Summary of Cases, Materials and Text on Property Law by Sjef van Erp + Class Notes
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Course
Property Law (620271B6)
Institution
Tilburg University (UVT)
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Cases, Materials and Text on Property Law
An inclusive summary of the book Cases, Materials and Text on Property Law by Sjef van Erp used in the course of Property Law. The summary also includes notes from class.
Property Law Summary - Global Law - Sjef van Erp and Bram Akkermans
Property Law Summary, Quarter 4
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Global Law
Property Law (620271B6)
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Property Law
Meeting 1: The Concept of Property Law and Property Rights
On-demand video: What is property law?
(https://www.youtube.com/watch?v=SxOeNbHNJbs)
Property right: subject – right – object
- Corporeal v Incorporeal
- Corporeal (tangible)
o You can touch these things
o May either be immovable (not technical) or movable (bikes, computers)
o Book page 367
o Corporeal are further divided into movables or immovables for civil law
o In English law, this is divided into land and personal property
- Incorporeal (intangible – do not physically exist)
o A claim
▪ From a contract an object of property law can arise
▪ A lends 100 euros to B but wants it back
▪ B needs to repay the 100 euros
▪ The repayment claim is the object of property law
o Intellectual property
▪ Copyrights
▪ Industrial rights
● Trademark
● Patents (the invention is protected)
- The Netherlands and Germany only consider tangible things property law
- France: property law is considered for all things, irrespective of whether you can
touch them or not
- England and Wales: ‘land’
- Contract law v Property law
- Contract law: personal rights -> rights and obligations that you can have against one
or more specific people
o Vis a vis one another, can create rights and obligations that are very
extensive or minor, it is up to them
- Property law: against the world (an undefined group), erga omnes (strong rights)
o Most legal systems limit these to a specific set of rights
o Roughly 8 in each legal system
o Very strictly written down, very little party autonomy
- The effect of property law is much greater than the effect that contract law may
have
- Contract law is inter parties, property law is erga omnes
- Choice is limited in property law, extensive in contract law
- Freedom to decide on contract unless the law forbids it, standardized in property law
, - Contract law and Property law
- Sales agreement triggers the transfer of ownership
- Transfer of property rights from party a to party b
- Comes from a sales agreement or a reason for transfer (causa – an agreement that is
governed by contract law)
- Property rights allow for special arrangements though, under a ‘ground lease’ parties
can agree on price, term and maintenance
- Relation with Tort law
- Both create obligations
- Owners are liable if their dangerous objects cause damage to others
Readings for meeting 1
- Patrimony: the complete body of assets and debts a person has (pages 40-41)
o Limited to economic values, as general as possible
- Property law is the law that deals with entitlements to property
- Page 38
- Numerus clausus: limits the number and content of property rights that are available
in a property law system
- Transparency: ensures that third parties can determine which person(s) hold a
property right and as to which a property right is held
Classic approaches to Property Law
- Page 41 (France)
- Tangible movable things generally have a less precise and developed legal regime
than immovables
- Tangible goods are only seized by the law when they are objects of contracts (sale,
rent) or of transfer
- Intangible movable thing: fonds de commerce -> created by the reunion of the
necessary elements of attraction and conversation of a commercial clientele in the
patrimony of the commercial owner
- Pages 42-43 (England and Wales)
- Property law enables the creditor to obtain security
- Reduces the risk of giving credit and tends to improve the terms offered typically by
increasing the amount of a loan, by extending the period for which it is made, or by
lowering the interest rate
- E.g.: paying for a house in installments
- ‘default’ rules: operate unless we expressly design our own scheme
- Mandatory rules: concern the use of transfer of land, especially by lease
- Property law protects the rights of the holders of these interests
- Also deals with the transfer of property, repackaging of proprietary interests
whether inter vivos or on death
- The Nature of Property Rights: Pages 51-53
, - Property rights are stronger than contractual rights, claims for damages on the basis
tort, and the right to repayment
- Property rights are ‘against the world’ – erga omnes
- Absolute effect
- Personal rights correspond with personal duties, but property rights correspond with
duties resting on everyone
o Droit de suite: the right can be claimed against anyone who is in control of
the object
o Droit de préférence: the right is stronger than any person right with regard to
the object
- Legal systems limit the number and content of property rights (numerus clausus
principle)
- Also require that third parties must be adequately informed about existence
- Application of principles is guided by legal policies
- Nemo dat or nemo plus iris rule: one cannot transfer more than one has
- Prior tempore rule: older property rights have priority over younger property rights,
with the exception of a younger right created with the consent of the older property
right
- Final rule: any property right is given special protection, given its strong nature
- For repayments of loans -> accessority rule: the existence of the security rights
depends upon the existence of an underlying debt
- Property rights follow a basic order
o Primary rights: confers the most extensive property right on a person
o Secondary rights: confer lesser property rights on persons
o Tertiary rights: representing property rights in statu nascendi
The Protection of Property Rights
- Page 98
- Civil law countries distinguish between ownership and possession
- English law: the protection of property rights means primarily the protection of
possession
- Page 99
- Ownership and limited property rights deal with the legal entitlements a person may
have with respect to an object
- Possession relates primarily to the factual control of an object
- Legal presumption that the possessor of a movable object is also its owner (Art. 2276
Code Civil, s. 1006 BGB)
o Possession of an object indicates the existence of a property right and thus,
make it public
- Pages 100-101 (France)
- Protection of possession is regulated in 2278 and 2279 Code Civil
- Article 2255 Cciv defines possession, which relates to corporeal objects and to claims
which are incorporated in a corporeal title
- Possession requires 2 factors:
o The actual control of the object (corpus)
, o The will to hold the object as an owner respectively as the holder of a limited
property right (animus domini or animus rem sibi habendi, Art. 2261 Cciv)
- Holding an object for another is only detention – détention précaire
- 2256 Cciv: one is always presumed to possess for oneself and in the capacity of an
owner
- Possession is terminated when either the animus or corpus is lost
- Pages 104-105 (Germany)
- Does not provide for a general definition of possession, but rather concentrates on
the aspect of the protection of possession
- Possession understood in a broad sense, as the actual control of a corporeal object
- Different types of possession
o Eigenbesitz: a person who holds an object for himself, no matter whether he
is the rightful owner (s. 872 BGB)
o Fremdbesitz: a person who holds an object for another
o Direct (unmittelbarer): has actual control of the object (control is acquired, s.
854(1) BGB)
▪ Acquired by way of original acquisition or transfer
▪ Former: Acquirer must have the ‘natural’ will to acquire possession
▪ Sufficient that the acquirer has factual capacity
▪ Latter: transferor must also have ‘natural’ will
▪ Only takes place is the transferor gives his possession up
▪ Terminated by loss of actual control
o Indirect (mittelbarer Besitz): exercises his possession not in person, but by an
intermediary (Besitzmittler, a Fremdbesitz)
▪ Creation of indirect possession is the result of a legal transaction
▪ Terminated if the direct possessor loses the possession, or if the
direct possessor shows by way of a perceptible act that he no longer
accepts the possession of the indirect possessor, or if the indirect
possessor loses the claim for restoration of property
- Types of Property Rights
- Page 213 (Civil Law)
- Property rights are divided into three main groups:
o Rights of real servitude
o Rights of personal servitude
o Rights of emphyteusis and superficies
- Most extensive right: ownership
- Page 215
- French law: Article 544 Code Civil
o Distinguishes between three powers of the owner
▪ The right to use (usus)
▪ The right to enjoy, particularly the fruits (fructus)
▪ The right to alienate (absus)
- German law: s. 903 BGB
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