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Property Law
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Notes on the chapter on "Property Law" from the "Introduction to Law" book. Clear, concise, and straight-forward notes. No waste of time.
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PROPERTY LAW1.Property Rights and Property Law
Different rights in private law:
- Right against a particular person (such as the tort-feasor or the
contract partner):
The owner of a car that has been damaged unlawfully by
someone else has a right against the tort-feasor to be
compensated
The seller of a car has the right against the buyer of the car
to be paid the price for which the car was sold
- Rights on a tangible object (the car):
The owner of a car has a right to the car itself
1.1. Property rights
Absolute and relative rights:
- Personal rights or relative rights = rights against a particular person
- Absolute rights = rights that are not against a particular person,
always pertain to “something” called the object of the right
The objects of rights mat be tangible (land, buildings, car,
and books)
They may also be intangible (trademarks, intellectual
property including copyrights and patents, shares, and claims)
Absolute rights = property rights governed by property law
See fig. 5.1 p.80
Rights in private law
Relative or Absolute or
Personal rights Property rights
Rights in tangibles Rights in intangibles
1
,Effects erga omnes:
Property rights are not direct at any particular person, but because they
pertain to an object, they have effect erga omnes = refers to an effect
against “everyone”
- Property rights = rights with effect against everyone
this effect is a defining characteristic of property rights = property
law (the law that governs property rights) differs from the law of
contract which deals with legal relations between the contract
parties only
Droit de suite:
Droit de suite literally means “right to follow” and states that:
if the object of a right falls into the hands of a person who does not hold
the right, the right holder can exercise his right against that person
Example of the property right of usufruct on a house
which belongs to someone else: the right on the house
“follows” the house, regardless of whoever the owner is
1.2. Central Questions
Why should there be property rights and property law?
What are the main types of property rights in the common law and
in the civil law traditions?
How are these rights created? How are they transferred from one
holder to another? How are they terminated?
How will property law develop, in particular in light of further
integration within the European Union?
2.Why Property Rights?
Why should there be property rights at all? Would it not better if everyone
were allowed to use everything?
theoretical perspective: freedom of ownership
economic perspective: tragedy of the commons
2
, Freedom of Ownership:
- Property rights facilitate the free circulation of goods by enabling
those goods to change owners
- Free market economy functions on the basis of freedom of
ownership
every individual is free to acquire and dispose of their own
property
- Right of ownership and other property rights are the means by
which individuals hold entitlement to their objects
- Property law establishes the presumption that all objects and things
are freely transferable unless explicitly prohibited
Tragedy of the Commons:
Economic theory is illustrated by the “tragedy of the commons”, explaining
why it is good to allow ownership of material objects, as a primary right:
- Economic problem in which every individual tries to reap the
greatest benefit from a given resource. As the demand for the
resource overwhelms the supply (D > S), every individual who
consumes an additional unit directly harms others who can no
longer enjoy the benefits. Generally, the resource of interest is easily
available to all individuals; the tragedy of the commons occurs when
individuals neglect the well-being of society in the pursuit of
personal gain.
3.Property Rights in Civil Law and Common
Law
Different kinds of property rights:
- Tangibles (ownership, title to land and to chattels, mortgage,
servitudes)
- Intangibles or “intellectual property rights” (copyright, patents, and
trademarks)
3
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