A comparative study of the Chinese Law of constructive delivery from an English Common Law perspective

• Author: A comparative study of the Chinese Law of constructive delivery from an English Common Law perspective
• Pages: 291-308

FRONTIERS OF LAW IN CHINA

VOL. 13 JUNE 2018 NO. 2

DOI 10.3868/s050-007-018-0018-2

ARTICLE

A COMPARATIVE STUDY OF THE CHINESE LAW OF CONSTRUCTIVE DELIVERY

FROM AN ENGLISH COMMON LAW PERSPECTIVE

WU Zhicheng∗

Abstract All three forms of constructive delivery, namely, traditio brevi manu, traditio

longa manu, and constitutum possessorium exist in both Chinese law and English law

with notable differences in each form. As regards traditio brevi manu, the current unique

requirement of the transferee’s prior possession being “legal” under Chinese law cannot

be found in or deduced from its English counterpart. As regards traditio longa manu, the

major difference between the two jurisdictions is that the third-party possessor’s

attornment is necessary condition for a valid traditio longa manu in English law whereas

it is not in Chinese law. As regards constitutum possessorium, while English law accepts

a wider scope of scenarios than Chinese law, passing of property in English law by way

of constitutum possessorium is only effective between the parties themselves but not viz

a viz third parties whereas it is effective in both respects in Chinese law. Compared to a

mess in English law regarding the issue of symbolic delivery, the simple, clear and

negative attitude towards symbolic delivery in Chinese law is to be applauded, and is to

be regarded as a Chinese voice that should be insisted on and be brought into the

upcoming Book of Property of the Chinese Civil Code.

Keywords constructive delivery, traditio brevi manu, traditio longa manu, constitutum

possessorium, symbolic delivery

INTRODUCTION .................................................................................................................... 291

I. TRADITIO BREVI MANU............................................................................................. 293

II. TRADITIO LONGA MANU.......................................................................................... 294

III. CONSTITUTUM POSSESSORIUM............................................................................... 298

IV. TRADITIO SYMBOLICA ............................................................................................. 302

CONCLUSION........................................................................................................................ 308

INTRODUCTION

The new General Provisions of Civil Law 2017 was enacted in March 15, 2017, and

has been effective since October 1, 2017 to replace the old General Provisions of Civil

* (吴至诚) D.Phil. Candidate in Law, Faculty of Law, University of Oxford, Brasenose College, Oxford

OX1 4AJ, UK; Assistant Professor, School of Law, Renmin University of China, Beijing 100872, China.

Contact: zhicheng.wu@law.ox.ac.uk

292 FRONTIERS OF LAW IN CHINA [Vol. 13: 291

Law 1986. This was a landmark legislative starting point after protracted drafting efforts

made by generations of academics for the first Civil Code of the People’s Republic of

China. Current drafting work then moved on to separate Books including the Book of

Property, the promulgation of which is therefore no longer a bridge too far.

Similar to main topics in Chinese property law, English property law also mainly

deals with the types, the creation, the transfer, and the extinction of property rights. So far

as transfer of ownership (or, title in the English context) to movables (or, chattels in the

English context) is concerned, while delivery is the sole method of conveyance in

Chinese law,1 delivery is not the only method of conveyance in English law.2 Apart from

delivery there are other two methods, one being deed,3 the other being intent (limited to

sale of goods cases).4 However, the role of delivery is not unimportant in the English law

of conveyance because even in cases of sale of goods, parties can still contract out the

default rule of transfer by intent, and stipulate that property passes by delivery.

Delivery can be divided into two categories, namely, (i) actual delivery (现实交付),

referring to handing over of physical, direct possession, and (ii) constructive delivery (观

念交付), referring to handing over of fictional, indirect possession, or possession that has

already been passed. Constructive delivery can be further divided into three

sub-categories in both Chinese law and English law, namely, traditio brevi manu (简易交

付), traditio longa manu (指示交付) and constitutum possessorium (占有改定). These

sub-categories were not explicitly recognized in Chinese law until Property Law 2007,

but as pointed out by scholars, ideas of traditio brevi manu and traditio longa manu have

already been implicitly recognized in provisions of Contract Law1999.5 As for common

law jurisdictions, since this topic belongs to a rather traditional area of law, English law

could be regarded not only as the homeland from a historical perspective, but also as the

most representative one among various common law jurisdictions for comparative

research.

Despite a rich academic literature involving comparison between Chinese law and

major civil law jurisdictions in the field of constructive delivery, there has been little

comparative work between Chinese law and common law jurisdictions. This article

therefore is to fill up the lacuna by comparing between Chinese law and English law with

respect to rules of the three aforementioned sub-categories of constructive delivery.

Besides, a closely related topic, i.e. the issue of symbolic delivery will be discussed

afterwards. Aiming at finding similarities and differences between the two jurisdictions,

this article also attempts to draw lessons both from English law for Chinese law, and from

1 Property Law 2007 (China), Arts. 6, 23.

2 Cochrane v. Moore (1890) 25 Q.B.D. 57 at 72–73.

3 Pynchoun v Geldeford (1385) Y.B. Hil. 8 Ric. II, at 215, pl. 17.

4 Sale of Goods Act 1979, s. 17.

5 See e.g. WA NG Yi , 物权变动论 (On Transfer of Property Rights), Renmin University Press (Beijing),

at 151 (2001). These two provisions are Contract Law 1999 (China), Arts. 140 and 135 respectively.