property law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual prope ...

, alienation is the voluntary act of an owner of some

property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, re ...

to convey or transfer the property to another. Alienability is the quality of being alienable, i.e., the capacity for a piece of property or a

property right The right to property, or the right to own property (cf. ownership), is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typicall ...

to be sold or otherwise transferred from one party to another. Most property is alienable, but some may be subject to restraints on alienation. Some objects are now regarded as ineligible for becoming property and thus termed inalienable, such as people and body parts.

Aboriginal title Aboriginal title is a common law doctrine that the Indigenous land rights, land rights of indigenous peoples to customary land, customary tenure persist after the assumption of sovereignty to that land by another Colonization, colonising state. ...

is one example of inalienability (save to

the Crown The Crown is a political concept used in Commonwealth realms. Depending on the context used, it generally refers to the entirety of the State (polity), state (or in federal realms, the relevant level of government in that state), the executive ...

) in

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions. A similar concept is '' non-transferability'', such as tickets. Rights commonly described as a ''

licence A license (American English) or licence (Commonwealth English) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit). A license is granted by a party (licensor) to another part ...

'' or permit are generally only personal and are not assignable. However, they are alienable in the sense that they can generally be surrendered. In England under the

feudal system Feudalism, also known as the feudal system, was a combination of legal, economic, military, cultural, and political customs that flourished in medieval Europe from the 9th to 15th centuries. Broadly defined, it was a way of structuring socie ...

, land was generally transferred by

subinfeudation In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands. The tenants were termed ...

, and alienation required license from the

overlord An overlord in the English feudal system was a lord of a manor who had subinfeudated a particular manor, estate or fee, to a tenant. The tenant thenceforth owed to the overlord one of a variety of services, usually military service or ...

. When

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...

published ''Commentaries on the Laws of England'' between 1765 and 1769, he described the principal object of English real property laws as the law of inheritance, which maintained the cohesiveness and integrity of estates through generations and thus secured political power within families. In 1833, Justice

Joseph Story Joseph Story (September18, 1779September10, 1845) was an American lawyer, jurist, and politician who served as an associate justice of the Supreme Court of the United States from 1812 to 1845. He is most remembered for his opinions in ''Martin ...

in his ''Commentaries on the Constitution of the United States'' linked landowners' jealous watchfulness of their rights and spirit of resistance in the

American Revolutionary War The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was the armed conflict that comprised the final eight years of the broader American Revolution, in which Am ...

with the system of American institutions which recorded and clarified land title and expanded landed markets. Other early American legal commentators who praised the simple and relatively inexpensive conveyancing system in the new United States included Zaphaniah Swift, Daniel Webster and James Kent. English common law traditionally protected freehold landowners from unsecured creditors. In 1732, the

Parliament of Great Britain The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union 1707, Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a ...

passed legislation entitled “The Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America”, sometimes known as the Debt Recovery Act 1732 ( 5 Geo. 2. c. 7), which required all land and slave property in

British America British America collectively refers to various British colonization of the Americas, colonies of Kingdom of Great Britain, Great Britain and its predecessors states in the Americas prior to the conclusion of the American Revolutionary War in 1 ...

to be treated as chattel for debt collection purposes. It thus removed the shield from creditors which had protected large, landed estates (and which continued to protect those estates in Britain). However, the act was amended within a decade to allow colonial legislatures, particularly in the southern American colonies, to again protect real estate transferred in

fee tail In English common law, fee tail or entail is a form of trust, established by deed or settlement, that restricts the sale or inheritance of an estate in real property and prevents that property from being sold, devised by will, or otherwise ali ...

or inherited through

primogeniture Primogeniture () is the right, by law or custom, of the firstborn Legitimacy (family law), legitimate child to inheritance, inherit all or most of their parent's estate (law), estate in preference to shared inheritance among all or some childre ...

. Thus, colonies which relied on enslaved labor adopted legislation which promoted the liquidity of slave property. Although Virginia repealed laws supporting primogeniture and the fee tail in 1776, it refused to extend the Debt Recovery Act 1732 after the American Revolution, and passed further legislation which protected real estate from creditors. Other states adopted similar legislation (some specifically protected homesteads from creditors), but the recording systems adopted throughout the new American states led to the more commodified and transferable development of American property law. In 1797, Parliament passed the Negroes Act 1797 ( 37 Geo. 3. c. 119) which repealed the Debt Recovery Act 1732 with respect to slaves in the remaining colonies. Nonetheless, by 1806, abolition pamphleteers in Britain continued to criticize as cruel the act's sanction of slave auctions to satisfy a slaveowner's secured as well as unsecured debts.

References

{{DEFAULTSORT:Alienation (Property Law) Property law

See also

References