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Wealth Transfer Laws in 153 Jurisdictions: an Empirical Comparative Law Approach

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Wealth Transfer Laws in 153 Jurisdictions: an Empirical Comparative Law Approach A2_CHANG COLOR MAPS (DO NOT DELETE) 7/18/2018 10:20 PM Wealth Transfer Laws in 153 Jurisdictions: An Empirical Comparative Law Approach Yun-chien Chang* ABSTRACT: Wealth transfer doctrines have never before been compared on a large scale. Using a unique hand-coded data set on property doctrines that I compiled over five years, this Article describes the following doctrines in 153 jurisdictions: whether the jurisdiction recognizes any future interest; whether real estate registration is absolute (public faith principle); whether in sales of real estate registration is necessary, or create opposability to third parties; whether a real agreement is conceptually separate from the sale contract and whether an invalid sale contract will always cause the invalidity of the real agreement (non-causa principle); and whether delivery or certain intentions are required to transfer ownership of personal properties or the sale contract itself is sufficient. Further using clustering analysis, this Article categorizes the wealth transfer doctrines of the 153 jurisdictions into eight groups, finding that China, Russia, and Scotland are the outliers, and English, French, and German influences on many jurisdictions are obvious. * Research Professor & Director of Center for Empirical Legal Studies, Institutum Iurisprudentiae, Academia Sinica, Taiwan. J.S.D., New York University School of Law. Email: [email protected]. I would like to thank my Research Assistants (“RAs”) over five years from Taiwan, Peru, New Zealand, India, Israel, Colombia, China, Hong Kong, Singapore, Uganda, Turkey, France, and South Africa. They are Winnie Awino, Harika Bakaraju, Gahli Berger, Paloma Carreno, Jung-Han Chang, Danlin Chang, Gina Chavarry, Chih-jui Chen, Tzu-Yuan Chu, Yichen Chu, Huseyin Guzeler, Melanie Lee, Ingrid Lee, Christina Lee, Calvin Lim, Tin-jun Liu, Hannah Musgrave, Maria Oluyeju, Anne-Line Schwint, and Daniella Weinrauch. Academia Sinica Career Development Award (106-H02) provided the main funding for this project. The librarians at the University of Chicago Law School and Cornell Law School provided great help in identifying foreign law materials when I was a visitor there. Some of the aforementioned RAs are Masters of Law (“LLM”) students at Chicago and Cornell. The University of Chicago Law School also covered the expenses for the LLM RAs. The Law Library at University of Iowa College of Law also provided me with foreign legal materials when I was the library’s Bonfield Fellow for 2016. Professor XU Guodong, though we have never met in person, allowed me to Xerox his civil code collections. Professor Nuno Garoupa helped code the property laws of former Portugal colonies and co-authored with me several other papers using the larger data set. Many other people have helped in making this gigantic coding project possible. I am grateful to all of them. For comments on prior manuscripts, I am thankful for helpful comments from Aurore Chaigneau, Chung-Wu Chen, Pierre Crocq, Thomas Gallanis, John Reitz, and Tzung-Mou Wu. 1915 CHANG_PP_FINAL (DO NOT DELETE) 7/18/2018 10:19 PM 1916 IOWA LAW REVIEW [Vol. 103:1915 I. INTRODUCTION ......................................................................... 1916 II. UNIQUE DATA ON PROPERTY LAW IN 153 JURISDICTIONS .......... 1918 III. DESCRIPTIONS OF AND REFLECTION ON WEALTH TRANSFER DOCTRINES AROUND THE WORLD ............................ 1920 A. FUTURE INTERESTS .............................................................. 1920 B. TITLE TRANSFER RULE FOR REAL PROPERTIES ....................... 1925 C. PUBLIC FAITH PRINCIPLE ..................................................... 1929 D. TITLE TRANSFER RULES FOR PERSONAL PROPERTIES .............. 1932 IV. LEGAL FAMILIES REGARDING WEALTH TRANSFER LAWS ............ 1941 V. CONCLUSION ............................................................................ 1944 I. INTRODUCTION Traditional comparative law research has been conducted on a small scale. Scholars choose their country of interest and compare it with one or a few other countries. The endeavor is usually normative—drawing on other countries’ experience to justify adopting or giving up certain legal doctrines or interpretations. Comparative law is sometimes positive but seldom empirical.1 A notable exception is the law and finance literature started by Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Visney (collectively called LLSV), which uses data from dozens of countries to qualitatively identify patterns of the effects of laws on economic performances.2 Yet LLSV’s finding that the legal origins (common versus civil law) matter has been heavily criticized, partly due to its casual classification of 1. For an overview of empirical comparative law works and reflection on the methodology, see generally Holger Spamann, Empirical Comparative Law, 11 ANN. REV. L. & SOC. SCI. 131 (2015); Holger Spamann, Large-Sample, Quantitative Research Designs for Comparative Law?, 57 AM. J. COMP. L. 797 (2009). Most empirical comparative law scholarship is about constitutional law. See, e.g., Jerg Gutmann et al., Determinants of Constitutionally Safeguarded Judicial Review: Insights Based on a New Indicator, in EMPIRICAL LEGAL ANALYSIS: ASSESSING THE PERFORMANCE OF LEGAL INSTITUTIONS 216, 216–54 (Yun-chien Chang ed., 2014); Tom Ginsburg et al., When to Overthrow Your Government: The Right to Resist in the World’s Constitutions, 60 UCLA L. REV. 1184, 1217–28 (2013); Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt Constitutional Review?, 30 J.L. ECON. & ORG. 587, 597–613 (2013); David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 N.Y.U. L. REV. 762, 768–70 (2012); David S. Law & Mila Versteeg, Sham Constitutions, 101 CAL. L. REV. 863, 886–92 (2013). 2. See generally Rafael La Porta et al., The Economic Consequences of Legal Origins, 46 J. ECON. LITERATURE 285 (2008) [hereinafter LLSV, Legal Origins] (reviewing follow-up studies and responding to critiques); Rafael La Porta et al., Law and Finance, 106 J. POL. ECON. 1113 (1998) [hereinafter LLSV, Law and Finance] (using empirical data to examine how the legal origins of 49 countries impact their economic growth). CHANG_PP_FINAL (DO NOT DELETE) 7/18/2018 10:20 PM 2018] WEALTH TRANSFER LAWS IN 153 JURISDICTIONS 1917 countries into common law, French civil law, German civil law, and Scandinavian civil law.3 Recognizing that detail is crucial for an effective comparison, I embarked on a five-year project to code the property law of as many jurisdictions in the world as possible—ending up with information in 153 jurisdictions. This is the first ever compilation of such a large data set on comparative property law. Since the data, including 205 variables, were hand-coded (often first by native lawyers of the region or country and triple-checked by me) and based on the statutes (often civil codes) and cases, the empirical analysis of these data are more informative to legal policymakers and legal scholars than that of cross- country economic indexes4 or a single dummy variable on civil versus common law. Drawing on this unique data set, this Article will focus on several wealth transfer doctrines in the analyzed jurisdictions; including whether future interests are recognized property forms; how ownerships of movables and immovables can legally change hands; how popular is the German conceptual framework under which two types of contracts are involved in all sales and whether the validity of the first contract affects the second contract; whether real estate registration is absolute; and whether delivery is required to transfer titles to chattels. This Article identifies the patterns for adopting certain wealth transfer doctrines in the world. Using clustering analysis, this Article categorizes coded jurisdictions into eight groups. China, Russia, and Scotland are idiosyncratic, and as a group they are quite different from all other countries. English law, French law, and German law are the three main paradigms in terms of wealth transfer doctrines. Notably, however, the statistical model does not group New 3. LLSV distinguishes the world legal system (at least the dozens of countries they studied) into only four groups (common law, French civil law, German civil law, and Scandinavian civil law). See LLSV, Law and Finance, supra note 2, at 1115. While LLSV spelled out the sources for their coding, which is a multi-volume reference handbook containing a short overview of major laws in each jurisdiction and a list of first- and second-hand materials, id. at 1119, they were not clear about the coding scheme—that is, what is the basis for classifying world legal systems into exactly four groups. They identified 42 common-law countries, which are more than my own prior. See LLSV, Legal Origins, supra note 2, at 288. But the LLSV data downloaded from Prof. Andrei Shleifer’s webpage offers inconsistent classification of countries (In the Table 1 Worksheet of the data, 61 of the 189 countries were identified as common-law countries; in the Table 3 Worksheet of the data, 51 of the 167 countries were identified as common-law countries). Andrei Shleifer, Publications, HARV. U., https://scholar.harvard.edu/shleifer/publications (last visited Apr. 9, 2018) (using the dataset generated from the studies discussed in LLSV’s article The Economic Consequences of Legal Origins). LLSV claimed, without offering any evidence or citing any materials, that former communist countries reverted back to French or German law after
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