This book carries out a non-traditional comparative study of a traditional topic, to see to what extent the non-unified rules in English law and vague rules in Chinese law can be fitted into the conceptual framework of separation and abstraction which originates in German law. It therefore comprises two main questions: first, how title/ownership is conveyed inter vivos consensually and second, whether the validity of conveyance is infected by a nullified or rescinded underlying basis. This book also revisits debates over justifications between abstraction and causality, in particular theories of swollen assets, involuntary assumption of risk, causality plus bona fide acquisition, and property of sentimental value. It is suggested that the theory of detecting opportunity can serve as a positive argument for abstraction.
The earlier version of this monograph was written during my study at the University of Oxford for the degree of Doctor of Philosophy in Law. Considering that my viva voce was done in the summer of 2018, and that many of the authorities of Chinese law have been replaced by provisions in the Chinese Civil Code of 2020 and post-codification judicial interpretations, I have made relevant updates and additions of Chinese and English primary and secondary materials in this book during my current post as an Assistant Professor at Renmin Law School. I therefore would like to record my enormous thanks to William Swadling for giving me generous guidance and the precious opportunity to study and research at Brasenose College and Faculty of Law. I would also like to record a significant debt of gratitude to Simon Douglas, Xinjun Fang, Joshua Getzler, Manuel Gietzelt, James Goudkamp, Birke Häcker, Thomas Krebs, Helmut Koziol, Vincent Sagaert, Alexander Scheuch, Wing So, Willem van Boom, Yi Wang and Zhu Wang for their helpful comments during various stages of my writing. I am also indebted to Lei Chen, Thalien Colenbrander, Kate Elliott and Ingeborg van der Laan for their kind support in adding this book to Brill’s Chinese and Comparative Law Series.
Zhicheng Wu
School of Law
Renmin University of China