provides that “[b]y virtue of an obligation an oblige is entitled to claim performance from the obligor”; for its part, art 1126 CcF (1804) provided that “[a]ny contract has for its object a thing which one party binds himself to transfer, or which one party binds himself to do or not to do”; see also art 1373, para 1 CCQ, which provides that “[t]he object of an obligation is the prestation that the debtor is bound to render to the creditor and which consists in doing or not doing something”.

97. Inst 3.13.

98. Zimmermann, supra note 13 at 1.

99. Kant, supra note 4 at 60.

100. However, the real contract can impose obligations on the transferee, as Kant appears to recognise when he states that “[t]his contract consists in my saying that I shall send for the thing (the horse) and the seller’s agreeing to it”, adding that “it is not a matter of course that the seller will take charge, at his own risk, of something for another’s use”: see ibid; this view is consistent with the manner in which the real contract was understood to impose obligations on the receiving party in Roman law, as described in Inst 3.14: “[r]eal contracts, or contracts concluded by delivery, are exemplified by loan for consumption, that is to say, loan of such things as are estimated by weight, number, or measure, for instance, wine, oil, corn, coined money, copper, silver, or gold: things in which we transfer our property on condition that the receiver shall transfer to us, at a future time, not the same things, but other things of the same kind and quality”.

101. Kant appears to insist on this distinction when he posits that “I cannot call the performance of something by another’s choice mine if all I can say is that it came into my possession at the same time that he promised it (pactum re initium), but only if I can assert that I am in possession of the other’s choice (to determine him to perform it) even though the time for his performing it is still to come”: see Kant, supra note 4 at 38.

102. Art 929 BGB.

103. Zekoll & Reimann, supra note 10 at 234.

104. Kant, supra note 4 at 60.

105. For sale contracts, these obligations are set out in art 433, para 1 and art 433, para 2 BGB, respectively.

106. Support for such a distinction may be found for example in Hegel’s suggestion that “[t]he identical will which is brought into existence by the contract is only one posited by the parties, and so is only a will shared in common and not an absolutely universal will”: see Hegel, supra note 6 at para 75; it also appears implicit in Hegel’s transition from contract to tort, which is based on the “immediate” relationship between the parties being “explicitly at variance with the universal”: see Hegel, supra note 6 at para 81.

107. See the discussion at 28-29 above; going further still, the distinct existence of something like an in personam obligation between the parties is suggested by the fact that all modern western legal systems recognise some form of parties-only principle relating to the enforcement of contracts, and which serves to distinguish the rights and obligations that exist between them from those enforceable by and against the world at large: see generally David J Ibbetson and Eltjo JH Schrage, “Ius Quaesitum Tertio: A Comparative and Historical Introduction to the Concept of Third Party Contracts” in Eltjo JH Schrage, ed, Ius Quaesitum Tertio (Duncker & Humblot, 2008) 1 at 29-31.

108. As Hegel puts it, “[i]f I then agree to stipulated terms, I am by rights at once bound to carry them out”: see Hegel, supra note 6 at para 79.

109. See art 1138, para 1 CcF (1804); art 1196, para 1 C Civ; both of these provisions distinguish the transfer of property from the obligation undertaken by the parties, while simultaneously setting out the principle that the transfer of property can occur by consent alone—that is, by the effect of the undertaken obligations themselves, without the need for the parties to actively perform.

110. Art 711 CcF (1804), which was then the first article of Book III, similarly provided that “[o]wnership of property is acquired and transmitted by succession, by gift inter vivos or will, and by the effect of obligations”.

111. Hegel is dismissive of the broader distinction between real and executory contracts, arguing that it is based on “not the nature of the relation of the stipulation to performance but only the manner of performance”, and adding that “it is always open to the parties at their discretion to stipulate in any contract that the obligation of one party to perform his side shall not lie in the making of the contract itself as such, but shall arise only from the performance by the other party of his side”: see Hegel, supra note 6 at para 79.

112. Art 1196, para 2 C Civ.

113. Art 1196, para 1 C Civ.

114. Mazeaud et al, supra note 11 at para 1615.

115. Hegel, supra note 6 at para 55.

116. Ibid at para 217.

117. Kant, supra note 4 at 45; that being said, Hegel does argue that “[o]riginal, i.e. direct, titles and means of acquisition (see Paragraphs 54 ff.) are simply discarded in civil society and appear only as isolated accidents or as subordinated factors in property transactions”: see Hegel, supra note 6 at para 217.

118. For Hegel, one does not only have the power to alienate property, but must do so “in order that thereby my will may become objective to me as determinately existent”: see ibid at para 73.

119. See the discussion at 25-26 above.

120. In French law, for example, the automatic transfer of ownership means that the transferee may enforce the contract by means of a vindicatio; this principle has even been extended to the corollary right of vendors to be paid for the transferred property by allowing them to revendicate that property even after it has been shipped, delivered, or even resold—in the latter case transforming into a right to revendicate the amounts received by the purchaser on resale: see Henri Mazeaud et al, Leçons de droit civil, t 3, vol 1, 6th ed by Véronique Ranouil and François Chabas (Montchrestien, 1988) at paras 193, 196.

121. The right to claim damages for breach of contract has been classified as a “secondary”, essentially tort-like obligation by a number of authors: see, e.g., Peter Birks, “Equity in the Modern Law: An Exercise in Taxonomy” (1996) 26 UW Austl L Rev 1 at 10-11; Charlie Webb, “Performance and Compensation: An Analysis of Contract Damages and Contractual Obligation” (2006) 26 Oxford J L Stud 41 at 42-43.

122. Fuller & Perdue, supra note 2 at 53-54.

123. See note 62 above and accompanying text.

124. See most notably art 1142 CcF (1804).

125. Rheinstein, supra note 17 at 625.

126. Newman, Ralph A, Equity and Law: A Comparative Study (Oceana, 1961) at 30.

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