Alba Kalayci Nicault
2036559
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
