Revisiting property transfer theory: English law and Chinese law compared

Abstract

The relationship between a conveyance’s validity and its underlying contract has been a classic but unsettled topic for comparative private lawyers over the past three decades. This paper attempts to add positivist and normative observations drawn from property transfer theories and practices in English and Chinese law. A jurisdiction adopting an ‘intent plus’ model does not necessarily recognise a separate intent to convey distinct from the intent in the underlying contract, as exemplified by Chinese law, while a jurisdiction adopting the ‘intent alone’ model does not necessarily deny the separate intent to convey, as exemplified by English law. One advantage for a jurisdiction that takes the separatist approach is its flexibility, so that it can still choose between pure causality, pure abstraction, or context-based abstraction at a later stage. Recent developments show that English and Chinese law are moving towards this approach. As to whether flaws in the underlying contract infect the validity of the conveyance, the English position depends on vitiating factors, whereas the mainstream Chinese judgments tend to be pro-causal. Justifications favouring causality provided in the English and Chinese academia are different, though neither can stand up to scrutiny. The detecting opportunity argument submitted in this paper helps to justify abstraction.