from William B. Stoebuck & Dale A. Whitman,
The Law of Property (3d ed. 2000), pp. 792-93
Equitable conversion as a risk-allocation tool for short-term earnest money contracts is . . . questionable in practical terms, at least in cases of physical damage occurring while the vendor is in possession. First, it rarely comports with lay parties' expectations; they generally assume the risk is on the vendor. Second, the vendor is far more likely than the purchaser to carry insurance against the loss, since the vendor has usually owned the land for some time, while the buyer thinks of his or her ownership as not yet having begun. Third, until the purchaser takes possession the vendor is in the better position to take whatever precautions might prevent the occurrence of the loss. For these reasons, equitable conversion's broad imposition of risk on the buyer has been resoundingly condemned by nearly all academic writers who have considered it. In practice it causes much less trouble than one might expect, mainly because of the prevalence of casualty insurance and the fact that the parties have the power to make their own agreement in contradiction of equitable conversion's rule. Nearly all printed form sale contracts do so, usually imposing the risk on the vendor. Thus, equitable conversion is primarily a trap for amateur conveyancers.
(footnotes omitted; emphasis added)
Questions:
1) Do you see why the vendor might agree -- or even suggest -- that he
take back the risk of loss from the vendee? (So maybe the word "imposing"
in the next-to-last sentence of the quote is misleading.)
2) Should all property rules be default rules?
3) Does the name Ronald Coase sound familiar?