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Yaëll Emerich

It is often argued that it is impossible to make sense of the trust in the language of the civil law, as trust would be the very antithesis of civilian ownership. According to the International Encyclopedia of Comparative Law trust is: “a legal device developed in England whereby ownership of property is split between a person known as a trustee, who has the rights and powers of an owner, and a beneficiary, for whose exclusive benefit the trustee is bound to use those rights and powers”. Given this conception, it follows that the trust is a creature of the common law and that its main characteristic is fragmentation of title. This has been perceived for some time as meaning that the very concept of trust would remain forever alien to civilian legal traditions. However, the question arises as to the necessity of defining trusts by reference to fragmentation of title (with legal title being attributed to the trustee and beneficial title to the beneficiary or cestui que trust).

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Yaëll Emerich

Possession has long been a source of interest and curiosity among jurists, particularly due to its significant effects. Carbonnier has described civil law possession as conferring on the possessor “a series of blessings”, while in the common law, the notion of possession is considered both essential and vital for people. From a theoretical point of view, the importance of possession is sometimes explained by reference to Kant, according to whom appropriation by first possession is justified by categorical imperatives, or to Hegel, who argued that possession is worthy of protection because objects, once appropriated, fall into the sphere of the individual’s will. Despite the difficulty - or, according to some, the impossibility - of defining possession, the increasing globalisation of law and issues of harmonisation between different jurisdictions prompts us to consider whether different legal traditions share common conceptions of possession.

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Yaëll Emerich

The theory of civil law property is traditionally connected to a materialist conception of property, one in which the objects of ownership consist of things understood as corporeal property. The common law, for its part, is more open to immaterial property since the objects of property rights are always considered incorporeal, at least with respect to real property. The common law and civil law conceptions of property are, however, becoming more closely aligned. This chapter attempts to demonstrate that there is a current trend in both traditions towards recognising ownership and property rights over a variety of things other than material objects. Moreover, despite the difficulty that both traditions face in defining property, the common law and civil law increasingly rely on similar criteria to identify what can constitute the object of ownership or property rights.

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Yaëll Emerich

In both the common law and civil law, there are an increasing number of limitations to private property as a multitude of legislative and regulatory rules limit the exercise of property rights. Generally speaking, these limitations are imposed to subordinate the exercise of property rights to the needs of communal coexistence. As Josserand outlined, it is “socially impossible” for “an absolute right of ownership” to exist. Private property “suffers from innumerable restrictions” that can impose on owners limits to their right of use. The common law readily recognises a relative notion of property, conceptualized as a bundle of rights, involving duties or obligations. By contrast, civilian scholars tend to treat ownership as an absolute or complete real right, even though they recognise exceptions to this principle. There is, however, an increasing tendency, even in the civil law, to consider limits to property as part of the concept of property itself.

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Yaëll Emerich

The main goal of this book is to conceptualise property law through an integration of civil law and common law traditions. This integrated approach is theoretically founded upon comparative law and transsystemia. Transsystemia can be viewed as a legal approach centred on a dialogue between legal traditions, anchored in a pluralist and non-hierarchical method that celebrates the irreducible differences and similarities between various traditions. A relatively new theoretical approach, transsystemia originally referred to a method of instruction. Today, however, it is first and foremost a mode of knowing and understanding law.

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Yaëll Emerich

The common law tradition does not have a concept of “ownership” or private property strictly equivalent to that of the civilian tradition. It is often claimed that one of the major differences between the two traditions is that the common law does not have a true concept of ownership, at least for real property. Historically, in England, land was granted by a lord in exchange for certain services. The person who was at the bottom of the feudal pyramid and who physically possessed the land was considered to have seisin of the land. Even today, it is often considered that there is no such thing as ownership in the common law as far as real property is concerned because ultimately, the Crown owns the land. The fact that the common law does not recognise such a concept is often viewed as one of the defining features of this legal tradition. The traditional conception is that one can have a variety of interests in land but is never the ultimate owner. Rather than a concept of ownership, private individuals in the common law tradition are considered to hold estates in land.

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Yaëll Emerich

Comparative law scholars have long recognised the importance of historical analysis. For René David, such analysis is central to the process of cultural adaptation that every comparatist must experience in order to understand the place and importance of the institutions being considered. For this reason, it has been said that “comparison is beneficial only if it takes into account the evolution of the law”. The essence of this statement is apparent in a transsystemic approach to law. As H. Patrick Glenn stresses in his work Legal Traditions of the World, the analysis of a legal tradition requires an understanding of how the past manifests itself in the present. The transsystemic approach to law emphasises the impossibility of perfect transcultural understanding. The process of understanding history is necessarily a transformative and creative one.

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Yaëll Emerich

Property law, long considered impossible to examine from a comparative point of view, has often been ignored in comparative analysis. In fact, up until recently, it was excluded from transysstemic legal education. This book aims to show that property law has much to gain from a transsystemic or integrated approach. Far from getting lost in the twists and turns of an irreconcilable analysis of different traditions, property law concepts actually become clearer through a transsystemic lens and allow for a contextualized understanding of legal systems and their distinctive features.

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Yaëll Emerich

It is well recognised that one of the major differences between the civil law and the common law is that the common law does not have a concept of ownership as foundational as the one found in the civil law. It is, however, possible in the common law, as it is in the civil law, to create a right or interest in property that is less than complete title. The difference between the civil law and the common law on this issue is not so much that there is no ownership at common law - indeed, the fee simple, which represents the most complete interest in land, is very similar to ownership in the civil law and can be considered its functional equivalent. Rather, the difference is that while fragmentation of title is the rule in the common law, unitary title is the principle in the civil law.

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Conceptualising Property Law

Integrating Common Law and Civil Law Traditions

Yaëll Emerich

Conceptualising Property Law offers a transsystemic and integrated approach to common law and civil law property. Property law has traditionally been excluded from comparative law analysis, common law and civil law property being deemed irreconcilable. With this book, Ya'll Emerich aims to dispel the myth that comparison between these two systems of property is impossible. By establishing a dialogue between common law and civil law property, it becomes clear that the two legal traditions share common ground in the way that they address legal, cultural, and social issues related to property and wealth.