Separation and abstraction in property transfers: a comparative study of English and Chinese law

Thesis

This thesis is a non-traditional comparative study of a traditional topic, to see to what extent the non-unified rules in English law and vague rules in Chinese law can be fitted into the conceptual framework of separation and abstraction which originates in German law. It therefore comprises two main questions: first, how title/ownership is conveyed inter vivos consensually and second, whether the validity of conveyance is infected by a nullified or rescinded underlying basis. As for the existence of separation (between the underlying obligation and conveyance), answers for both jurisdictions are generally in the affirmative. It is further argued that though the underlying contract and the conveyance may factually coincide, a separate intent to convey can nevertheless be found as a method of conveyance conceptually independent from the contract. As for the existence of abstraction, answers for both jurisdictions are also generally in the affirmative, though in English law it appears to be but is in reality not subject to an exception in the context of sale of goods involving fraudulent misrepresentation, while in Chinese law such proposition can only be inferred from clues in other legislative provisions rather than direct authorities. A special feature of English law which must not be neglected is that though the transfer system may be notionally abstract at common law, the consequence of a valid conveyance involving a flawed underlying basis might be a right beyond in personam under a constructive trust. This makes the English system effectively causal in equity, though a coherent rationale is not easy to find regardless of the trust being an immediate response or one triggered by rescission. Although trusts are recognised in China, the role of constructive trust as a device for reversing unjust enrichment is alien to Chinese law, with substantial barriers from a systematic perspective for Chinese law to take lessons from English law. When it comes to debates over justifications between abstraction and causality, pro-causality justifications such as swollen assets, involuntary assumption of risk, causality plus bona fide acquisition, and property of sentimental value cannot stand up to scrutiny. It is suggested that the theory of detecting opportunity could serve as a positive argument for abstraction

Authors: Wu, Z

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: separation; abstraction; rescission; property transfer; causality
• Subjects: Trusts; Unjust Enrichment; Contract; Property; Torts