Transfer by Contract at Common Law and in Equity

For those who adopt a t"ransfer"-based explanation of contract, even the act of promising to do something at some later time appears capable of effecting an immediate transfer of rights from promisor to promisee. In this article, the author argues that this conception of contract presents a strong problem of fit from the perspective of the common law tradition, particularly where the rights being transferred are framed in terms of property, ownership, or some other entitlement pertaining to things. To do so, the author examines two ideal types of transfer by contract provided by French and German law, the former corresponding to the consent-only approach to the transfer of property rights also embraced by most modern transfer theorists. By contrast, the author suggests that it is the German approach, following which the right to claim a thing by contract is clearly distinguished from the actual ownership of that thing, which presents a better way of understanding the requirement of delivery-or compliance with alternative formalities-that remains fundamental to the transfer of property in common law jurisdictions. Although the rules applicable to the sale of goods and certain historically equitable doctrines may cast doubt on this argument at first glance, the author concludes that even they are ultimately more compatible with the public nature of the formalities required to complete a transfer of real rights under the German model than they are with the consent-only approach favoured by both French law and contemporary versions of transfer theory.