Arrunada Seminar: Corrado Malberti – The Different Dimensions of Recordation and Registration
16 January 2013 at 5:00 am Lasse 1 comment
| Corrado Malberti |
The Different Dimensions of Recordation and Registration
Concerning the characteristics of registration and recordation, I think that the classification made by professor Arruñada should adopt a more nuanced perspective. In fact, the distinction between, on the one hand, recordation systems where deeds are deposited to facilitate their inspection and that rely on what professor Arruñada calls a property rule, and, on the other hand, registration systems that define rights and that give preference to what professor Arruñada calls a property rule, is probably sacrificing important complexities that exist in the public registers falling in each of these two categories.
In fact, legal scholarship highlighted that the dimensions that should be taken into account in classifying public registers are, at least, three:
- the first dimension concerns what is entered in the register, either a deed or a right;
- a second dimension is related to the effects of the entry in the register, either the entry simply regulates the conflicts between two or more acquirers from the same owner, or the entry defines the right;
- finally, the third dimension concerns the role played by bad faith in making a valid entry in the public register.
The combination of these different dimensions makes the dichotomy between registration and recordation more intricate. And it has been argued that, from a legal perspective, it would be impossible to give to these categories anything more than a didactic relevance. In addition, it should also be noted that, even when classified along these three dimensions, in certain cases public registers adopt peculiar principles (e.g. the sometimes radically different rules governing adverse possession could be taken as evidence of how peculiar the practical results of each legal system could be).
Professor Arruñada makes important efforts in trying to include many of these nuances in his analysis. Yet, for many public registers it is difficult to deny the existing contaminations between recordation and registration.
Corrado Malberti, Professor in Commercial Law. University of Luxembourg. Commissione Studi Consiglio Nazionale del Notariato
Entry filed under: - Lien -, Institutions, Law and Economics, New Institutional Economics, Theory of the Firm.
Organizations and Markets 
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Benito Arruñada | 24 January 2013 at 3:00 am
Thank you for the post. I am inclined to think that our discrepancies mainly originate from the different methodologies used by economists and legal scholars when analyzing institutions. My aim is to identify their function—how they reduce transaction costs in a market economy—and, based on that understanding, learn how to measure and design them. For this effort to be effective, it requires abstraction, which can be more or less fruitful depending no so much on the detail of the representation but on the explanatory power and predictive ability of the analysis. Nuances still play a role, however, but, instead of providing representational detail, they serve to check the analysis for consistency, as I do, for example, when giving details to explain exceptions that confirm the rule or noting the presence of predictable qualitative regularities in different legal systems.
Specifically, with respect to systems of recordation and registration, both are standard concepts in property law and land titling. I only identify what I think are their key elements, something that legal scholarship, in its effort to provide a detailed account, sometimes misses. This is understandable, because detail plays a different role in law than in law & economics. In law, detail is indispensable for practice: it is often decisive and sometimes there is never too much of it. On the contrary, in the economic analysis of law, detail must be contained; otherwise it may even become a burden. Thus, surely I have sacrificed “important complexities” (however, not, I think, the ones mentioned in the post); but in any case such sacrifice and in general the value of the analysis must be judged on the basis of predictive ability instead of descriptive comprehensiveness.