Convergence and divergence: the treatment of certain aspects of real property under the Civil Codes of Qatar and California

摘要

This paper compares and contrasts the treatment of certain aspects of real property under the civil codes of Qatar and California, two jurisdictions with very different histories and cultures but somewhat less different economies and environments. Despite their different starting points, the two civil codes have created similar, albeit far from identical, structures to achieve similar goals. This article explores the premise that similar environments - physical, economic, or otherwise - exert, in the long run, a greater pressure on the development of the law governing real property than do history and culture. The real property regimes of Qatar and California converge in many aspects. The nature of the real property right, while couched in civil law terms in one and common law terms in the other, includes in each case the rights of exclusion, use, enjoyment, and alienability. The forms of ownership in each vary according to legal tradition, with Qatar using the simpler civil law forms while California indulges in the more Churrigueresque edifice of estates and future interests; nonetheless, both ultimately achieve more or less the same ends. The forms of co-ownership differ to some extent, while private limitations on property rights differ rather less. The differences in these areas can be traced to cultural differences and to differences inherited by the two legal systems in question, each itself a hybrid of sorts, from the common law and civil law traditions. The greatest points of divergence, however, spring from differences in environment. The different treatment of ownership of land by foreigners provides an example of considerable divergence. On the other hand, the concept of waqf in Islamic law, incorporated into the Qatar Civil Code, bears a greater resemblance to the Anglo-American concept of charitable trust (although the two may have arisen independently) than it does to anything in the civil law tradition. This article considers the relevant provisions of the two civil codes in order to identify and, where possible, explain such divergences and convergences, in the hopes of assisting attorneys and scholars versed in either.