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Two Hundred Years Of Spite, Nadav Shoked

Northwestern University Law Review

Spite’s role in property law is garnering much academic attention. Yet spite remains strikingly misunderstood. Commentators partaking in the reinvigorated debate over property rights’ nature often point at the law’s prohibition on spiteful uses of property by owners as indicating that property law is sensitive to individuals’ goals and attitudes when distributing powers. This assertion draws on a long line of judicial, legislative, and scholarly pronouncements to the effect that the prohibition on spite is an intent-based, subjective test banning acts whose motivation is malicious. This Article illustrates that this perception is deeply flawed—descriptively and normatively. Exploring the forgotten history …