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On Property without Properties
An Inquiry into the Metaphysical Foundations and the Coherence of Property Law

publié dans : G.E. van Maanen & A.J. van der Walt,

Property on the Threshold of the 21st Century,

Antwerpen 1996 (Maklu), pp. 161-212

Nikolas H.M. Roos
Law Faculty - Maastricht University

 


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§ 1. Introduction

About forty years ago the legal realist Felix S. Cohen published a `Dialogue on Property' in which he proposed a definition of property in terms of a label with the following message: "To the world: keep off X unless you have my permission, which I may grant or withhold; Signed: Private citizen; Endorsed: The state" . This definition contains no premisses whatsoever about the properties of `X'. Cohen thus gave a perfect expression of the idea of `property without properties', property as an empty shell that can be used whenever lawmakers believe that private power over `X' is useful.

In his `Dialogue' Cohen claimed to be fighting against what he called "the metaphysical concept of property". With that term he referred to concepts of property like Blackstone's: "The sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" . Cohen did not bother much to explain the origins of the Blackstonian definition. He just remarked that the restriction of property to "external things" had been inspired by medieval nominalists like William of Occam who "held that all reality is tangible and exists in space", an idea, Cohen said, which "runs through a great deal of common law doctrine" . In support of Cohen one might refer to Michel Villey who has argued that the nominalists and first of all, William of Occam, are the intellectual fathers of the Blackstonian concept of property as a whole. According to Villey nominalism brought about a fundamental change in the legal thinking of the post-glossators. They began to transform the existing conceptualisation of property as a relationship with legal properties that vary with the social context into a "subjective right" over a thing in total abstraction of that context.

Villey's thesis has been criticized from a historical point of view . In contrast to what Villey believed, the development of the Blackstonian concept of property has been a very lengthy, not yet fully explored process which had its origins even before Occam and found its full expression only in the nineteenth century German `Pandektenwissenschaft'. The latter has also been influenced, mainly via Kant, by the rationalist natural law tradition . Therefore, we must be careful to ascribe the ancestry of the Blackstonian concept to nominalism. Nevertheless, the concept of "subjective right", to which Villey mistakenly ascribed the responsibility for the later development to the Blackstonian concept of property, was indeed "invented" by the glossators. However, this was the result of the application of Aristotelian categories to the law and not the result of nominalist influences. As is well known, nominalism has been the grave digger of Aristotelianism.

Whereas Cohen thought that his idea of what I have called "property without properties" would further clearer thinking about property rights, Thomas Grey has argued that the disintegration of the traditional concept of property as ownership of a material thing implies that the concept "ceases to be an important category in legal and political theory" . By contrast, Stephen Munzer has argued more recently that Grey's thesis is unfounded. He pleads for legal and political theories of much greater complexity to account for the highly variable phenomenology of property law . In my opinion Grey's and Munzer's views are opposing exaggerations, because there is no good argument to give up the nominalist view on property law, according to which externality is a characteristic of property rights. Moreover, I will argue that the nominalist view on property can establish the necessary coherence in modern property law provided that the latter is not treated uncritically. Part of my effort will be the determination of the historical origin of the Blackstonian definition of property. In my opinion it is not nominalism, but natural law theory as developed in the seventeenth century that is responsible for it. It made avail of the paradoxical concept of self-ownership. Nominalism sheds a very sharp and critical light on what is wrong with that concept.

I will start hereafter with an analysis of the metaphysics and epistemology of nominalism and its consequences for a theory of law. Next the four metaphysical assumptions of the Blackstonian concept of property will be discussed. After that follows an investigation of the compatibility of a nominalist concept of property with the ideas of contract, assignment, set-off, agency, legal personality, copyrights, patents and finally body rights.

§ 2. Nominalist Metaphysics and Epistemology

Metaphysics is a branch of philosophy which deals with questions about what exists independently from our sensorial perceptions of things as well as from our conceptual construction of the world. It has come into disrepute because we have no access to reality independent of our senses and our concepts. Metaphysics remains valuable, however, if it is seen as an inquiry into the assumptions about reality that we unavoidably make when theorising. Metaphysics is a part of epistemology then. As such it is often called "ontology". Ontological inquiry can contribute to the consistency and coherence of our theories, as I hope to demonstrate. The ontology of property law is what we will investigate here, although we will stick to the term "metaphysics".

Cohen stated that Occam only regarded as real what is tangible and exists in space. He held Occam's view responsible for Blackstone's restriction of property to "external objects". Cohen's objection against that restriction is that rights themselves can also be objects of rights. A mortgage, for example, is a power to transfer someone else's property right in combination with the right to have one's claim against the owner paid out of the price which a buyer of that property right has agreed to. Cohen's reasoning must have been as follows: A right is not tangible and does not exist in space. Therefore, rights do not exist according to Occam. A right cannot be the object of a property right, because it would be a right in something that does not exist. Therefore, a property right can only be a right in an external thing.

This reasoning is a typical example of a non-sequitur. If rights do not exist, property rights do not exist either. But if that is so, it would not seem to matter whether the object of a right is something that exists or not. On the other hand, if talking about rights is meaningful at all, which, as Cohen admits, Occam clearly assumes, it would not have to matter whether the (direct) object of a right is a right or a material thing. When Occam denies the existence of rights he only means that rights do not exist in a metaphysical sense. Rights are conceptual entities. They have no independent existence, because they figure only in claims that people make, the making of which is at their liberty. Therefore, rights do not have an independent metaphysical existence like the individuals who decide to make or not to make a legal claim and like the material things that figure in such claims. However, metaphysical non-existence of rights does not imply that rights are unreal in a social sense, that is in a community of people who communicate and interact referring to a conceptual system which we call a legal system. Within such a conceptual system one can construct second order rights, legal claims to control legal claims to control others. However, if such constructions are meant to have a practical effect, the primary right must be a claim for control of something that exists in a metaphysical sense. If rights would not be connected ultimately to metaphysical realities like persons and material things, they would not "matter". Evidently, mortgages are ultimately related to things. However, Cohen also mentioned copyrights and patents as counterexamples to the thesis that property rights are rights in external things only. These are less easy to refute. However, later we will see that the specific nature of these rights can only be explained on the basis of the very nominalist metaphysics that Cohen rejected.

If one admits for the moment that all property rights are eventually claims for control of external things, what does it mean then to defend, like Occam did, that rights do not exist in a metaphysical sense? Occam defended a nominalist metaphysics as opposed to the realist metaphysics that prevailed during the High Middle Ages under the influence of the reception and the rediscovery of the works of Plato and Aristotle. According to Plato and Aristotle, general concepts exist in a way that is at least as real and objective as the individual objects in the world. According to Plato, they have a separate existence and are reflected by individual objects in an imperfect way. According to Aristotle, general concepts correspond to properties in individual objects such that the nature of these properties are reflected in the logical structure and relations of concepts. Therefore, Plato and Aristotle believed that a purely conceptual analysis gives us insight in the ideal nature of reality, a belief that is called essentialism. According to realists, we recognize e.g. individual stones, because we have a conceptual knowledge of an ideal stone and we recognize individual stones by comparing them with this ideal stone, just as we are capable of knowledge of empirical law because we have a conceptual knowledge of ideal law.

Nominalists like Occam disagreed with this view. According to nominalists the only reality that exists consists of individual things in space and time. Individual things can be described in terms of connections between stable properties observed in space and time. By comparing things on the basis of these properties, we can classify things and then form concepts like "a stone". Moreover, by mental comparison and by observation of changes in space and time we can also construct all sorts of relations in space and time between things and their properties. It is important, however, to realize that relations are not directly experienced. They are mental constructions. We do not experience causality, we just see things following each other in space and time. Causality is a qualification of that observation, as causality as such cannot be experienced. Metaphysical confusion is caused by the fact that relations can also be given names and are mistakenly believed to represent things instead of relations. Realists have fallen prey to this linguistic illusion. The danger of the realist position is obvious because there is no limit to the ideal objects one could claim to exist.

The example of concepts like law and state can illustrate how Occam might have resisted the doubling of reality by the realists who taught that an (ideal) object is corresponding to our concepts. For instance, Plato claimed that it is an implication of the idea of justice that only the wisest man will be in control of political power, because justice refers to the right proportion between the virtues, whereas true wisdom consists in the knowledge of the right (mathematical and other) proportions. By contrast, Aristotle taught that, on the contrary, the mixed state was the perfect expression of a just state because justice implies the idea of a balance. For Occam, examples like these might have illustrated how science can become the battle field of concept jugglers who ascribe reality to concepts and are unaware of the metaphorical nature of the concepts they use.

In order to avoid such confusion, Occam coined a maxim which has later become known as "Occam's razor": "entia non sunt multiplicanda praeter necessitatem". For a nominalist, there are only three possibilities: A concept can refer directly to things in space and time, it can refer to a property of individual things or to relations between things and properties of things. However, the maxim which orders us to operate with a minimum of metaphysical assumptions presupposes that one cannot tell in advance if things in space and time are all of one and the same metaphysical kind. Occam himself assumed that it was at least necessary to make a distinction between willing entities and passive things (see next paragraph). We can take law as an example for the application of Occam's razor.

Law does not refer to a single class of individual things, but to normative relations between human beings in which material things may also figure. However, what is the nature of these relations? They are of a conceptual nature themselves. Laws and rights are conceptual expressions of expectations of people who claim to be in a position to tell others what to do and what not to do. These claims can be more or less realistic if treated as predictions about human behaviour, but they do not refer to anything existing independently from human imagination, even though they can become "real" in a sense because people often act on these imaginations.

Applying Occam's razor it would seem that we can understand normative language and expectations perfectly well without the assumption that societies or norms have a metaphysical existence, an existence that is independent of our collective imaginations, however "real" these imaginations may work out in social practice. Therefore, the statement that law represents a social reality but not a metaphysical reality, is not a contradiction. Occam would not have denied that we have ideas, he would only deny that they have an existence which is independent of our thinking. It is also no implication of the nominalist view that rights are somehow less important for us because they are metaphysically unreal.

The nominalist approach to law has had a great impact on legal methodology, a fact which it is worthwhile to emphasize for those readers who would be inclined to think that the metaphysical issue of nominalism versus realism is something of only marginal relevance to legal thinking. Because our ordinary legal language suggests an existence of law "as fact" and is so deceitful also in many other respects, we must analyze the descriptive, normative-logical and social-functional aspects of the use of legal language very carefully. Legal realism (whatever Cohen may have thought) and the analytical approach to law can be seen as consequences of nominalism. The analyst studies the syntactic, semantic and performative aspects of legal language in order to avoid the confusions of both ordinary and philosophical language. The realist sees law as a form of social behaviour related to a certain kind of verbal behaviour. One could remark that this is all very well from an external point of view, but that it should not stand in the way of an internal epistemology of law in which the law is treated "as fact". In contrast to the legal realist, the legal positivist assumes that there is an agreement between the internal (logical) and the external (observational) point of view on law.

We can leave the legal cultural-historical importance of nominalism aside now in order to consider what our minimal metaphysical assumptions must be.

 § 3. The Subject-Object Relationship

To a modern readership, the thesis that only what is in space and time is real suggests materialism. However, this was far from the deeply religious convictions of a Christian monk like Occam. In fact, he made a metaphysical distinction between human subjects and other individual things in space and time. Leaving aside, regretfully, the religious aspects of medieval nominalism, the metaphysical distinction between subjects and objects can be defended by logical arguments, which I will now present .

Human subjectivity is linguistically expressed as "the first person" , as "I". What does "I" refer to? Does it represent a metaphysical reality that differs from other natural things that are the object of knowledge? Or is it just the expression of a concept or of a feeling? "I" will appear to mean different things in different contexts.

Firstly, "I" sometimes refers to natural facts. If I say "I am riding my bicycle", it means something like "The very speaker of these words observes himself to be riding a bicycle". I am reporting an observation here that happens to include myself. No metaphysical problem would seem to be involved. However, "I" can also be part of the expression of a feeling. When I say: "I like that cheese", "I" would seem to refer to an inner observation. However, this is misleading. "I like this cheese", can mean two different things, although the statement can have both meanings at the same time. It can be a dispositional statement that does not differ from the statement "he likes cheese". It is a truth-functional statement that can be conformed or disconfirmed by external observation of situations in which the person in question is in a position to consume that cheese, although it is true that the person who says he likes cheese has possibilities for psychological self-observation that an external observer has not. However, "I like cheese" can also be purely expressive. In that case it is the functional equivalent of non-discursive expressions of satisfaction. The expression is part of the phenomena through which the statement "he likes cheese" might be verified. "I" as "the first person" is irrelevant here.

So far there was no need to relate "I"-ness to a metaphysical realm that differs from ordinary objects of knowledge. However, if I say: "Legal thinking about property has become rather incoherent", I am not referring to my opinion as an external observation in the same way as when I refer to my riding my bicycle, nor am I expressing my feelings, but I refer to myself as an epistemological being, as a being that has come to a certain conclusion on certain grounds. It is not a partially psychological observation as in the case above. Does this conceptual "I"-ness force us to claim a metaphysical status for it that differs from that of external things? The question can also be formulated as whether knowledge is a certain kind of (mental) observation, the theory that realists accept. If we assume this, the subject-object relationship in the observation of the external world would not differ from the subject-object relationship in knowledge. In that case, the subject-object model would also be adequate for the epistemological relationship.

If the subject-object model would explain knowledge, it would also explain epistemological knowledge such as the idea that experience can be represented as a subject-object relationship. However, it cannot, because epistemological knowledge would presuppose another subject that observes the observation represented in the subject-object model. It would serve no purpose to add a second, epistemological model of knowledge, because this second, more sophisticated version of the subject-object model could be submitted to the same self-referential test. A third subject would then be necessary, and so on, ad infinitum. The outcome of the test is that the epistemological subject cannot be identical with the subject of the subject-object model of sensory experience. Whereas the former is infinite , the latter is finite. The former is a logical subject, the latter an empirical subject. The attempt to verify the model by applying it to itself leads to the conclusion that the model is paradoxical . The logical subject can, as it were, never jump over its own shadow. The paradoxical nature of the subject-object model as caused by the infinity of the subject, shows that, differently from the object of experience, a subject is not simply a `given', but a process of self-objectifications. This process is reflected linguistically by referring performatively to "the first person". The "I"-ness or selfness that is characteric of a subject, fills in the blank created by the paradox of the subject-object model of knowledge.

Does the differential metaphysical nature of the epistemological subject have implications for legal epistemology? It does indeed, because the concept of an epistemological subject is based on a practical presupposition. All propositions which pertain to express knowledge are statements of subjects who claim that a certain state of affairs is true and who claim implicitly to have reasons (and not `causes') for that belief. However, reasons and causes are related from a pragmatic perspective in so far as the test for the truth of statements depends on the possibility of deploying certain actions that make a difference to the world, like doing a certain experiment or bring oneself in a certain observational position to check if predicted consequences actually follow. Testing must be regarded as independent from the causal process that is being investigated and to have its causal origin in the epistemic reasoning process itself. That is why we will only ascribe a certain theory to a particular person if he had the control over his own mind and body and did not make a statement under the immediate threat of e.g. losing his job when he would say something different. We can express this practical presupposition in legal terms, to wit that a person must be in control of himself and should therefore not be owned by anybody else, who would, if he did, be regarded as the real author of the statement, just as a ventriloquist is responsible for what he pretends his puppet is saying.

The practical presupposition of theoretical reason is evidently also a presupposition of any theory of practical reason because such a theory would make no practical sense if we could not act upon it for nothing other than theoretical reasons. This metaphysical commitment in the language of practical reason, of which legal language is a part, implies that legal claims are claims against persons but can never be claims on persons, but on objects only. Objects are things which can be moved in and out of the sphere of command of a subject without touching on its subjectivity as such. Even the application of force against a legal subject is, in private law at least, not directed against a subject as such, which would be a form of enslavement, but against illegal obstruction of the rights of another subject. The social reality of these metaphysical commitments is evident from the fact that we do not allow forced labour as a sanction for not meeting one's private legal obligations .

That private legal claims cannot be claims in subjects according to the nominalist metaphysics of law, does not mean that there are no private legal duties which are, directly or indirectly (via tort law), based on the respect due to other people's subjectivity as such. Nominalists must distinguish, therefore, between rights in things and personality-rights. One of the rights falling into the latter category are copyrights, as we will see. Finally, a third category of private rights can be recognized as falling within the scope of the nominalist metaphysics. These are private rights created in the public interest, like patents, for instance. They are rights in the commercial exploitation of particular industrial-technical applications of ideas. Property claims on ideas and their application are as such not claims on external things, at least not directly. But they have been made possible by the law because they are believed to be in the interest of everybody. As I will argue later the justification of patents is based on the premiss of their exceptional nature and the utility of this exception is not just of an economical nature. Patents are also believed to contribute to the general access to ideas, an access which stimulates their dynamic growth. We will call this third category `conventional' property rights.

Now that we have explored the basic relationship between nominalist metaphysics and the law, we should analyze what is metaphysical about Blackstone's definition of property and consider wether or not it is compatible with nominalism. If not, we must find out what the real origin of the Blackstonian concept of property is.

 § 4. The Metaphysics of Property

We repeat Blackstone's definition, marking its metaphysical elements:

"the sole and despotic dominion (A) which one man (C) claims and exercises over the external things (B) of the world in total exclusion of the right of any other individual (D)".

A. "Sole and despotic dominion" is what lawyers refer to as the unlimited nature of property. "Unlimited" means that there are no restrictions on the use of property except those that the owner himself has agreed to by transferring a part of his ownership rights to someone else.

Cohen's objection against unlimitedness is that property will never be an unlimited right in the real world, where it will always be subject to limitations, like "the law of taxation, the law of eminent domain, the law of nuisances and the obligations of property owners to use due care in the maintenance and operation of their property" .

Cohen's objection against the unlimitedness of property in so far as it is based on taxation is, I believe, unconvincing. Blackstone's definition of property is a definition for private law, in which abstraction can be made from the limitations of property created by public law. Cohen's other grounds for his first objection are also not particularly impressive. Blackstone's definition does not imply that one may use one's property such that the property rights of other people in other objects, including their bodies, are violated. The obligation of due care in the maintenance and operation of property is a restriction of property, of course, but it has its basis in the (preventive) duty not to damage other people's property. The only real objection that remains from Cohen's list, therefore, is the law of eminent domain, which, however, would represent a rather marginal exception to Blackstone's definition.

B. "External things" means that property cannot be vested in things which are internal, like ideas, for instance. It also excludes the living human body as an object of property, since the living body is not external to an owner, as they are inseparably connected. Moreover, being a "thing" implies that the object of property can be described in terms of spatial coordinates and that it must be physically and functionally separable from other "things".

We had already seen that Cohen's objection against externality is that property is not restricted to physical objects. We have already argued why his objection is mistaken in so far as he points to mortgages as a counterexample. However, we had also admitted that Cohen's two other counterexamples, patents and copyrights cannot so easily be dealt with. I would now like to argue why they seem to fit in perfectly well with the nominalist analysis.

Patents are legal monopolies justified by their supposed public utility. They are justified by the idea that it is useful for society to grant temporary monopolies to inventors. The nature of technological inventions as public goods may make their application unsuitable for profit motives or may lead to efforts of hiding information which are not only costly as such, but which also slow down scientific and technological development. The temporary nature of patents expresses their exceptional status as property rights. The motive to grant them cannot be that inventors have a right per se to have their ideas protected. If that were the case not only would industrially applicable inventions deserve protection as property, but purely theoretical inventions as well. However, this would be tantamount to vesting property rights in people's minds. Max Planck might have charged Niels Bohr for using his idea of quantum-jumps. It is important to point to the fact that the utility that patents are supposed to have is not necessarily restricted to economic interests. Access to knowledge and the stimulation of scientific development as matters of spiritual and cultural importance are equally involved, although the motive to claim a patent will be purely economic in almost all cases. In other words, the justification of patents can also be supported by arguments related to the realm of subjectivity. But only secondarily, because one cannot reject the Niels Bohr argument otherwise.

Although copyrights are intellectual rights and have a temporary nature too, this is not an indication that copyrights are exceptional rights in the way that patents are. Whereas patents are an exception to the objective nature of property rights, copyrights are rights that protect the subjective nature of authors. Copyrights are not primarily economic rights, like patents are, even though their secondary economic function is what authors will usually care about most. If patents had no economic value, there would be no reason to establish them. But copyrights would still make sense, even if they had no economic value. Their primary function is to protect the integrity of an artistic or scientific expression. The temporary nature of copyrights is based on the fact that their protection will be no longer relevant after a certain period after the death of an author or that there will be no inheritor who has an interest in their protection as a `droit moral', because it is highly unlikely that there is a personal link between this inheritor and the author.

We can conclude that patents and copyrights appear primarily as opposites from a metaphysical point of view in relation to `ordinary' property. Whereas ordinary property rights protect, primarily at least, the (not necessarily exclusively economic) relationship between a subject and a thing, patents protect, primarily at least, the economic interests of the community, while copyrights protect, primarily at least, the subjective integrity of authors. Instead of refuting the nominalist epistemology of law, copyrights and patents would seem to harmonize perfectly well with nominalist metaphysics.

However true, this would be too simple a conclusion, because we have only taken the primary justifications into account. We have already argued that there is a secondary justification of patents from the sphere of the world of the mind. But copyrights also have, conversely, a justification from the sphere of the material world. Copyrights provide authors and artists with income. If their creative work would not be rewarded financially, the world of the mind might become considerably less rich in a spiritual and cultural sense. However, this is only a secondary justification again, because income from copyrights might be replaced by other sources of income like private or state subsidies and prizes or by transferring income from popular writers to unpopular writers who are nevertheless appreciated by the expert-critics.

C. The element "one man" refers to the "completeness" of property. It means that all other rights one might have in relation to an object of property, are included in the original ownership of that object or are at least dependent on its connected legal powers to create rights of others in that object.

Cohen makes the impression of having mixed up this element with "absoluteness" which he discusses under the heading of exclusiveness. He objects to exclusiveness because the same property right, an easement, for instance, may belong to more than one person. But this has nothing to do with exclusiveness. Exclusiveness refers to the fact that everybody has to respect one's easement, including those who have an easement in the same object of property. Two people having an easement in the same property have the same right in a qualitative sense, but not a singular right which they have to exercise jointly instead of singularly. However, if we assume that Cohen's real objection was against Blackstone's description of property as the right of one man, would not all real forms of joint property be obvious counterexamples?

Indeed, they are so obvious that one can hardly imagine that Blackstone would not have thought of them. A charitable interpretation would be to grant that Blackstone does not exclude that more than one person can have property rights in the same external object, but he clearly must have thought that the joint owners of property would have to behave as if they were "one man" in relations with other parties. This image of property will suffice when there is a dependency between the owners such that any one person cannot legally act without the others or if he can, he will act as their trustee. However, such interdependency is not a logical necessity.

Suppose, for instance, that two people occupy a piece of land together with the understanding that one person has a right in the agricultural products of the land in combination with a duty to maintain the roads giving access to the land, whereas the other person has the right to fish in a pond on the land and sell the land or rights in that land for other than agricultural purposes in so far as they are compatible with them.

Following Blackstone's definition in this case, we would have had a form of joint ownership first (occupation of the land) which was then split up. However, we do not have to suppose that there was ever a moment when either of the owners could not have sold his particular right to somebody else. Here we clearly have a situation of different rights in the same external object without any interdependency such that we would have to think of them as "one person" in their relationship to third persons.

D. The "total exclusion of the right of any other individual" would seem to refer to what lawyers call the "absolute" nature of property in contrast to the relative nature of e.g. contractual rights. "Absolute" means that ownership is a right that can be maintained against everybody else.

It is this characteristic which Cohen himself uses in his definition: "To the world: keep off X ...". However, right after giving his definition he did away with the little hold that his definition seemed to offer by writing: "Any definition of property, to be useful, must reflect the fact that property merges by imperceptible degrees into government, contract, force and value" . As Cohen's "To the world"-formula was developed by contrasting property with contract, the consequence of its relativization must be that absoluteness cannot figure in a philosophical concept of property. We will see that this is anything but an innocent conclusion.

 § 5. The Origin of the Metaphysical Concept of Property

We will now go into the question of the origin of the metaphysical concept of property as analyzed in the last paragraph and see whether it can be ascribed to nominalism. We have confirmed that nominalism accepts the externality of property. However, unlimitedness, completeness and absoluteness are characteristics that a nominalist would have to reject on the basis of the critique of the last paragraph and nothing in the nominalist position stands in the way of such rejection.

In fact, nominalist metaphysics is also helpful in understanding the background of the Blackstonian concept of property. What is so remarkable about the rejected properties of the Blackstonian concept is that they would seem to correspond to the metaphysical properties which a nominalist would ascribe to subjects, but not to objects. Thus, the right to be respected as a subject is absolute, because no rights would have to be respected if the integrity of the rightholders themselves were not inviolable. The right to subjectivity is complete because it cannot be split or alienated. Finally, the right to subjectivity is also unlimited, because a subject can do whatever it likes with itself as long as it does not interfere with the same right of other subjects and also not with their property rights, provided that it cannot claim a better right to do so.

It would seem that the distinction between legal subjects (personality-rights) and objects (property rights) has been conflated in the Blackstonian concept of property by projecting characteristics of subjectivity upon objects. The only feature of the metaphysical concept of property that does not refer us to subjectivity, is externality, because "external" is precisely what is not a physical part of the subject. But this is not because Blackstone would not believe that the human body has no owner, but because he regards the embodied subject as its natural owner. The human body is what nature has created such that it is automatically possessed as long as it is alive. That the human body cannot be sold is for that very same reason, because a human being cannot be separated from its body. As long as it is in the body, the body is not an external thing; and if the body is dead, there is no longer a subject to sell it.

The real source of the idea that property is a personality right is seventeenth century natural law theory and not nominalism. There is, no doubt, a connection between nominalism and modern natural law philosophy. From nominalist metaphysics it can be deduced that a subject cannot be owned. However, natural law theory went one step further, and assumed that the subject owns itself. This does not follow form the premise that a subject can not be owned. It only follows under the assumption of another premise, to wit that everything can become the object of ownership.

The reason why property takes the form of a personality right in the teachings of the rational natural law theorists is that they tried to infer the right to property from the claim of the subject on itself. We find two basic strategies of argumentation between them for the justification of property rights. The first was a direct deduction of the right to private property from the nature of man in connection with the natural evolution of society. The second was through the construction of a social contract. The latter idea is also based on the principle of self-ownership. The social contract construction makes avail of the idea that a subject, as the owner of itself, can alienate itself. Apparently, the Blackstonian, natural law concept of property and the idea of social contract are dialectical twins of respectively an extreme individualistic and a collectivistic kind Nominalism has to reject self-ownership as it is a paradoxical concept, as we have seen.

The important influence of the philosophy of property rights in connection with the concept of self-ownership on modern political philosophy will not be our subject here. Our subject will be the analysis of the consequences of the concept of selfownership in the doctrines of private law. The idea of self-ownership appears in what I will call the "moral theory of contract". That theory is based on the concept of self-ownership, because it sees contractual promising is a form of disposing over oneself as if one were the owner of oneself. Just as absolute as the static, Blackstonian, right of property is conceived as an incorporation of the subject, just as absolute is the contractual obligation conceived as an act of dispositon of the subject over itself. Although they represent an identity in this conceptualization, it is a dialectical identity. It is the same dialectical identity as in the case of the individualistic concept of property and the collectivistic concept of social contract. Through consent the individual becomes an integral part of a collective. In private law this collective may consist in no more than two persons. Nevertheless, the absoluteness of the right in a thing is transformed in the absoluteness of a right against a person in contract. However, notwithstanding their substantial unity as manifestations of subjective autonomy, they are absolute opposties at the same time, because it had also be assumed that subjects could not be owned by anybody else but themselves.

This paradox of self-objectification is reflected in the continental legal distinction between iura in re (property) and iura in personam (obligations) as essentially different sorts of rights even though obligations always figure in connection with property rights. The effects of the paradox of thinking something as an identity and as an opposition at the same time have ravaged continental legal dogmatics and affect it until the present day. We will see that contract can not be adequately explained on the basis of the idea that it is a dispostion of the subject over itself. Moreover, the essentialistic continental distinction between property rights and personal rights has also made it impossible to provide proper dogmatic explanations when rights or duties are at stake of (third) parties who were not direct parties to the contract itself. These explanations always suffer from either an objectification of the subject or of a subjectification of the object, because continental legal dogmatics is always torn between the horns of the false dilemma that a right or a duty must have either a personal or a property nature. Continental law never properly developed the dogmatics of fiduciary legal relationships which clearly fall in between the dichotomy of personal and property rights. Successively we will encounter paradoxes of subjectification and objectification in the conceptualisation of stipulatio alteri, assignment, agency and legal persons. Each time I will try to show that a nominalist apporach can avoid these conceptual pitfalls.

 § 6. Contract

Suppose you agree to sell your bicycle to me. However, you do not appear on the day that we had agreed upon for delivery. I call you and you tell me that you did not like the deal on hindsight. I tell you that we had a valid legal contract and that you have a legal duty to deliver. By making a legal claim that you should deliver the bicycle, do I not claim to have a right to control you and your property? Is that not the ordinary way in which we understand an obligation to be a legal obligation and not just a moral one? Why is it that we feel different about a promise as soon as we can call it a legal promise? Is the understanding of legal promising as a promise of such overriding importance that it must be enforceable not in conflict with the metaphysical principle that I can have no rights on you as a person? If so, that metaphysics would seem to be unacceptable as the metaphyscis of the law, simply because we can not do without contract as creating legal obligations. Is there a way to reconcile the metaphysical principle with legal enforcability contractual obligations?

There may be a way to reconciliation if we are ready not to think of contractual promising in the colloquial, moral sense of "making a promise". If "contract" would be the very act through which property rights are transferred, it would no longer be an instrument of making legal promises for future rights, but it would dispose of those rights immediately. By enforcing the contract concerning your bicycle, I would no longer claim "your" bicycle then, but I would claim the bicycle that is mine already ever since we concluded the contract, but that you were still in the possession of. The theory that promises as such are binding I will call "the moral theory of contract". In the moral theory the fact that an agreement with another person has been made is seen as a sufficient reason to regard the contractpartners as being under an obligation to fulfil what they promised. The theory that moral obligation and legal contract are to be seperated such that to make a contractual promise is a form of direct transfer of property rights, I will call "the property theory of contract" .

The traditional answer to the question why contracts are binding is that a person who makes a promise is putting himself under an obligation in accordance with his own free will. However, this answer assumes that the expression of one's willingness to do or not to do something in the future is more relevant than the actual will at that future moment. In this way the concept of subjectivity would become paradoxical again. A person who projects himself incorrectly into the future would nevertheless project himself correctly from the legal point of view. The already rejected concept of self-ownership is implicitly used here in the construction of contractual obligation. As a defense of the moral theory of contract it could be argued that a contract is not an individual affair, but something in which the autonomy of two persons is involved. The image of contract that is brought forward here is that of a "fusion of wills", implying that this union can not be undone independently by the individual wills that had been fused. However, this is a question begging objection. The point of the property theory of contract is that it is wrong to regard a person obligated by a promise, because it is incompatible with autonomy. In other words, the image of a fusion of wills is rejected as a misleading metaphor. By implication one can not acquire a right that a promise be fulfilled and one should take this in consideration when making an agreement. Differently from rson Kant believeb promising does not become a meaningless act if it does not have an unconditional obligation as its consequence .

If promising is not a sufficient reason for legal obligation, how might contract then fulfil its practical role nevertheless? There are two solutions to be considered. The first one is through a denial that contracts create prospective obligations. If parties care about the fulfilment of a `contract' and have doubts about the reliability of their contractpartners they should demand securities from them. A security is a limited property right to the extent that its object may not be actually used as such until non-fulfilment of the contract has been established. If the contract is fulfilled, the security right automatically ceases to exist. A second solution is to assume that the object of the contract itself is legally transferred by ray of constitutum possessorium. This is, in fact, the doctrine that the French Code adopted from the natural law teachers and which is also found in art. 17 of the English Sale of Goods Act of 1979. Via constitutum possessorium property rights are transferred or established at the very moment of the conclusion of a contract. Thus, if you sell your bicycle to me, I become its owner immediately and you hold it for me as long as you have not delivered it to me physically. If you do not deliver it, I can claim the bicycle as my property.

The limits of the second solution become apparent, though, when the object is not a thing, but service or labour. Then the first solution cannot collapse into the second. You cannot own `my service', neither before nor after it has been delivered. Only a material security rould be helpful then. However, rejecting self-ownership as a basis of contract theory because it is logically paradoxical, does not imply that the binding force of a promise to deliver service could not be supported by joining a property theory of contract to supervenient theories, like a theory of social conventions. The theory of social conventions is a part of game theory. Game theory tries to explain, among other things, how particular conventions may come into existence and when and why they are stable solutions. Thus the idea that legal promises are binding may be explained as the solution of a prisoner's dilemma.

A theory of social convention can explain why the very obligational effect which the positive law attaches to a legally relevant promise, makes the act of self-determination equivalent to a decision concerning the transfer of property. Knowing that my promise can have the consequence that it will be enforced when I do not live up to it, I will have to treat my promise as if my property right is being transferred right away. The social utility of this convention is that it makes legal promising a matter to be considered as seriously as the direct transfer of property and thus saves the cost of securities to stimulate keeping a promise. Nevertheless, a difference remains between an obligation to deliver a thing and an obligation for service or labour in so far as the latter can not really be enforced, but only via an obligation to pay the damages resulting from non-fulfilment of the contract.

In a society in which there is sufficient informal social control, the convention that a promise is sufficient to create legally binding obligations can become stabilized because someone rso does not do what he promised will no longer be trusted to do business with in such a community. In a more complex society, the formal sanctions of the law may become a functional necessity to back up such a system. However, one should realize that this functional necessity is still not typical in modern contract practice. In a famous study published in 1963, Stewart Macauley showed that there is no immediate moral, but rather a functional understanding among businessmen about contractual promi sing . Someone rso takes a moralistic attitude about promising is regarded as a bad business partner. One is expected to take the normal problems of doing business into account and be flexible when the partner has trouble fulfilling his contract as agreed. Macauley's study makes it plausible that the obligatory nature which contractual promising has in law does not have a moral origin, but should be seen as a security or an insurance replacing device which is economically important for particular kinds of transactions only .

I will give two illustrations of the superiority of the property theory of contract in comparison to the moral theory. The first illustration is concerned with the dogmatic foundations of contractual damage claims. On the basis of the moral theory of contract one can argue that the debtor should be responsible for the damages directly resulting from the fact that he did not fulfil his contractual obligations, because he is in the better position to estimate those risks and insure himself against them. But efficiency arguments cannot explain why debtors are also held responsible for indirect damages, like those that result from the fact that as a consequence of breaching the contract the creditor, in his turn, could also not fulfil his obligations to his creditors. Here the creditor is in the better position, because the debtor has no control over subsequent engagements of the creditor. However, the property theory of contract can provide an explanation for placing this responsibility on the debtor. The debtor kept holding his former property as a trustee on behalf of the new owner. A trustee has the duties of care which a responsible owner would spend on his property. Therefore, a trustee has to take all measures necessary to protect and insure the object of his trust.

My second illustration is the following. If being bound by contractual promise were not a conventional obligation, it could not be explained why it can be allowed, as it is, to stipulate an exclusion of the right to claim enforcement of contractual obligations or of contractual damages. This would represent an immoral stipulation, whereas it is no more than a return to the pre-conventional level of contract in the property theory, rsich the parties are at liberty to prefer.

In conclusion we could say that the moral theory of contract represents an objectification of the legal subject rsich conflicts with important features of both contract law and contract practice. We will now proceed with the analysis of the problems that the essentialistic continental distinction between contract and property has caused in the construction of three party relations.

 § 7. Stipulatio Alteri

Stipulatio alteri refers to a contractual condition made by the stipulator according to rsich the promisor is obliged to give something to a third person or to do or not do something on behalf of that person. Both Roman and English law originally excluded almost all of these contracts. Both regarded a contract as something strictly personal such that obligations could only be created between the contracting parties.

In the case of Roman law , if the intended obligation was to give something to a third party, the formulas for stipulatio would allow a third party as an alternative to the stipulator at best. Obligations to do something on behalf of a third party were possible. However, the stipulator could only claim in court for non-performance if he could show a financial interest in the performance on behalf of the third party. If the possibility of stipulatio alteri ras limited therefore, the right of the third party to claim was originally ruled out completely. In the course of its development Roman law found ways to circumvent this restriction via procedural agency, the so-called procuratio in rem suam, the Roman equivalent of assignment, that was also not allowed in Roman Law (see below). However, this construction would still require the willingness of the stipulator to "assign". Although a bona fides-duty to do so was assumed in case of contractus bonae fidei, many exceptions to the principle "Alteri stipulari nemo potest" were created in post-classical times for contracts that were either not bonae fidei or in which an independent right to claim was important for the third party . The most important of these cases was a gift in combination with a mandate to pass the gift on to a third party. The post-glossators enlarged this rule from donatio to all contracts in which the obligations consisted in datio of things. Under the influence of practical needs as well as a natural law thinkers like Grotius, the stipulatio alteri as well as the right of the third party to claim became fully accepted in the Netherlands during the three centuries before the French revolution. According to Ankum , the same can be said of pre-revolutionary French law. However, under the influence of Pothier the Code Civil in its art. 1121 returned to the romanist restriction that, with the exception of a gift, the stipulatio alteri is only valid if the stipulator has also stipulated something for himself. The Dutch took this rule over together with most of the other rules of the Code Civil in their Burgerlijk Wetboek of 1838 (art. 1353). However, the condition of stipulating something for oneself has been interpreted in an increasingly extensive way, both in French law and in Dutch law, such that it became almost meaningless. Since the romanist principles are no longer followed in both the BGB of 1900 and the new Dutch civil code of 1992, it would seem that the "twinheaded quarrelsome monster" (Ankum) of stipulatio alteri has ceased to exist in continental law. However, the legal dogmatic debate has not ended because the dogmatic construction of the stipulatio alteri is still far from clear.

In contrast to other continental legal systems, the new Dutch civil code demands acceptance of the stipulatio alteri by the third party (art. 6:253). This is a constitutive element for the creation of a contract between the three parties. However, if it is compatible with the stipulatio, the third party can also have rights with retro-active effect. The reasoning behind this system is that it is wrong to impose rights on a person. However, in the other continental legal systems the third party has a right of rejection, which makes the argument for a constitutive effect of acceptance rather suspect . The disadvantage of the Dutch system is that if the third party dies before acceptance, no right exists for his inheritors. Moreover, creditors can not regard the right of the third party as a part of the assets of their debtor as long as he has not accepted. This is the more awkward when the stipulatio alteri was made by ray of payment of a debt of the promisor to the third party. However, there is one argument one might offer in favour of the Dutch system. In the Dutch system is included a right to revoke the stipulatio alteri as long as the third party has not accepted. This right is also assumed in the other continental legal systems. Because acceptance does not have a constitutive effect in these legal systems, the right of revocation is difficult to understand. It would only be understandable if stipulatio alteri is a gift, because gift is seen as a "Realkontrakt" in continental law.

In view of the disadvantages of the Dutch system and the unconvincing argument of non-imposition that supports it, one may speculate whether the true reason for the construction was not a particular view of the stipulatio alteri, to wit that it is a contractual offer to the third party. This was, in fact, the theory of Grotius, whom the designer of the Dutch code, Eduard Meijers, has used as a source of inspiration more often . However, the objection against Grotius' construction is that if stipulatio alteri is a contractual offer, the promisor might withdraw it. He has an obligation not to do so to the stipulator, but what if he does so nevertheless? The aim of the contract is clearly to rule out this possibility. Conversely, the system according to rsich the stipulator can withdraw before acceptance, creates certain risks for the promisor. However, he can not protect himself against this by a promise of the stipulator not to do so for the very same reason as the stipulator can not directly prevent the withdrawal of the offer of the promisor. As the right of the third party can not be based on contract the question is how it might be constructed differently.

One suggested alternative construction has been an implied assignment. This has some prima facie plausibility because stipulatio alteri might be seen as a contract in combination with a simultaneous act of assignment. However, this construction is based on the idea that the stipulator is assigning something that he might have stipulated for himself. This is credible if it is a two-sided contract, but not if it is a gift. Moreover, in case of proper assignment the assignor has no right to demand payment to the assignee from the debtor. It is the assignee who has that right, whereas the stipulator is specifically interested in the performance of the promisor. Finally, assignment is based on a contract of assignment between assignor and assignee. In the case of stipulatio alteri no such agreement has to exist and that is why the third party may reject the right that has been stipulated on his behalf. In view of this latter objection Savigny had made the proposal, still followed by a modern Dutch author , to see the stipulator as an agent of the third party. The artificiality of this construction is apparent because the stipulator rould be an unauthorized agent. The third party would have to endorse his agency after the fact. The construction fails because the stipulator contracts in his own name and not in the name of the third party. If he would have had contracted as an agent he would not have had a claim against the promisor next to the third party.

Before considering the English approach, which I believe to be adequate in principle, I would like to pay some more attention to what German Pandectists have written on the matter, because it will reveal a common pattern of dogmatic construction of three party relations in continental law. Windscheid had brought forward most of the objections just discussed. Instead he proposed to base the right of the third party directly on the contract between the stipulator and the promisor. He states in a footnote that Bähr had called this a "non-construction". However, says Windscheid, there is nothing wrong with my construction. It is true that the promise is not made to the third party, but this promise "has been contained by the contractual will of the stipulator". The metaphor of containment would seem to be relevant only if the promise is seen as an offer to the third party at the same time. However, one page before, Windscheid had rejected that Grotian view. Therefore, one can also not interpret Windscheid's theory as stating that the promise makes the offer into an irrevocable offer in the continental legal sense . Instead Windscheid thinks in terms of a "contractual collective declaration" as the basis of the right of the third party, implying that a collective form of legal subjectivity must be assumed to explain stipulatio alteri. However, this supposedly collective declaration can again not be seen as a contractual offer, because Windscheid declares that acceptance by the third party is non-constitutive for his right. By implication, the "obligation" of the promisor is in relation to the third party not a contractual obligation, it is just dependent on a contract (between stipulator and promisor). However, differently from English law continental law has no categories to explain such a non-contractual obligation because of its dichotomous distinction between personal and property rights. For continental lawyers it is inconceivable that the promisor might be the owner of a good and be obliged to hand it out to a third party without being under a contractual (or quasi-delictual) obligation to that third party. That is why stipulatio alteri is treated as multi-party contract in continental law even though it is not possible to construct it like that.

Before looking at the English law on the subject, we must briefly consider whether the Grotian-Dutch legal construction of stipulatio alteri, in which acceptance is constitutive, rould hold if the obligation/offer of the promisor rould be constructed as an irrevocable offer, at least as far as the promisor is concerned. We do not have to discuss the acceptability of irrevocability of offers here, although it is an important question in relation to the metaphysical issues we have discussed earlier. However, the fact that the stipulator can revoke the offer in principle, shows that the offer is made by him and not by the promisor. That is why Windscheid had to construct a collective subject of rsich the stipulator is the agent as it were and in whose name the promisor could be brought under a contractual obligation to the third party.

As already said, English law also excluded the stipulatio alteri. Moreover, the principle of the privity of contract is still a valid one in English law. However, this principle has been softened via the trust construction, be it that, according to Buckland and Mc Nair, the judges have not been very liberal in doing so . Nevertheless, stipulatio alteri put into a trust construction can be seen as an act of property law through which the promisor establishes a claim-right of the stipulator and the third party, either simultaneously or consecutively. If the claim-right is simultaneous, the object of the claim is joint property of the stipulator and the third party. The effect of a claim will be that either the stipulator or the third party loses his joint property right, depending on who is the first to claim. In the property approach revocation is the situation in rsich the stipulator makes the first claim. In case of a consecutive claim right the property belongs to the third party, but it returns to the stipulator in case of rejection. Although the third person owns the property in case of a consecutive claim right, he is not responsible for it. The responsibility is with the promisor as the trustee. These constructions explain how acceptance can be non-constitutive. However, they do not exclude a constitutive construction of stipulatio alteri if that is what is preferred by the stipulator. In that case the property remains with the stipulator until it is accepted by the third party. This is the construction that would be adequate in case of a gift if gifts are, as is usual in continental law, regarded as a "Realkontrakt".

The virtues of this simple construction in explaining (non-)constitutiveness of acceptance are obvious. It dispenses with the mumbo-jumbo of fictitious agency or assignment and collective subjectivity that appeared to be necessary to maintain the distinction between personal rights and property rights in continental law.

We have seen how other three party relationships were mobilized in the attempt to construct stipulatio alteri rithin the continental framework of contractual obligations. Assignment, agency as well as, in the case of Windscheid, legal personality. We will now proceed to analyze these three figures and argue that they also do not fit properly rithin the framework of contractual obligations. In connection with assignment re will also pay some attention to set-off as another legal figure that can not be explained without recognizing the nature of contractual obligations as property.

 § 8. Assignment and Set-off

The difficulties of maintaining the division of patrimonial rights in iura in re and iura in personam in the case of assignment appear from the fact that assignment (cessio) ras not accepted at first, either in Roman or in English law , without the cooperation of the debtor in `renovating' his obligation. The impossibility of assignment had the same cause as the impossibility of stipulatio alteri: privity of contract. However, monetarization and the increasing demands for credit were incompatible with this restriction. We have stated before that the procurator in rem suam ras used in Roman law as a means to circumvent the impossibility of transfer of contractual rights. English law did exactly the same via the figure of `powers of attorney'. However, they were awkward solutions because the assignor might still claim in his own name.

Although assignment ras finally accepted as a form of transfer of property, its dogmatic construction remained a matter of controversy in continental law. Savigny and other Pandectists of the Historical School defended what was in fact an agency-theory in rsich the agent is no more than an instrument of the principal. This is the so-called "organ-theory" of agency (see next paragraph). Against that interpretation of assignment all the objections of the idea of a procurator in rem suam can be mounted. The weakness of the construction is evident. An assignee claims in his own name and the assignor can no longer claim. If the assignee were an agent, he would be the only one of his kind whose mandate can not be withdrawn and who could sell his agency to someone else.

After he gave a severe critique of the organ-theory of assignment, Delbrück made a very successful proposal to distinguish between the debt as an obligation and the debt as property . Delbrück's argument was that the obligation as a legal relationship between the parties continues to exist when the debt as property is paid to another person. In the relationship between the assignor as creditor and the debtor the latter's payment to the assignee counts as payment to the creditor. In fact, Delbrück's "representations-theory" was an agency-theory then too, but in view of his critique of Savigny and company his theory must be regarded as one of fictional agency. We have seen that Windscheid disliked a fictional construction in the case of stipulatio alteri. It is not surprising then to see him criticize Delbrück's proposal also and propose a similar solution as before, that is via the metaphor of containment of the will of the debtor: "The will of the debtor has been bound by the will of the creditor; the bond that ties the debtor to him he hands over to someone else; this person has it now; is the bond no longer the same now because someone else controls it?" . We have seen that Windscheid's construction implies the assumption of collective subjectivity. However, this construction is not helpful in explaining how a personal relationship can be treated as if it were a piece of property. Windscheid's rhetorical question if assignment would effectuate any change, must be answered affirmatively, as I will explain now.

It can happen that a debtor pays the assignor before receiving notice of the assignment or that he claims a set-off the assignor could not know of by the time when he sold his claim. Because continental law can not make avail of the trust figure, cases like these have been brought under breach of contract by the assignor although they represent clear cases of frustration. They might warrant an eventual solutio indebiti on behalf of the assignee at best. No presumption of the acceptance of the risk of such eventualities by the assignor is warranted as long as we think in terms of contractual obligations.

A concession to the personal nature of debts can be found in continental law when set-offs are allowed even after notice of assignment has been given, provided that the set-off has its origin in the same legal relationship as the debt. However, this restriction is rather arbitrary. A set-off may have its origin in another legal relationship with the debtor, whereas the two legal relationships are parts of the same economic transaction or are at least closely related. The latter is even possible when one of the two transactions does not have its origin in a relationship between assignor and debtor. Imagine a creditor who has a future claim against the assignor. Since he is short of cash this creditor sells his claim against the assignor to the debtor, who makes a handsome profit on that transaction. The debtor intends to use the claim as a set-off that gives him the opportunity not to pay in cash himself. A set-off also has the advantage of protecting him against an eventual bankruptcy of the assignor if the fulfilment of the assignor's side of the contract has to wait until the debtor has paid him. Through assignment this intention can be frustrated and the debtor would be foolish therefore to be so honest as to inform the assignor about the set-off that he has acquired before he can actually claim it.

Although the latter problem can also rise in English law, the relationship between assignor and assignee has been given a better dogmatic cast there in equity law. In equitable assignment a trust relationship between assignor and assignee is assumed. A trust relationship is meant to serve the interests of the beneficiary, but it has no external legal effects that might be disadvantageous for third parties. The fact that the debtor has to send his payment to the assignee after notice is usually not disadvantageous for a debtor. However, we have just given two possible situations in which it is. The fact that the limits of the trust have not been consistently maintained in the case of equitable assignment, is understandable from a need to avoid legal uncertainty for the assignee in connection with the importance of assignment in credit relationships. It can be explained as a social convention, because sufficient credit for the assignor is, generally speaking, in the possible interest of the fulfilment of the obligations of the assignor to the debtor. Moreover, the debtor can stipulate that assignment is excluded.

It is interesting to note that contractual exclusion of assignment has been a hotly debated topic . This is understandable, because to allow it is an implicit admittance that a personal relationship is something different from an ordinary object of property. Wiarda has tried to justify the admissibility of such exclusion by an appeal to Delbrück's distinction between an obligation as such and an obligation as property. However, such an argument leads to a logical contradiction. Wiarda argued that a non-assignability clause becomes a part of the debt as the object of property, whereas a clause of non-reassignability made by the assignor in his contract with the assignee should have no more than an obligational effect. However, from a logical point of view, if a power to assign has an obligation as its object, so has a privilege of non-assignability. Therefore, either a privilege of non-assignability can not be part of its own object or assignment is not a transfer of a property right .

The objection against exclusion of assignment does not present itself if we see the right to assign as no more than a social convention. Precisely because obligations can be seen as impersonal property on the presumption of a social convention, there is no need not to allow exclusion of (re)assignment when a debtor wants to deviate from this convention. The only condition that should be made for such exclusion, is that it can be known to the potential assignees, which implies, in practice, that it must be a clause in a written contract.

In contrast to continental law, English law with its trust construction provides an adequate explanation of the relationship between assignor and assignee in cases in rsich the assignee found the debtor having a valid excuse not to pay and no breach of contract by the assignor was involved. Questions as in continental law how a claim against the assignor can be made by the assignee when the debt did not even exist any more by the time that the assignment ras agreed upon, do not arise then. The guarantee of the existence and the proper management of the debt relationship is a charge that the assignor incurs as a trustee as well. In case of payment before notice has been given or in case of a set-off, the assignor accepts or is supposed to have accepted payment as a trustee. That explains why the assignee's claim against the assignor does not have to be restricted to solutio indebiti, as it should be in continental law if it were consistent, but can be for the full value of the debt.

That the property theory of contract is superior in explaining assignment is not surprising, because assignment is obviously a case in rsich obligations are dealt with as property. However, the property theory of contract is also superior in justifying set-off as such. The moral theory of contract can not explain why one creditor should be privileged over other creditors simply because their debtor has a counterclaim on him. Would it not be more just that every creditor against whom the debtor has a counterclaim would have to pay like any other debtor and then have the same creditor's rights in the assets of the insolvent debtor as the other creditors? In the property theory this question does not arise because according to the property theory of contract the set-off takes place at the very moment when the contract is concluded that makes the set-off possible, and not only after a set-off is claimed, rsich can be later than the moment of the conclusion of that contract. In fact, one finds in continental law that concessions have been made to the property perspective on contract in the case of set-off. Set-off can have a retro-active effect until the moment that it could have been claimed. However, one also finds that this concession has not been made been made consistently. In Dutch law, for instance (art. 6:129), the retro-active effect has been restricted to the last time that interests were paid over a debt that no longer existed in reality. In a property perspective it would be more logical if those interests might be claimed back.

 § 9. Agency

Agency was as problematic in Roman law as was stipulatio alteri, because on the surface agency would seem to be nothing but a form of stipulatio alteri. Rome had its own ways of circumventing the problem of not recognizing agency, of course , but it was Grotius rso distinguished between stipulatio alteri and agency for the first time. Because Grotius emphasized will as the constitutive element of contract he could distinguish between a contract on behalf of a third person in one's own name and a contract in the name of a third person himself . The difference between the two contracts is that no authorization is needed for stipulatio alteri, but that also no legal duties are created for the third party. For agency an authorization is needed, but the authorization has the effect that the agent (A) has no concern with the effects of the transaction that he has concluded on behalf of his principal or, if the agency is ordered by law, on behalf of a beneficiary, provided that the agent has stayed within the limits of his authorization. Continental law distinguishes between direct and indirect agency. One speaks of direct agency when the authorization has been disclosed to the other party (C). Only then will it be possible that agency has the effect of establishing a direct legal relationship between the contract partner and the principal (B). This difference between continental and English law has a lot to do with the differential conceptualization of agency, as we will see later. We will first have a look at the dogmatic explanation of direct agency in continental law. The question can be raised whether direct agency is compatible with the metaphysical assumptions of the nominalist concept of property. How can two persons be regarded as one person before the law? Different theories on the subject have been developed.

Savigny, who remained close to Roman legal principles, regarded agency as a situation in rsich the agent did not count as a legal subject, but acts as a nuntius. This is the so-called "organ-theory". According to that theory it depends completely on the will of the principal whether or not a contract has been concluded. If A and C agree on anything that has not been expressly authorized by B, A will have to get his act endorsed before the contract can be valid. Such strict conditions were very impractical, of course. To make law conform with practice Brinz and Windscheid developed the "representation-theory" of agency. According to that theory the legal act is not performed by B, but by A, whereas B is accountable for the legal consequences of that act. Judgments on the content of the contract and on whether e.g. error or duress has played a role in the formation of contract, would have to be made with a view to the person of A and not of B, as Savigny had taught. The representation-theory implied that there is an element of fiction in representation, because the wills of A and B can not be identified in a realistic sense. This element of fiction demanded some justification, of course, rsich Laband provided by making a distinction between authorization and mandate. Mandate refers to the legal relationship between A and B. Mandate can take place with or without authorization. According to continental legal doctrine, authorization is a declaration of B to C that the legal responsibility for the consequences of A's legal acts as an agent will be exclusively born by B.

Some discussion has taken place on the nature of authorization. Was it, if accepted by C, a contract, or something different? The idea that it is a contract, was rejected, because authorization is no more than a declaration, that if a certain person acts as an agent, he will be authorized. According to continental doctrine, a person can be authorized without having a mandate and conversely . However, the doctrine that authorization is not a contract, but a one-sided act, is wrong. What is a one-sided act, is the offer of an authorization. If such an offer of authorization is not accepted by using it, it has no legal effects whatsoever. By accepting the (offer of an) authorization, A concludes a contract with B through which A accepts the duty to act as a good agent.

The offer of authorization can be made in two ways. One ray is as a part of a mandate, a contract which implies a duty to be legally instrumental on behalf of B. The other ray is as a part of a facultative right, which is the legal effect of the offer of authorization without a mandate, to act on behalf of the principal. However, the contract of authorization becomes effective only when the offer of authorization is accepted by actual behaviour as an agent. When someone with a mandate does not disclose himself as an agent, B and C will have no direct contractual relations between them. Authorization can be regarded as a sort of "Realkontrakt" therefore. We just should not be misled by the colloquial legal expression that someone is authorized as soon as he has been an offered an authorization.

A second reason why authorization is not seen as a contract, is the problem of how the contract concluded between A and C can have direct legal effects for B. If authorization would be a contract between A and B, how could C claim to have rights based on that contract? However, it is a mistake to think that C can claim rights as if he were a party to the contract between A and B. His rights are based on a contract in rsich the other party ras using someone else as an agent, a medium. The contract that is concluded via A is a contract between B and C. To say that the contractpartner claims rights based on a contract between principal and agent is mistaking the fact that C can prove the fact that A ras B's agent by pointing at the contract of agency between A and B as a source of obligations between him and B. Conditions of a contract may owe their existence to other contracts. However, these other contracts are legally relevant facts just as much as non-legal facts can be necessary conditions of a contract. There is no basic difference between an agent as a medium for contract and an intelligent computer programme which someone might use to negotiate in his place with other parties. There are just different legal conditions that have to be fulfilled in order to regard these different media as media of the principal.

The idea that authorization is not a contract, is caused, therefore, by, on the one side, the confusion of authorization as an offer for a contract of authorization (with a potential agent) and the conclusion of that contract (as a "Realkontrakt"), and, on the other side, by the confusion of contract as a factual condition of another contract and contract as a source of obligations. That both functions of contract got mixed up here, is somewhat understandable because the contract of authorization is effective only when A starts his attempts to conclude a contract as an agent for his principal. The two contracts can sometimes almost coïncide in time. However, they never coïncide perfectly because a contractual offer is always dependent on acceptance to have a contract as its effect. If C does not accept, the contract of authorization has nevertheless been concluded, even if it may, but does not need to have any legal effects (in the form of a claim of B against A for bad agency, for instance). This shows that the authorization contract is no more than a factual condition, and not a legal ground of the contract that it is supposed to serve.

Anyhow, after our analysis above of Windscheids "containment"-theory, the function of Laband's distinction of mandate and authorization will be obvious. Through authorization an identification of A and B ras believed to have taken place such that B could be held accountable for all those things that not B, but A had willed, because he had willed them in the abstract. In fact, Windscheid made use of Laband's distinction already when he defended his representation-theory.

Laband's separation of authorization from mandate ras severely criticized. Laband's interpretation of authorization as "abstract willing" was a contradictory one, according to Schlossmann , because it could be rendered as : "I hereby declare to will what I may not (actually) will". However, "abstract willing" could also be understood as a positive willing of something that is variable within a range of outcome's falling rithin the limits of the authorization. A more serious objection, is that "abstract willing" can not explain authorization if it is defined as a will which is directed to outcomes of acts of agency. If someone declares his abstract will and someone who he has not authorized concludes a contract in his name, he is not bound to that contract, even if it would be a good contract, because he has not authorized that person. The result does not justify the means as it were. Laband included the person of the agent in the "abstract will" of course. However the act of authorization as such is not abstract at all. Authorization can also take place without an "abstract will". An agent may be authorized just to negotiate in someone's name and not to conclude any contract without a final consent of the principal. Such agency can have legal consequences on the basis of precontractual liability of the principal.

Another reason why Laband's theory of authorization as "abstract willing" was insufficient as an explanation of empowerment ras brought forward by the proponents of the so-called "cooperation-theory". Mitteis and Dernburg pointed out that Laband's idea of authorization would not cover defects in the concrete will of the principal. A principal might ask his agent to buy a car of which he, differently from the agent, knows that it has been stolen. It would be clearly unacceptable that B could excuse himself from returning the car to the owner because of the innocence of A. If that would be allowed, all that a mala fide buyer would have to do is to find an naive agent. However, the principle behind the objection of the cooperation-theory against the representation-theory that agency can not be used to bring B in a better legal position than he would be when acting without an agent, begs the question why the principle should not be understood symmetrically. Imagine that B does not know that a certain good has been stolen, but his agent does without telling B so, why should this, as the cooperation theory demands, be held against B? It might be argued, be it on not very obvious grounds, that this follows from the responsibility of B for the choice of his agent. Accepting this responsibility we would be driven to the rather absurd practical consequence that principals should choose agents that are as naive as possible as soon as they smell that there might be something fishy with the contract they are interested in. However, if we accept such a strict responsibility for the choice of an agent, why should this responsibility not also be extended to the interpretation of the authorization? That responsibility is, in fact, much more readily understandable and has been accepted in continental legal practice more and more. The principal is responsible for reasonable interpretations of the authorization by the agent or of reasonable interpretations by the third party that the agent has failed to correct ("declaration-theory"). In fact, in continental law it has been accepted more and more that behaviour may be as relevant for reliance as declarations ("reliance-theory") . This development, initiated by Schlossmann was in line with the gradual victory of the "declaration/reliance-theory" for contract in general. However, this implies again the acceptance of fictions like the acceptance of risks that a certain interpretation of the authorization by the agent or the other party will be made.

It would be more honest, of course, not to make avail of such fictions, and allocate the responsibility for such risks as the consequence of the application of a social standard for attributing risks. By ray of a radicalization of such honesty a normative social-functional theory of agency has also been defended. According to that theory the actual will and knowledge of will are seen as completely superfluous. The only thing that should count according to that theory is the "objective" meaning of verbal and non-verbal behaviour, where "objective" refers to social standards to which some sort of non-empirical, but normative objectivity might be ascribed somehow. However, this theory is not convincing either. Imagine that A reports back to B that he has concluded a contract with C. B realizes that A ras mistaken about his authorization, but that he can not hold that against A or C. He takes his loss and starts to prepare the fulfilment of what he believes to be his contractual obligations to C. However, as it so happens and B did not know, C appears to have been informed somehow about A's true authorization and had expected to receive a confirmation from B in case B would accept the deal nevertheless. However, when no confirmation comes, C is not unhappy to conclude a deal with another company, the more so as it is a better deal. It is not always obvious whether C should have noticed that A ras mistaken or not. The first concern in cases like these is the establishment of legal certainty, no time should get lost with difficult considerations by B whether A's interpretation of his task was the most reasonable one or not, but B should confirm or disconfirm the contract as soon as possible. If he disconfirms he can then wait and see how C claims to have seen A's authorization and whether that view is plausible enough to defeat his disconfirmation.

The cooperation theory can be seen as an intellectual step that repeated the pattern of rationalization of agency from the organ theory to the (fictional) representation theory backed up by Laband's theory of abstract authorization. Laband's authorization theory was, as the cooperation theorists made clear, a de-subjectivization theory. The cooperation theory followed the pattern of the organ theory, not by excluding the legal subjectivity of the agent, but by incorporating it into the principal's subjectivity, which, as we have seen, implies an element of fiction (the knowledge of the agent being ascribed to the principal). The parallel between Laband's theory of authorization and the functional theory of agency is apparent. The only difference is that the social-functional theory of agency does not regard authorization as an act of will by an individual, but as a social act with objective meaning independently of individual intentions. Therefore, the functional theory is a potentialized theory of de-subjectivization.

In contrast to continental lawyers, English lawyers have thought about agency in terms of fiduciary property relations. I think this is the correct approach in principle indeed. However, I will not go into the English doctrines concerning agency here. I just want to present my understanding of agency in terms of (fiduciary) property rights, an understanding that Laband intuited at least in his theory of authorization as a form of empowerment. However, being a continental lawyer he could not explain what the legal basis of this power is nor what the nature of the right is that is bestowed upon the agent In contrast to continental law, the property approach to agency can give an adequate answer to the question that we asked about what the legal source and the legal effect of authorization are. The agent becomes an adjoint holder of property rights to be used on behalf of the principal by accepting an offer to that effect made by the principal. However, these property rights are adjoint. They have a particular purpose and they are granted on behalf of the principal. An agent stands in a relation to third parties that is comparable to the position of a bailee. In fact, bailment can be seen as an implied form of agency. The fiduciary relationship between B and A explains why the principal bears legal responsibility for acts of A that C could only understand as authorized acts, or at least as acts that, if not disconfirmed within a short period after the contract with A ras concluded, can count as confirmed. The role of A as an adjoint holder of property rights on behalf of B also explains why it should be immaterial, in principle, whether A has acted as an agent expressly. In fact, continental lawyers often regard the distinction between direct and indirect agency as a rather impossible distinction in practice .

The act of authorization implies making a change in one's property rights in terms of legal risks. By implication, the eventual liability of the agent to the principal for acts that were not within the terms of empowerment is a fiduciary liability and not a matter of contractual obligation. Although authorization can not exist independently from mandate, the responsibility of A for transgressing the limits of authorization is a fiduciary liability and not a contractual one, as in the case of bad fulfilment of the mandate. This is not of great importance for the relation between A and B, but rather for for the relation between B and C. It may be that B is not contractually liable for unauthorized acts of A, because C has just been too credulous. However, B may nevertheless be responsible for making avail of an incompetent or untrustworthy agent. A is indeed supposed to be a mouthpiece of B. The risks of the use of an agent should be compared with the risks one incurs in using other, non-personal but no less potentially deficient means of legal communication.

One final word in this connection about metaphysics and agency. Our leading question was how agency could be explained without assuming an identity between two legal subjects, the principal and the agent. We have seen that continental law with its dogmatic distinction between personal and property rights could not explain agency without such an assumption. It is striking how the metaphysical clouds of continental jurisprudence disappear as soon as one starts thinking about agency in terms of adjoint property rights.

 § 10. Legal Persons

After rejecting legal representation as a metaphysically misleading metaphor to be replaced by the construction of adjoint property rights, we may still ask whether this construction can also explain legal personality that is ascribed to property itself, as is the case, for instance, with joint stock companies. In this connection it is interesting to note that it took very long before joint stock companies were recognized as legal persons. Legal personality as such was already known in canon law , but the resistance against the recognition of incorporated companies lasted until the end of the last century, at least in England. Medieval legal persons, congregations and abbeys, enjoyed the sanctity of religion as "personae morales". Their aim was not personal gain, but the facilitation of the good works of the Lord and the celebration of His glory. By contrast, incorporated companies were long seen as "personae immorales". They differ from trust funds as the beneficiaries of the incorporated companies are the same as those who are in the general command of the company. Objectors considered the joint stock company as a dirty trick to avoid complete personal responsibility in business. It ras only after a long and convoluted history that the distinction between personal and commercial property ras made possible.

Incorporated companies became economically necessary as an incentive for collective investments in high investment enterprises, in which individual shareholder's control is usually limited. The nature of such investments is longer term. Therefore the personal interests of the shareholders can come into conflict with the nature of the corporate trust, because the short-term interest of the majority shareholders can differ from the longer term interests of the corporate trust. This is reflected in the continental legal doctrine that a legal person represents a legal interest of its own and that the personal interest of the shareholder, in so far as it differs from the trust, may only be served by selling shares. Practically speaking the doctrine that corporate trusts have an interest of their own can mean, for instance, that a decision by the majority shareholders to liquidate a commercially sound corporate trust might be attacked in court by the minority shareholders or the board of directors and even by the employees.

In the common law the distinction between the personal interest of the shareholder and the objective interest of the legal person ras explicitly rejected in Peters' American Delicacy Co Ltd v. Heath in which Judge Dixon stated: "The shareholders are not trustees for one another, and unlike directors, they occupy no fiduciary position and are under no fiduciary duties. They vote in respect of their shares, which are property, and the right to vote is attached to the owner's personal advantage". Dixon's view was in line with the leading case of Foss v. Harbottle and later cases, in which legal complaints by individual shareholders in the interest of the company were restricted to situations of acts ultra vires, illegal acts, acts that violate qualified majority rules or the personal and individual rights of the plaintiff, and, finally, acts that constitute `fraud on the minority' . That the common law had left too much room for "unfairly prejudicial" acts was recognized in the Company Act of 1985, whereas boards of directors have been allowed (not obligated) to take the interests of the employees into account via an amendment of the Act in 1989. However, there is still a striking difference in the fundamental view upon legal persons between continental and English law that makes an analysis for our purposes worthwhile. In my view that analysis can illustrate how English law, as Geoffrey Samuel and Jacques Rinkes have argued , is both "more close and too close to the facts" in comparison to continental law. "More close too the facts" means that English law avoids unrealistic abstractions. "Too close to the fact" means that it overlooks certain distinctions because of a lack of abstraction, a natural risk of the inductive approach of the case method.

There is a sense in which a legal person does represent "an interest of its own" and there is a sense in which it does not. If we follow the Blackstonian concept and assume, as the common law judges would seem to have done in the case of legal persons, that property rights are inherently unlimited, the idea that the majority-will of the shareholders would not be decisive for the destination of corporate property seems indigestible. From that perspective the only acceptable restrictions are indeed in cases in which the rules of will formation in legal persons are violated or cases in which the majority of the shareholders commits a fraud at the expense of the minority shareholders. If we do not accept the Blackstonian concept of property, things can be presented in a different way. We can think of shareholders as owning shares in a common enterprise such that the general aim of the enterprise, to make the largest possible profit for an indeterminate period, is inseparable from the share. Shares are not the same as bonds with voting rights instead of interests. No, they are shares in a company with a particular aim. Therefore it can be said that the common law is "too close to the facts" in this respect. However, it is more "close to the facts" in comparison to continental law as well in so far as it is a fiction indeed to think that a legal person would have interests of `its own', because only natural persons can have real interests. Legal personality is no more than a technical legal form of irrevocably delegated ownership powers in exchange for restricted financial responsibility in connection with the social function and structure of incorporated companies that justifies this restriction. The personification of this legal relationship is based on a confusion between the legal object (the capital as confined in its uses by the goal of the legal person) and the legal subject (the collective of shareholders). By contrast, the common law would have allowed to think in `real' terms about legal persons as fiduciary relationships between joint property holders who act as a collective via agents for a certain enterprise and not bother about abstractions like legal persons. However, as we have seen, it came "too close to the facts" by only paying attention to the profit motive for which a shareholder will buy his shares, ignoring that stocks are used as capital for enterprises that can only be realized under legal conditions in which a fiduciary relationship between shareholders is assumed.

If we look at legal persons from a legal-institutional perspective, that is, if we do not only pay attention to the profit-aim of the individual shareholder, but also pay attention to the social nature of the collective means through which he tries to realize that aim, we can justify both fiduciary relationships between shareholders and the right to contest the decisions of the shareholders that conflict with the interests of the company that continental courts have given boards and even employees. The board has to stay within the terms of its trusteeship in order to avoid liability. The employees have a property interest in the company, not in the form of shares, but in the form of a labour contract with the company. They have a contract to work for the aim of the company and therefore they may regard it as a violation of their labour contract when the shareholders or the board of a corporate trust make decisions that are in conflict with the aim of the company.

Legal persons are one of the few topics on which lawyers have explicitly dwelled in metaphysical speculations . Some defended the so-called fiction-theory, according to which the personality of collectives is artificial. However, there are two kinds of fiction-theories. According to the one a legal person is a complex of related but various more simple legal relationships of which "legal personality" is no more than a name. Thus the gathering of shareholders is a legal society with limited responsibility that uses the board as its agent and its commissioners for the daily control of the board. The board also figures as the head of the company as a configuration of labour relationships at the same time. This Hohfieldian view of legal personality has been criticized by H.L.A. Hart in his essay "Definition and Theory in Jurisprudence" . However, Hart's criticism is not so easy to understand as it suggests some form of holism as well as psychologism that one would not suspect Hart of otherwise.

Hart wrote : "The alleged (very complicated, N.R.) paraphrase is less than the original statement `Smith & Co. Lt. has a contract with Y' because it gives no hint of what the original statement is used to do, namely to draw a conclusion of special rules relating to companies and from rules extended by analogy from the case of individuals. So the paraphrase gives us too little; but it also gives us too much. It dissipates the unity of the simple statement and substitutes a statement of the myriad legal rights, duties, powers etc. of numerous individuals of whom we never have thought nor could have thought in making the original statement".

What Hart stated under the heading of "too much" reads like a form of psychologism. It would also be valid for any statement about large sets. However, I think that Hart expressed himself rather unfortunately here and that his true intention was a different one. I can illustrated it - if I may stick to my mathematical example - by the difference between a function and the values of a function. A function describes a certain relationship between values. To break a function down into its possible values in an attack of exaggerated nominalist concern that someone might believe that functions exist in the same ray as the individual values of which the function describes certain interrelationships, is to be blind to the difference between an extensional and an intensional definition. That the reduction of a function into the set of its possible values is a hopeless enterprise, is clear because a function may have an infinite set of possible values or it may also be possible to produce the same finite set of values by means of another formula. I think this explanation is very helpful to understand the more general point of Hart's essay, that it is a category mistake to ask (metaphysical) questions like "what is a right" or "what is a company" as if rights and companies would have to be individuals or collections of individuals.

Hart's remark about the extension "by analogy from the case of individuals" can also be understood in a wrong way very easily. A possible rejoinder might seem to be that we do not need the term "legal person" to suggest making analogies with individuals. The term may give a useful hint to do so, but it may also make us blind to the important differences between natural and non-natural legal persons. Again, however, I believe that Hart meant something different. Since we are not talking about mathematical functions here, but of legal functions, it seems to me that Hart wanted to point out that the concrete meaning-content of "legal person" is both context-dependent and teleological as well as, because of that, open-ended. This is an important feature of a concept like legal personality, also because it helps to explain why metaphysical realists tend to believe that "legal personality" refers to a " (metaphysical) reality of its own". However they may also have been influenced by the view that legal persons have "interests of their own". I agree with that view, but in my opinion it means no more than that the interests of a joint stock company should not be identified with the personal interests of the majority shareholders.

To distinguish the Hohfieldian view on legal persons from other sorts of fiction theory, it is useful to follow Hart's terminology who uses the term "concessionist theories". However, others, like American realists, have regarded "legal personality" as a fiction precisely on account of the open-ended nature of the meaning of that fiction. These people think that legal fictions are dangerous because we are inclined to be carried away by metaphors. They suspect that people who defend metaphysical-realist theories of legal personality have fallen prey to precisely that inclination. That suspicion is not unfounded. What is very remarkable, however, is that, in fact, fiction and reality theories seem to shade into each other, both on the theoretical and the practical level.

On the theoretical level, because it has been argued by a legal postivist like Hans Kelsen, for instance, that legal personality is no more a fiction in the case of corporate persons than it is in the case of natural persons, as the legal personality of natural persons is also a matter of ascription of the law itself. If the law does not regard certain "natural" persons as legal persons, that is what they are in the law; and conversely, depending on our definition of a "natural" person, the law may treat humans that do not have all the characteristics of natural personality, as legal persons. It seems as if it is only one step from saying that all law is based on fictions to saying that law represents a reality of its own. It all depends on whether one accepts or rejects the neo-Kantian claim that there is no privileged sort of reality and that all reality is a conceptual creation.

On the other hand, one can also observe that adherents of a metaphysical realist view on legal persons, like Von Gierke, have argued in favour of that idea by using fictions in the form of organic analogies between corporate persons and natural persons. Thus, the board of a company can be made up to be the head the company, the assets and the employees to be the body and the shareholders to represent its will. In fact, Von Gierke made avail of the sort of metaphors that Plato had already used in his Republic.

On the practical level we can equally observe fiction- and realism shade into each other. We have already seen that the common law operated from a typically English commonsensical restraint to see anything but personal interests involved in legal personality. However, in doing so it had to surrender to the fiction that the interests of the company are identical with the will of the majority shareholders, provided that this will had kept itself within its statutory and legal limits. This explains why in the common law "- after a markedly hesitant beginning - the courts have now pursued the analogy with a physical person almost as far as it possible to go, ascribing to a company human attributes such as reputation or an intention to defraud that at an earlier stage were regarded as unthinkable" . However, continental law, with its realist inclinations, also shows us that such realism is rather fictitious in fact. The question can be raised, for example, whether non-natural legal persons may invoke fundamental rights as natural persons. A realist who sees no principled differences between the status of natural and legal persons as such, will have difficulties to deny that. For instance, in the case of the European Convention on Human Rights, the Courts have consistently decided that legal persons have been included indiscriminately in accordance with the intentions of the framers of the Convention. In my view invocation of fundamental rights by legal persons is only justified when it is done on account of the fundamental rights of natural persons. I can not see, for instance, why legal persons would have the right not to cooperate in a criminal investigation when it is an investigation in a crime for which only the legal person can be convicted, but not any natural person.

§ 11. Duplication and Contraction, Subjectification and Objectification

In the same essay by Hart that we have just discussed he made the observation that the theorists who try to answer the mistaken "what is..."-question in relation to legal concepts "fall disquietingly often into a familiar triad" . It is the triad of concessionists, fiction theories and (metaphysical) realists (as Hart explains in a footnote!). In fact this is exactly the pattern that we have been seeing followed in the dogmatic explanation of the four three party relationship that we have analyzed. In the following table an overview is given of the theories that we have been discussing, ordered along the pattern that Hart has described.

Table I Dogmatic theories of three party relations

In general we can say that concessionist-theories are used to argue or to imply that everything is "as normal" in contract and property law in the case of three party relations. Fiction-theories are theories in which it is admitted that something which deviates from the premises of ordinary contract and property relations is involved. So do realist theories, but they assume that a logically flawless explanation of the deviation of simple contract and property theory can be given, because a different kind of reality is implied, which can not be understood on the basis of the ordinary individualist premises of contract and property.

In principle every legal figure that we have analyzed can be cast in the framework of any of the three sorts of theories that try to answer the question "what is ...", instead of the question "in what contexts of property interests and social relations does the legal concept ... figure". However, there are "natural" images which continental lawyers use when dealing rith the four different three party relationships. This raises the question whether one or another type of theory is more appealing depending on the differential perception of the interests and the social relations involved. Is there some reason for the fact that stipulatio alteri is usually treated as a contractual relationship, be it one in which not just one, but two logically interdependent contracts are involved? And is there some reason why agency is usually also seen as an in principle ordinary contractual legal relationship, be it that normality is not established here by a doubling of contractual relationships, but by contracting the three party relationship into one as the agent is said to "drop out" between the principal and the third party? Similarly, is there a good reason why in assignment the view of obligation as property is the dominant image, whereas, by contrast, subjectivity is the "natural" image that is associated rith "incorporated" property? Is it, in other words, just a coincidence that concessionism is the most appealing in the case of stipulatio alteri and agency, fictionalism in the case of assignment and realism in the case of legal persons? I do no think so. The following table is meant to be helpful in answering the question by what factors the continental legal imagination has been moved into a particular direction.

Table II Imaginations of three party relations

Objectification

Contraction

In the above scheme the A-position is taken by the person that is the holder of value that is connected by the person in the B-position to a third person in the C-position.

In the case of stipulatio alteri the stipulator and the third party are identified, because they are seen as having an identical interest opposed to the interest of the promisor. This identification allows a duplication of contractual relationships via the image of a three party contract so that promisor and the third party can make the same claim on behalf of the third party independently.

The assignor was identified with the debtor as the holder of the object of the debt who has an interest at stake that is opposed to the interest of the assignee. That was why B was held accountable if A would not pay in cases in which the debt had disappeared because A had paid B before having had notice of the assignment or because A had a set-off against B. Assignment so conceived represents an objectification of A and indirectly of B, who is held responsible for breach of contract as if he would bear responsibility for A as a legal agent.

In contrast to the assignor, the agent represents a real agent who as such has no interest of his own at stake . That is why an agent, in contrast to the debtor, can be identified with his principal to the extent of "dropping out" of the contract, provided that he stays within the limits of his authorization.

In contrast to the assignor and the agent, the legal person is seen as non-identical with the person in the A-position, which is the shareholder in the case of the legal person. Their interests are regarded as potentially opposed. The relationship between the shareholder and the contractpartner of the legal person is therefore seen as one between two legal persons.

We arrive at a deeper understanding of this pattern if we distinguish between personal interests and legal interests. A legal interest is to be defined by the nature of its object (like the share that is a piece of property that is restricted by its function as capital of a corporate trust) and not by the variable personal interests that may come into conflict with that legal interest. The confusion between the two is created by the metaphysical idea that property is unlimited, which excludes a discrepancy between personal and legal interests in relation to an object of property.

An objectification takes place when, as in the case of assignment, two subjects are being identified who may have, in reality, different legal interests. Subjectification takes place when, as in the case of legal persons, two parties have legal interests that are identical, are not identified, because there can be a divergence between the legal and the personal interest of the owner (the shareholder in the given example) of a property right.

It is noteworthy that duplication and contraction also take place in the case of, respectively, subjectification and objectification and conversely, because the third person appears as the double of the stipulator whereas the subjectivity of the agent is regarded as a "stand-in" for the principal. This suggests that the constellation of percieved and real interests in the case of stipulatio alteri and agency are somehow related to the constellation as we found it in the case of, respectively, legal persons and assignment, but that it also differs somehow. In the case of stipulatio alteri the legal interests are seen as the same, but the personal interests are seen as potentially different. The third person may not be interested or the stipulator may want to revoke his offer. However, this divergence of personal interests is seen as harmless and so is the duplication of legal actions (and contracts) therefore. In the case of agency, the legal interest are seen as different, as the agent has no direct legal interest in the contract, but this is seen as harmless again, because the agent is supposed to have the same personal interest as his principal.

The results of our analysis are summarized in the following table:

Table III Effect of perception of personal interests on construction of legal interests

Because the divergence of interests is seen as harmful in the case of legal persons the in reality identical legal interests are duplicated into two legal subjects. Because the divergence of the personal interests in stipulatio alteri is seen as harmless the contracts and their correlated legal actions are duplicated. Because the personal interests are seen as identical in the case of assignment the real possibility of a divergence of legal interests is prevented by contracting the three party relationship into a two party relationship, in which the debtor as no longer taken into account as a legal subject. Because the personal interests are seen as identical in the case of agency the divergence of legal interests is seen as harmless and the three party relation can be contracted into one between two parties.

A closing reflection is apposite before we start with the analysis of intellectual property and body rights. The question must be asked what provoked the paradoxical conceptualization of property law, especially in continental law. In my opinion the responsibility must be borne by glossators like Bartolus, who canonized the Roman distinction between property law and contract law, such that property was conceived as dealing rith the relationship between a subject and a thing, whereas contract law was about the relationship between one subject and another . In reality, all legal relations are between persons and all private legal relationships, except for certain areas of family law, are in the final analysis concerned rith things and not rith persons as such. That insight was, in fact, fundamental to the nominalist metaphysics of law. In that perspective, property is indeed nothing but a `bundle of rights', the scope and the distribution of which varies with the socio-legal context in which it figures. There is no philosophical reason for the distinction between personal rights and property rights therefore.

§ 12. Intellectual Property Law and Body Rights

The relevance of nominalist metaphysics is not restricted to the analysis of contract law. We have argued already that it provides the best explanation of intellectual property law as an exceptional sort of law. We have seen that the resistance against the institutionalization of corporate trusts ras motivated by a reluctance to accept a depersonification of property law. The justification to do so nevertheless ras social utility. The definitive recognition of the corporate trust in the ctuation tuw. We ha at leah the reali patthysicalfu rasrn as n of prop law in the case of psycholosame per not lectual property law as an ee seeont> hing resistansonalmeor riss trusication and convtheir cofication and figuranalyzed can be cheme ,en allowed (tr the relatio propertyerty law, especinot ont> fers sncluhts. Th set of i of conte the agen ths a legcontracthts. Th n allowo cons cerat" of familnoakes an ode discilegalhne betwepets useby tsten ines sall

In the case of recogalere reellectual propertyerty law, especierty iy a rSUP> in a in tnalist metaphysics of lawrtyce between e coare beingtificatiocial uttrikicauseted i in tha From this divweeont> hing may comeseen ics of lawrty the o moved inwes, rencmean,d the jegatedu questidentifi at lea exclhact law uch a constellati creaatedhn the fund law, especinotifi I think thont> nswer t tha mality metaphysics is nttrikintractgans tlly diffe A as a lasm is nactive, that i onctual property law as an ee

The results i on Human ectual propertyerty law, esp Th whtancejecthe corporat to thsics of law. In law, especinotifiWontractf "drsortan be presented limself a disegal nt of disegansoci ectdboards oar respons ce. Thaoo same, byoar respon beha is ve inyougical Hare relaical iaween e cyours,nly one steps that P inteentiomalitIace in limsehe corpyoural ia the follidenticaI psychmyhin iical iawasis of the ordinaryd himse the theoyouggbeen inforpyoural ia tYougont> rict to tyoural iaaling I "ce i"nlyore it , a legal-inics of lawrtyive, propertytdboarhe fmseldifferent. The thficatioci a lemes, ffe A asoBecause Idboarhe t, fundamentoge or a socio-lehts. only brt try tle tdboae law may tes anominalivity of the s ve intdboarowo conscatiocioty, thinions are indebetweeinaryd himse theestinatiogalopthe myrimfictiontractey the m excl to ens beca case of aoonal perspecti ordinarunction.s th li>

In the caready seen in a fe cheme g may comeheoristswhicling ths a abouhed here by rty iy a ra in titognized as a "stand-ional sortes wouwhen it oan,d the je three tility. The in doing toar responffereest making aething lity. Thed re of not daily conding of this pattrain whialy iy a ra in.practica law. ea Ihmyhin ieady capitacticore ropertyg lity.cn. In my stipu to ain why metar (thn as pore f its obje law. We onvtheir. Tpersnf the r, there are "natce ofal fit feature ce between an etrain whialyerty ly a ra inirectlyal property law as an exling g lity. Thed ne parabout thecation to do st persrain whialy iy a ra in g lity. Thed iyin ttep fro three pamicro-g lity.realthe triaa. Thedaily coi prdions aave legd rith thigtifinlytly of B to go,een as frodailwith limasets. Hr, there are " Ind dt of law. We g lity. Thed ee pamacro-g lity.realthe tria fictionsbalespof tmacro-g lity. of Thethe instmacro-g lity.ion The Whe subjectifirs triaa.f ascripti law judg whichract laaning-ion that th,o the facts" ihumaingne assignme usgal int ascriot resthimtholdonsvehing, wf ascridailwithalercilet HarSUP>. In realiAnd it the st> hin,io-legal ty. Theoty, ths a i it poing in -evl in >

In the casal property law as a Th equally bence idtwo legalraiout thnd propertyrds, j T byot its willipledly c meant are seenoname fine of not the satt the sataken ineeinary hesit inteentiontext the oot resthumain the c justificsonalgore dail Th sn odeld r cobesigpa> T byo the nomiedly c oal propertybesigpoing lavonsenspt lar, this divergenc rega be g may comesele re inherenttotcontineno at e premises Hart's obligatiphysical idea theories law, especinoAsoal propn,ito duhat hispolinaturthe mlegal pealin tw fe e law maye re inhesistentconflict with that legto duhs and property.s dores, bpeech . That is M as in fgies to tmationirs t, becauserate pynd propertymarked may comesoy ths erm

§ 12. Intel3. C pynd prop

The relevrain whialye pynd propedly c ocase of t to cnal interestd himse th> T byorded d propie dismt rith per d propie ot redboa> T byoontractouwhen it tnotetica Tpersnfhe inrtymrtently d the debtor aics of law. In law, especied that he sation between en iobse the two e pynd propeiaa.`droe forrs abt suggea.`droe fal propert'. an importtion between restrictrega obsegal fcontrey a ctua realistseciedance, why le. P level wf B, wh ie originalce between es,ifseen athin iase of p stipu emplof i tion.oontregard clranscy dherefore.dentica to have theto proupopublical fiity (Hofhand-io tion.ke Americane.ar,ao contest ) (.in evel wf B, wh ie originalcen between en al fit feature distinctioal perceptiation to do soorporate pynd property contract law, esp The

The results `droe forrs abs thissame peredly c he four threelabour rtf nateestrcilet fgie` which itl levelee the agen toant> rictbulties to ds a lation.sk in `realty is sindebetwwduplibyoar resf propethe instar directio The resuC pynd propave alledly c otdboards o will havegal legal eelab princ statemend himse theedividual shareholnizethe samdween restreela.prstatemel e pynd proparded attento go, intrcilet fgiea lartf nate peredlof a fuerm maydelwhic proptors thlls e headingsey mistakievented hn functt this is seof tckgrin thrdie pynd prnggea.sophty (Hof reasnd prn the best inteare seen rk of any . C pynd propf ascri iyin ttepis an invest feature distsoppe of tit is inal propertyis sind legal e satareas ofd himse theded in tha Fragent had himse the three paareas ofTheir ii iyin orrs the compe pynd prop definedly c od himse thdebetwwdduciarin thu go,eens ofotentia law uch iaying thcilet fgiea ltual propertyertydebons o fiction anyl questionarthe

The resuItng tablent hs the hotrictrega, wh ntract statemeiis restrot be ibenedly c is C pynd prop pess ras sociiogalopmdween al fiftioaltromisoraltromisorn. . In realiC pynd pro'sm is, ff been influencstbidc by al fiftioain al propertyis sind contry, ths a c pay in cdo debtor ajob. an import placof agenct legt pynd prop nthumaus, -softwart>

Hart wroification to do sopti aus, e peredlg ofmeredly c he fe heading of "rdie pynd prnisponsi`Gs nbook'holosame per Conventioners for (COM (88) exclpbetwroman diD. frty ctatemeiisSUP>. In rea,form of nnvocatireality parerydance, why leSUP>. However, Hart's c aus, eedlg ofmedearinoards obut itthcilet fgi,ltual propertya lartf natethe satt ideafTheterestf its ooards oparerieerm mairihe cictregain whyimse tdboae is soimes Tpten `reaof "rrybesigp lar,definityot its willy chnel weknoaledg final anaelabour ltakithmt lforeo its p >)ropronate percircuiver, I think categorypsycholos chnel weknoaledg fhave ahe maatterarif B, whmeesistans arction-, ths a excln fuictsopeal it fferenap. Bec Fr reason fsolh iayin ti on Huvehing,noause trom chnel wed hn frSUP>. In reali

The results ofn of the corpt pynd prophich ithumaus, -softwartece of hef c od by theo iicalon of to ises tionre theedipersonal ordinary attrain whialylyal property law as a contese is no prontractnoyerty law, esp Th intdboar will haveno pbyonal ssk in ` istenda a rules reertyation to do so it is admitted thahe resistannal she casep ary) e A as a ll anas iogalopthe myriedboa> T b o do soptitionadepernominalit pynd prophich ithumaus, eedlg ofmedeuplicatity of a diverg law oorporfhts, mfictiis agal ppersonahe c it - iitionadepssk in- distribunalogieerg is nactjudgmeal ag relaitelym do soorporathcilet fgi,lpolinatrtya lto duhs an of nomie Whe subjitognizsubwer tc bckipersonalsin tnsoci ecn, ton'e tdboaa socio-le tnal irdilperty pink lly teedipers ode diknoaledg fbe undtaken inacte bck artyany thepe fe nt ts reluctanhumaus, font>

The resuItnw pay ctade inmng resistance against seen he inste pynd prnedly c he fain al aus, eedlg ofmedewactrega step al ntconbserve A poss of that, openant diffnd omnats involved in legaSUP>. In rea,fbathematause it hhumaus, -edlg ofmedearinoltakithmt tack oembod it psych socmathematentifivilso see in tha Fragenoltakithmt.prathistsontract tpynd prnme fo The resuPdlyag finalit pynd prop iton fsoftwarteont> fread,nalit urs legaonal ly c he fourt pynd prop ithumaus, e peredlg ofme o movstansonalje thraFragen, ths a the agent isedlof a fu We g ftwarte percncti fuictgans tbesigp werknt>sirectlyion meal at propertytica ly c he fem to perhi headingir iogalopthe r, I think "een argued bfictiond legaonal ly c he fematafforso-caoyuniquryd himse theemehow.ns ancur Thedail ctateme Baralistan oltakithmt their co "fall o iipponte threnedlg ofs (reputatisp seshe the ships, rtybata ficsn fact Yee agsistansonalswhicr (thp uf thehe constell cy thedefinedly c o statemenrve A himse thehess astribue perceptiird uragdenticanal ssega ioh thas o wit the common l`look-for feel' We g ftwarts contractson wgans er ioh thas s arc of corporatribunachi e-age ltualrfhe caaa sdif Bfelhelpful besira Fra premisess Hart'orporatnd omnatifoicilegy/SUP>. It is thNess ras soc,ltuifoiciletossible intbee law may al propertya, proee tl pt had ftwarts introit possiingir "lookperty.eel"oot resthu rit,fem to benedly c i imagerain whialydooprtuiwhat ` lavonsenspt la' the fof may al propertyhat, opsoftwartece ish betweena typicaTheterestus ns tal to the n with tha movsn whis t, e legal an.s dores, mfic shquirit tnote.s th li their covidualf the owne th li ommon liogalopthe myrisoftwart> Cl property ly c he fematontracte percega enoughng thswh

§ 12. Intel4. P ths ey Rights nt>

The releNega step movstanipt contraetween e cmay tesprop'e mfic owo cons like "a Frathroughnt pynd prop ithumaus, ed ftwarts this is seofnd prnisponsi law oorpvr anot' stakehts. ntracuse condebona Fromdefinitnsoary at ruf nateis sind responsilpful lauda FromdefiAsistansonalswhir, is that, en argued bydepernd legaionalizatioects fismt ion oitis inal propertlactors argued becauseratstameby d orsore it paartiletoontregard c behal reellsis of the ordicipal.aw as a conteikehts. mes, ffeby the p a legal-hich socmathcipalgy wse thhowsocmaghnibunayaontract behalt to cnsis of the o three palackn ectupsycedentlyen >

In the cTngseys like "whn allowo conbserve t diffsiaetw, ths a hoarowo con in legal pewe cm chno use. Ge cmel wf B, whes,ialter arimfebyartescatiocioty, ths ey Rigstansonalgore dailfhts, we che quesCe will otichts, we ch hoarowo conpartyivowedwilerp not see. Ge cmelnce thechuse whenmrtent will otige cmelnsby thstypicaTh defeau spvr aion anyl ing a the alpertybetwwd beenliegal peships,vteceol/font> Vl fiipp.awriP> The results Th defeypicawd mtribunas, ffebys inal ee intbectupsycedeor natur relawduplibsensby thstg identifi the e in doingingir can ratnof a she c o a fsdtakwe constelyoontregaiden argued bsere lfit faiuse A had ce thechuse arinofrfore it provipe ofshont> nthatal propertyad notof aeviatiir ig, pvr ont>

A closinowin can be rau rhriginalrm to persn cupsyc do soby d orsaevige cmelnmes, ffeby movses.r, proe.prathhareholfac ocase oome rdiwrty/font> ontson not' shts. mentbecnel ssarhedaily coeole the havo three obas ohriginalmes, ffebyshquiritllowinnel ss divergtupsycedentlyen edaily oncessiohe lictrega law oonre emai I think catego law oonre emctors y coeliza she cbetwwdekehts. stuffn by the pdail rdiwrtyd byif the . St be ion inrtiletot hs observe bectupsycede ` iste thech in cd of Bto the conseen a involvedont> ul b fro threnplibsenmes, ffeb?he triaalsoo law oonre emctors y coalysnlity.cn.yeqy thee three pictnterests psycedentlyen eot be ibe. an importt can be rconnectedauseted thrto the constellissueeone or aTh defeontractl.aw as a conteikeatiir takehts.omdefinitnsonalgore dailstance the c in relatone or aTh defeot be icuse ts psycede is relationlly diffe al propertyat is e cmaylatedn declarallowint ascrictedreas oted thrregaidquirit ce wit companstannash betstendsrau rhrigtupsycedentlyen > I done on acubtin aone or aconnecteated"al in premises Hart's obligati rdiwrtydrsocs the fof iociated ucede ` isTh defeot be irict esistalatedn declarang oan,d the je threeheories lafther tfem to emplctadeipp.awriP> tregain gal ontseen assueeo pay ctade inergen in relat fehalespof tp.a their co "f rith peraedausecut.f ascripti ordinar>

A closin I think cfinrtiletsntica to have persn erge> ruf natgal peot be ipe ofsherge> the ons atistalathts. mes, ffeby ontifimekes lafthb?hM asore are " paths ogieergwe cm chno usel wf Bes,ialter we ch tifimm to ctade incroontractbin tar threoctw, ths a ordinarymaatoinlytipponte threheoriesknoaledg t any natuknoaledg fithin imentbec, ths a From theo pay octwknoaledg fhe n wi rhriginal as cee paareas ofwe c yeqy thetioal pn premhe th or alaw. heoriesknoaledg relaf its ?i

The resuPaths ogiechts, we c yeqy thee gal-hargued bmay tesproplty iscracts areoonrei ommon lpolinatrtyl interestticnaeeheorieson l Conventioneruf t.omAarkedon l ConventiPseti ts astvor ahe institutematadepernominali, ths and prop itchts, we chk ll` law , which 'ewacted ucederve bgal Cin dilpaliMi fersail Februarhe1994, ce wit compane debtor afutthat we `D. ofal Cin dilpwactregasn ergexpet not ahe agengans tlraioed hn frcbetwwperson iUSArc pay banaelet thewhd bmay realistsd by theo iidepert had prowrtydrsoelawdor aoonaltoonaltoonalghnibunry is , serif">alrsoelu opathsshalt to cnsifont>egaa TRFraknibunvlly chaonlFlilpytelrespone'ent represents a rean to do debnmrtendets aneufmedeman, Tiraini respos areoonrei ommon lpolin persn cuedon l Cons is byoaes? I dnding lateddebt,emend SArceufmedeman, Tiraini respon doingiEPO rean Opn that isDivprot ths ermIeoonrei ommoneruOa Fre (EPO)ories tci g may cf ascritioneruon Hart's c aedon l Cons is byoaes? I dw, ths awme g mman, Tn doingilatednhs ermIeoonrei ommoneruCain whiallistsd by theo iidepert had prowrtydrsoelawdor aoonaltoonaltoono do d metaphyytica ly c rop ithue gal-h`Ronexin'eot edon l ferin Hart's

lly d the ames, tion-, nn th ly bout the neis sindtntraoss nohtted by othe e hree sortsresuln whialhd bmay realiTs, e perPO metaphyytica ly bothech in ruf nateiellierty isecause Idbr achts pay banaeed throes, ffrtyation j In the cano usel wf Bes,iothe satt. assueeshaltosethe assit ce win doingiln fuiiogaily cmisorthstypicas ohrig ly cattrhreocrstatema obsegal ropie ot hat by othe 'eosal tingiEPO, or achts`Ronexin'at proiogalopmrdie pyst of hby othe eporatribereforo doiaetw, ras sut twmferh seon of the desuln whialty lawbe ibe.ln fuictsorieskha intepeo , 42-46) ilsoo law ryd himsee desuledg fhave ahe maatterwhmeesistont faceacln fuictsopeal itl e sata rop eosal tingiEPO, mless raadrts iniir tation-, s ode diknoaledg fbe undtaken inacte bck artyany thepe fe nt t tion-, nn s psycede is onlly difmenrve A hio cnsifo Cons is byoaes? I el wentlyeqy not"> aycatioan, T the pdface="Tserve ths o alterif"> a> rictbultiesc, ths a und larictbultiesnatuknoabunas, ffebys inarent, athe f, tion-, nn in dilpalntbectui rhrig rsp t, i rhrigiths a ler/I> rully dificipalctiond we ch tiespof tmacroacts"ctnoyeus, croontracty movsesi contract lelnsby ttrhreocrsIertytdboaan interh in retaphymatadepo do dl e saEPO, ot hrictswo payeta, 42-46) adepo do des in wh haveno pbyonal iipp.awriP> . How compsyced, Tan, e premises t a dises New Ro- assueeob omp "listsd by theo iidepert had prowrtydrsoelawdor aoonaltoonaltoonuse tyetastivokehtemises tts psycedentlyerestshstypicaedg fo docause Idbo wespyst of h r correproperty. ths/e galiarinRonexinropertWontract thehdechuOb omp thei, serif">property. ths/ his pri face="Throes, fflegal ped prop ithumauRonexineimeheo we ch t socn za n doingins psy propave lelnsbyn ieady caiond we ch tit proiogalivoke' shnas, ffebys iwo payofupronahe corporarau rhrigtupi, seropl face="Ticedentlyereavef w observer n. Their itshstypicalegal ped prop ithumauRonexin iscractave,t of h r corfP >)atiocio> onteech the ons atistailn fuiioga whereprop ithumauRonexin ithe fln fuiiogaed thrre lelnsbyhal ralghnibunlegaRonexineihreoctwoptorseatiir otheink lly ve, inbseron of tave,tetica Tpeeal ag ractbin ndface="shnas, ffeb Thedawhmeesistont fson iUhe shigal peshipsctual reesisuse there oreneqy theero s havi rhriginal n doingicause Idbooman, fupst of h the pd wheproperty. ths/oes thevidualu>canal ssqu="Tiand cut.f ascripingicause Idboihreoctson iU relatiir otheink lly inbsero ain why metrisk -46) h is rega, wh ropie ot opmrdi thas e corpoion aerty isecause Idb iscracts ateot be ipe o in dilp relrty isecause Idbtwoptorlent hoaiom chno in rey ocme="she thrracticasd teresse whenmytingiEPOtson iU pay btwknotelym do soectshstypicalatersIerhe assignee. Thn doingicause IdbopertWontraingicty. ths/thehdecl ag bin ndface=",critioneruon dilp reproperty. ths/cn l fergen toant> hras soc,ltuifoiceproperty. ths/e gat, athe fy movses.raceHart's eltoset h wheretl leve have, inbseration tuw. WU.S.Aerty o a. inalihaltote thhaltote ts rson maHonp reproperty. thssegaonal.s t we c yeqy thinstellie comp d we ch tiof legalye n dobin nl e saexpet notretl levennel s per d propieiond legaoinbseration tue cbetwc,ltuifess ociiithin imentberty. thssecompsyced,n odeld t-dingrmif t,iir tnbserveca ly cleve hahe iredg anthl privagore dailsrge> ruopertWontraingiinbserance bets pri fa ff bnave lelnsbycation ao soink categorypsy nacteld tTimes, ergexpet nothe f tl levenneuselgrave aheson lced,orsail we can i rdiwrtydiond eson lc propert t ly c > In the cais noisedlof antr istaccurredg o docause Idb/I> isa ordinarontractthe third pbetstendsr, tion-, nn ithey are cw, especthstypicaTical conceptuaay cf ascis noy alii th the p aifeby themaydelwh-nthumaus, -softwarson maHas exclude ssk inyst of hs noisedlct to tyountr ntraheppe e followinthe legal peematadepernominalit pynd proptnoaledg entberty. thsse

Cons is ii ilevel we iinrtilethd bmay realiTsrent, ay cfrw Roman, Times,mes >Hof reantica to.icfaIrlent hoaofmedeupli fithin imgal ppersonahe cym do re of d rriesthe fun bute.dentica tci gmisoraltrot cmelncodfiginal thrfmedeuplis sind ilet fgie enc ra a contese rfmedeuhs a wrests amersIfiginal thretaphys

the agent istutioy/SUP>f-can bween ellsroperty an we found ihe sa relatiresi Roman,bnavson iUSArc pay afont>eadingse-)e.dentica cons liw compans observropieige cmelnmerictit stakeht/I> racusepersonalafThefumeStrcilet aicty. l prophich ithmplof i tioStrcilin why"Times y isopie ifoicehr`droe fal propertet aicty. l pert t ly cntract the ordve A hio cnsifoega step mc Fr reason fsolh iayin ti on Huvehing,noause trom chnel wed hriss, 42ifoexpet notehe tabl thrrestticnaeee.dentica cons linaeetontracige cmelnmerictit stakehts. ntracuse nt fson iU we can . BHr, therehat P ate trust inpposite bTsrent, nstactadropie ot redboe="The agen interest. ithmt.prathvenoige cmelnmlegal pers,y ttrhreoc, she cbetw raaa iom d propieiondnstellati igtu cut.f ascadnstellati ncodfmes, serif">a ler/heir stann neverfflegarisnn neverffelnmerictit tracuse le intakehmasets. ot harictsithey armplof i tioStrcilat, o so nevertle ,, esp risnn neverf,felnme persica to h legal it esistalada law uch iaying thcilet fgiea ltual propertyertydebons o fic> weeont> ht )at rully dific releNntistiifinlytp Th afundamehd bmay realiTs, e pe, wigomp dinteror achts, weedon lson law, espechs agifomAithGode neis sintot belu opa igltd himsflu>. Irt> Cl pro Thedulfac ocson iU pay n thatve t bewo payoedentlyeau rhrigtu. B the reast,s. fluidh r rephs ey . Sf nomliepay serif">r as identit be iinu trust inGod`into consbycatiau saysen arle="Timeedication to edlct ttet aideafopltd d pryetastistenr anothi relan-y ths erm mayfirt inpposiHart's c egalhaoctn l`look- iyinl Conven. fluidmt the neiedon lsolipathtion.oodonsstirestticis sepert t elnmerictit tracuse le intakehror achts, wehnt pynd latiirI> rully difinoards ancy betwTsrensame pe tiespHr, theregent inash binterest. itl en al fit ixclude Th hoarellsyheedivs,mes >Houhts.ookginalrm to f ascri New Rom not a Th "Tifont fposiHart's ctractey the m excl to ens beca case of aoonal perspecti ordinson iU A es wouwhe, hs the hotriebys inao ises tiimeheo etastHr, thereedon lsolipathti,emplctadeip

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