Week 1
Reading: Van Erp & Akkermans 2012, Ius Commune Casebook Property Law
• Introduction, pp. 31-36
• Chapter 1, pp. 37-53 (till II.).
• Chapter 2, pp. 97-105 (till I.A.1.c).
• Chapter 3, pp. 211-239 (till I.A.5), excluding I.A.3.
• Chapter 4, pp. 365-384 (excluding the parts on Austrian law).
Introduction (p. 31-36)
Property Law
• The law that is dealing with things
• These things may either be tangible (corporal) or intangible (incorporeal)
Trust: A product of the jurisdiction called ‘equity’. Involve no division of rights but the
subjection of the right-holder to certain duties in the way that right is exercised (a
class of their own)
Background knowledge
• France
• Property law is part of the large concept of patrimonial law = the law dealing
with patrimony, the complete body of assets and debts a person has
• Patrimonial law is dealt with in three books of the French Civil Code (Code
Civil): (1) the law of obligations; (2) the law of property and (3) intellectual
property law
• Central Concept in the French Code Civil (Cciv): The concept of ownership
• The first book, titled ‘Of Persons’--> The answer to the question about who
can be entitled to ownership
• *** Key provision in the Code (the definition of ownership): ‘Ownership is the
right to enjoy and dispose of objects in the most complete manner, provided
they are not used in a way prohibited by statutes or regulations’ (Art 544 Cciv)
• The French Civil Code mentions the property rights which were recognised in
1804, as Article 543 Cciv provides that ‘on an object one may have a right of
ownership, a mere right of enjoyment or only a right of servitude’ → Note that
this enumeration is not sufficient accurate to be exhaustive nowadays!
• Germany
• German Civil Code (BGB)
• Stricter than the French Civil Code, operates on a sharp distinction between
the law of obligations and the law of property → Known as the principle of
separation
• Include ownership as the most important right and usufruct and servitudes,
pledge and hypothec as the main limited property rights
• There are also additional property rights → A special property security right
• Has made use of a trust-like instrument (management devices in the form of a
Treuhand)
• Very abstract, not always in line with reality
• Content of German property law is similar to the content of French law:
Primary property right in the form of the right of ownership
• Unlike French law, para 903 BGB restricts ownership to corporeal objects
only. Ownership of claims is impossible
• Strictly adheres to the numerous clauses of property rights
, • The Netherlands
• Intermediate position between French and German law
• Strongly followed the German tradition
• Restriction of ownership to corporeal objects
• Strict numerus clausus of property rights
• English and Wales
• No civil codes, no code of property law
• The law of property is an amalgam of statutory and judge-made rules
• Main division is between real property and personal property
• Real property: Relates to land
• Personal property: Things other than land
• Topic of intellectual property is considered as sui generis, not part of either
real or personal property
• Real property -- Has a feudal structure, gradually ripped out by statute over
the centuries. System is judge-made
• Personal property -- Little statutory intervention, the vast majority of the law is
to be gleaned from the cases. Does not have a feudal basis, chattels never
being subject to that system
Similarity: Common law is similar to the civil law in having a numerus clausus = a
closed list of property rights
Difference: Common law has nothing as ambitious as a concept of ownership but
rights to possession
Chapter I: General issues -- Setting the scene
I.Introductory Remarks
Property Law is the law that deals with entitlements to property
• Property = An object, e.g. a car/ a table. But also land and buildings such as
houses constructed on that land
• Also concerns intangible or incorporeal ‘objects’, e.g. intellectual property and
rights to performance by another party arising from a contract (claims)
• There is always demand for these objects → Scarcity→ Rules on the
entitlement to these objects individuals may hold and on how these
entitlements are created, transferred and destroyed
• These entitlements are different from other rights as they are created in
respect to an object and non vis-a-vis specific other persons
• Property rights have effect against third parties by their nature
• Personal rights → Rights arising from a contract, also concern an object but
are generally only binding between two or more specific parties
• What precisely is included in property law differs from country to country/ from
legal system to legal system
I.A What is ‘Property Law’
• Concerns rights that a person has against a considerable group of other
persons concerning an object
• Includes land law, the law of personal property, and the law relating to claims,
trust law and the law on security rights
,German
• Concept of an object is the essential foundation of property law, which is
defined in 90 BGB as a physical thing
• Considers the concept of a thing to be an overarching notion which
encompasses the (corporeal) objects and (incorporeal) rights
• The concept of an object is determined by its ‘physicality’ feature
• There are some boundary issues regarding incorporeal objects, e.g. electric
energy is not considered an object but it is possible for a computer program to
be an object, if it is saved on a data carrier
• Animals were always treated as objects, they are treated in accordance with
the rules on moveables (90a BGB)
• Human body of a living person is not an object, parts of the human body that
are separated from a living body are objects, e.g. cut off hair, donated blood,
transplanted organs
• Objects for public use, e.g. public roads, streets or the beach are commonly
owned by public sector bodies. NOTE: Private ownership of these objects can
be superimposed and limited by public law competence.
France
Three Features
1. A patrimony is limited to economic values
• All patrimonial components share the possibility of being converted into
money
• The elements belonging to a patrimony, have a pecuniary value, can be taken
from their owner in order to be transferred inter vivos ---> Can be sold or
donated
• They can also be seized by the unpaid creditor who will recover the debt by
the sale of the object. Upon the death of the owner, they pass to his heirs →
Transmissible mortis causa.
• All the rights which cannot be converted into money thus escape the
patrimony, and the same is true for all values which are too intimately linked
to the person to be able to participate in the economic traffic
• Political rights of the citizen, as well as personal rights, are extra-patrimonial
• The patrimonial and extra-patrimonial categories seem to be divided in
opposition
2. The composition of a patrimony is as general as possible
• Combines all rights and all obligations of any one person
• Cannot be defined and its content cannot be identified without reference to its
owner
• Active side of the patrimony: Extended to all future assets, will not belong to
the owner until a later time
• Passive side: Presents the same general feature, comprises all the debs of its
owner. All of the latter must be placed next to his assets. Debts are
patrimonial.
3. Tangible movable things generally have a legal regime that is less
precise and developed than that of immovable things
• The free circulation of moveable things has only been maintained because of
legislative and doctrinal discretion. These goods are only seized by law in the
, moment when they become objects of contracts or more generally of transfer
so the common contract law applies
• The principles governing tangible movable goods can seem inconsistent by
any analysis
• The fonds de commerce can be defined as the intangible movable thing
created by the reunion of the necessary elements of attraction and
conservation of a commercial clientele in the patrimony of the commercial
owner
Distinction between personal rights and property rights
1. Personal rights do not bind every other person, they are not effective erga
omnes
• Personal rights only have effect between parties, it concerns duties
(obligations) for one or more specific debtors
• A third person cannot be held bound to satisfy a debtor’s debt
2. The right to follow and the right of preference
• A property right rests immediately and direct on the physical thing which is its
object and remains resting on that thing, wherever it is located and in whose
hands it may have passed from a substantive law viewpoint
• The person entitled to a property right has a right to follow the object of his
right and derives from this right the possibility to demand the thing by a
property actio from who holds the thing in his hands
• The rights of preference: A person entitled to a property right that rests on a
specific thing has priority over all property rights of a later date on that same
thing and over all creditors whose calais are not secured by a property
security right → Important when the patrimony of the debtors is insufficient to
pay all debts
English and Wales
Providing credits with security: e.g. Mortgage and hire purchase
• The law enables the creditor to obtain this security, reduces the risk of giving
credit and tends to improve the terms offered, typically increasing the amount
of a loan, by extending the period for which it is made, or by lowering the
interest rate.
If the thing is of a fairly permanent nature like a house or shares
• Owner may want to distribute it among others either commercially by charging
a rent or by way of gift or bequest to family and friends
• The law of property determines the types of interest which will be treated as
proprietary, being more than merely personal, familial or contractual and it
spells out the consequences of a finding that a particular interest is proprietary
Brief comparison of ownership and estate
1. Different in application as well as in theory
• They are not alternate names for the same or similar things
• A legal system in which ownership is a basic legal concept: Developed
institutions and interests paralleling those of the common law
2. The attitude that ownership is indivisible has played an important role in this
development
