Securities as Property

Securities as assets have been fitted into the traditional property law construct through the makeup of “a thing”. The invention of bearer documents facilitate the treatment of these assets as property. The document, which represents the underlying rights in the security, objectifies the rights in the asset and fits them into the property law structure. By giving the document the rights in the underlying asset, it can easily be held and traded with. It can also easily be identified. In relation to the intermediary, however, interests in securities bear a lot of similarity with debt as they are not related to any particular object.²

As this book shows, the doctrine of specificity causes severe problems in relation to the developments in the financial markets. This Chapter examines two different questions: Sect. 8.2 analyses the question of securities and fungibility and the thesis developed by Roy Goode that shares are not fungibles as they represent coownership of a single identified asset – the share capital. The Chapter ends with a discussion on the doctrine of specificity and its objectives and function as the dividing pillar between rights in rem and rights in personam.