Securities within the realm of private law : a theoretical and practical analysis of the legal nature of shares

[摘要] ENGLISH ABSTRACT : This thesis provides practical and theoretical perspectives on the legal nature ofshares. In South Africa and beyond, shares have undergone significanttransformation over the last decades. They are held and transferred through acomplex net of intermediaries. While commercial practice and financial markets havedevised efficient and pragmatic holding and transfer mechanisms, the changesbrought about by computerisation and a pervasive model of systemic intermediationhave unsettled the existing consensus on the legal, conceptual underpinning ofshares. The thesis therefore aims to provide clarity on the legal nature of holdingmechanisms, the legal nature of transfer mechanisms and the legal nature of sharesviewed more abstractly within the context of the taxonomy of private law.The thesis approaches the first two questions historically and comparatively to showhow the legal understanding of holding and transfer mechanisms has changed. Whilethe nature of intermediation has changed dramatically, the thesis shows that the legalconcepts and mechanisms underlying the holding of shares predominantly haveproved to be sufficiently adaptable. This cannot be said to be the case whenconsidering the legal nature of transfer mechanisms. Traditional transfermechanisms, such as assignment, negotiation and delivery have largely beenreplaced by mechanical, account-based transfer ones. On this basis, the thesissuggests that the continued application of the principles of cession to a South Africananalysis of transfer should be scrutinised in a more fundamental fashion.To complement the discussion, it is shown that conceptual alternatives to traditionaldoctrinal thinking can be found in a functional approach to legal reasoning and in aprocedural 'law of accounts that synthesises the common characteristics shared bymany rights held on accounts. Moreover, two theoretical models are considered thatshed light on the question whether systemic intermediation leads to the creation ofnew and multiple assets which derive from a share and are held by lower-tierintermediaries and ultimate investors in place of the share itself. This approach,made popular by the introduction of 'securities entitlements by Article 8 of the UCCand also reflected in the notion of beneficial interests of a trust in English law, can beexplained as establishing rights against the rights of a higher-tier intermediary. Theserights function as assets. On the basis of the burdening of rights model, borrowed from German law, the application of the rights-against-rights approach to SouthAfrican law is rejected, however. The thesis concludes that South African lawevidences neither a multiplication of assets nor a division of ownership in relation tointermediaries.Lastly, the thesis considers the assertion that shares are, or should be, property or'property-like to provide adequate protection to investors. An enquiry into the legalnature of shares is the overarching theme of the thesis that draws together itsdifferent parts. The thesis proposes an explanatory model that can be used todetermine whether and under which circumstances obligations can have absoluteeffect in relation to third parties. It asserts that shares are obligations, but that aproper evaluation of the internal sphere (the issuer-investor bond) shows that sharesare simultaneously object-like. The explanatory model suggests that obligations ofthis kind can serve as objects of other obligations (the external sphere) which mayconsequently have real or limited-real effect in relation to third-parties. The modeltherefore narrates the interrelation between property and obligations without callinginto question the well-established fact that shares are personal rights, albeit withlimited real effect.

[发布机构] Stellenbosch University