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Yaëll Emerich on our common property law

Property is often thought of as one of the dusty disciplines of law, unable to escape the trappings of hermetically sealed legal traditions. Not, so, says the winner of this year’s Walter Owen Book Prize.

Photograph of Yaëll Emerich speaking at a microphone
Photo: Karine Kalfon

In her new work, Droit commun des biens : perspective transsysmétique (Common property law: A transsystemic approach), Professor Yaëll Emerich suggests that those traditions have plenty in common. What’s more, they engage one another in ways that shed valuable light on today’s major issues.

“When you take on a research project, you never know where it will lead you,” said the associate professor from McGill University’s Faculty of Law, who announced as this year’s winner at the CBA_Quebec Branch’s holiday cocktail party. The award recognizes excellence in legal writing and rewards outstanding new contributions to Canadian legal doctrine. “It’s encouraging when peers recognize the quality of the work,” says Emerich.

Acknowledging differences points to similarities

Emerich’s book examines the history and philosophical foundation of certain key notions of property law (from possession and ownership, to its fragmentation and trusts under both civil and common law) in in the form of a dialogue between many legal traditions.

Passionate about comparative law and theory, Emerich examines Quebec and French civil law and Canadian, English and American common law. She even allows herself a few forays into other less known systems. And without going into an extensive analysis, the author makes sure that First Nations’ distinct approaches to concepts like ownership “are not excluded from the dialogue.”

In comparing Canadian civil and common law traditions of property law, one might be tempted to take the view that determinations on property contained the Civil Code of Québec in finding treasure, for example is miles away from unique concepts such as the Manitoban fee tail.  

But according to Emerich, some notions wander from one tradition to the other. Take possession, for example. Despite its varying origins and impacts, there is an underlying common idea, according to Raymond Saleilles (civil law) and Carol M. Rose (common law), that “[our translation] possession is a way of communicating. It is a message sent to a third party and translates into impacts.”

A timely reflection

In today’s global environment where significant issues are quickly coming to the fore —the appropriation of public space or the right to housing, for example — Emerich’s comparative study is useful in suggesting how property law might evolve to offer up new solutions to modern challenges. This is particularly true in environmental matters. Following disasters like BP Deepwater Horizon, the traditional concepts of “possession” and even of “ownership” seem inept.

Emerich, who brings some fresh perspective to our understanding of civil law trusts, argues that Quebec has a major role to play in this area. For one, the concept of power to act that that is so central to the way civil law governs the appropriation and administration of property could give way to ecological solutions founded in notions such as patrimony by appropriation and fiduciary duty. Transforming the basic understanding of property itself would certainly help solve major environmental issues. Also on this topic, the author suggests that indigenous traditions could serve as a beacon.

Effects in “Transsystemia” and beyond

In the McGill University Faculty of Law, civil law and common law have existed side by side in the same courses since 1999. As a result, the faculty is affectionally referred to as “Transsystemia.”

In 2017, the university’s offered for the first time a course in transsystemic property law — previously taught as two separate courses. Emerich, the chief architect of this “conceptual reconciliation,” was also tasked with teaching it. She emphasizes the exceptional work produced by the faculty’s students. She also mentions her gratitude to professors Roderick A. Macdonald and H. Patrick Glenn, whose work paved the way for the transsystemic approach and her own passion for this inter‑tradition dialogue.

Looking beyond property law, Emerich sees an opportunity to inspire other jurisdictions. “[our translation] The transsystemic approach has reach beyond mixed jurisdictions and the circumstances specific to Quebec. It is beginning to influence Europe. We are starting to reap the benefits, and there is so much potential for research,” she concludes.