Yun-chien Chang (Institutum Iurisprudentiae, Academia Sinica) has posted The Inefficiency of the Accession Doctrine: With a Response to Prof. Thomas Merrill on SSRN. Here is the abstract:
- The accession doctrine in property law exists in both common-law countries and Civil Law countries. The prior literature does not question, and even makes a case for, the efficiency of the accession doctrine. Using a normative standard that the law should allocate property rights to the party who values them the most, I argue that the accession doctrine fails this test, because efficiency is ensured when we compare the ex ante economic values of the original owner and the improver, not comparing the fair market value of the processed properties before and after the improvements. I also examine whether there are other economic reasons to justify the deviation from the property rule (and thus the normative standard), finding that none of the examined theses makes economic sense. Therefore, I argue that the accession doctrine should be abolished, or at the very least, used more prudently and only rarely – I propose three ways to narrow the applicability of the accession doctrine. I also respond to Thomas Merrill’s recent advocacy of the accession principle, a broader concept than the accession doctrine. I argue that the economic rationales behind the accession principle are not applicable to the accession doctrine.