취소, 소유권, 그리고 코먼로

The purpose of this article is to refute the idea that rescission of a contract of sale can have any proprietary consequences at Common Law. The origin of the common law right to rescind the contract and thereby revest title can be traced back to the judgment of Parke B. in Load v Green, decided in 1846. And through the examination of the historical roots of the doctrine that title revests on the rescission of the contact, which showed that it was invented by Parke B. in Load v Green using a case, Parker v Patrick, we can find that Parker v Patrick is in fact an authority in favour of the abstractionist approach. Moreover, the proprietary response was anomalous when lined up alongside other common law responses to unjust enrichment and wrongdoing, which in every other case only personal. As a result, the view in Loard v Green is unsound because it fails to take account of the principle of abstraction. It is well known that title to land cannot pass by reason of the contract alone and that a deed or a registered transfer is necessary. This is also true in case of the sale of goods. For example, in Singh v Ali, it was held that though a contract for the sale of a lorry was void for illegality, title to the lorry nevertheless passed on its delivery to the purchaser. In conclusion, the Load v Green was wrongly decided. Although a defrauded vendor should be allowed to rescind his contract of sale, it should not carry with it any revesting of title. The same applies to the case where the contract is void from the start. In the event of a purchaser's insolvency, the defrauded vendor should simply join the queue of unsecured creditors.