Suppose, moreover, that Andy himself had borrowed the book from his sister Susan. Susan
will therefore hold a better title than Andy. However, as long as Susan doesn’t claim her
title, Andy can continue with possession of the book.
This is different in the continental system, according to which only one right of
ownership can exist on a good. There is therefore no relativity of title in civil law
systems.
Let us have another look at the case of Thomas, Andy and Susan, to see how that would be
analyzed under a civil law system. Andy borrowed the book from Susan. This leaves Susan
as the owner of the book, and makes Thomas into a detentor of the book. Thomas has no
right to the book itself, but a personal right against Susan to use the book. Susan cannot
vindicate the book from Andy on the basis of her ownership as long as Andy has this
personal right against her. But a new owner (if Susan sold the book) might vindicate the
book from Andy, since Andy’s personal right only can be invoked against Susan.
Thomas is also a detentor, this time based on his personal right against Andy. Andy cannot
claim the book from Thomas because of this personal right, but arguably (there are some
complications) Susan might vindicate her book from Thoman, since Susan still owns the
book and Thomas only has a right against Andy, which cannot be invoked against Susan.5.3.3 Equity
The rules of common law are very strict and sometimes lead to unfair results. To
avoid some of these strict and unfair results, a second subsystem of law developed,
known as equity (see also Sect.1.3.3). The origin of equity is also closely related to
property law.
One obligation that might be attached to landholding was to render military
service to the King as a knight and to join the King on a crusade to the Holy Land.
When a knight, holding the right to land with a duty to provide military service,
would join the King on a crusade, he would leave his land behind unprotected. The
strict rules of common law did not allow women or children to stand before a court
to defend the property rights over the land. Therefore, the knight would transfer his
land to a trusted friend who would take an oath to protect the women and children
on the land and act in court as necessary.
However, the friend did not always behave as a friend, and sometimes he evicted
the women and children from the land. These women and children would petition
the King, who would ask his advisor, the Lord Chancellor, for advice. The Chan-
cellor would advise to grant a remedy to the women and children, recognizing their
entitlement to the land. However, this recognition occurred in the Court of the King
and not in the courts of common law. In this way, a subsystem of law came into
being, known as equity, after the justice done by the Lord Chancellor and the King
to correct the harsh application of the rules of common law.
Trust Moreover, this is the origin of trust as an institution in common law systems.
If there is atrust, management powers and enjoyment rights relating to property are
separated and divided between a manager (trustee) and one or more beneficiaries
(beneficiary owners).
5 Property Law 81