Edited by Pier Giuseppe Monateri
Edited by David S. Clark
The chapter addresses a central question for the regulation of property: what are the objects of property rights? The chapter undertakes a comparative examination of the main European legal traditions and their approaches to this issue. The case law of the European Court of Human Rights is also taken into consideration because it is one of the driving forces behind the ongoing process of ‘Europeanisation’ of the national legal systems in Europe. The chapter starts by briefly introducing the concepts of ‘ownership’ and ‘thing’ as understood in selected legal orders. Without providing an exhaustive analysis of all the possible objects of property rights, it considers certain categories of things whose capability of being appropriated is controversial. It concludes by considering the role of non-economic values in extending and restricting the domain of appropriable things. The chapter provides insights into ongoing transformations of our understanding of property rights, from the perspective of their objects. Moreover, it shows that the evolution of the taxonomy of property objects depends, on the one hand, on the emergence of new forms of economic interests, and on the other hand, on the public values that determine whether a thing is capable of being an object of property rights.
Comparisons of property laws require an understanding of what is living law, governing and structuring social practice and social expectations, and what are instead the intellectual tools that lawyers use to rationalise, structure, and represent property rules in conceptual terms. Many of the differences between the common law and the civil law – even those that are often presented as distinctive of each legal tradition – should be considered as relating mostly to what jurists and lawyers have done to frame property law in intellectual terms. This chapter takes a critical look at how these narratives are construed and upheld. The analysis set out by the author tackles a few problems, namely to what extent common law and civil law systems rely on different ontologies of property law, and how these ontologies have been historicised through different genealogies, and expressed through language. The author claims that a comparative analysis disentangling these various aspects of the subject may help to advance a better understanding of what different property law systems achieve.
The numerus clausus of property rights is one of the fundamental principles of property law. It refers to the idea that both the number and content of property rights is limited and is traditionally placed in contrast to party autonomy, which reigns in contract law. Parties can only shape their property rights when they stay within the boundaries provided for by the legal system. Such boundaries are provided by both legislation and case law. Numerus clausus can be understood as a principle, but also as a rule, depending on how strictly it is applied. It can be viewed from a legal perspective, but also from a constitutional or economic point of view, which enhances understanding of why the idea of numerus clausus exists as well as understanding of how it is supposed to function. Numerus clausus also plays a different role within a legal system than it does in respect to the effect of foreign law. There numerus clausus becomes a defensive mechanism. With this more thorough understanding, the practice of numerus clausus can be examined. How do we know a numerus clausus exists and which property rights are part of the numerus clausus? Various authors have argued for a less rigid approach to numerus clausus, possibly looking at ex post control rather than ex ante rigidity. They connect the need for flexibility to the increasingly dynamic nature of property law. Much has been done to discover why numerus clausus exists, but not so much on what role it can play in the future development of property law.
Trusts probably represent the instrument common lawyers have always been most proud of, frequently referring to it as their greatest achievement and their most original creation. Equally, trusts are probably the legal creation of which civil lawyers have been most ‘envious’. It is therefore not surprising that trusts have been the subject of comparative studies at least since the point in time from which comparative law is regarded as having established itself as an autonomous discipline. This chapter seeks to explore how comparative research, in common law, civil law and mixed legal jurisdictions, has engaged with the study of trusts and what the scope, the purposes and the methodological approaches of the enquiry have been. In doing so, it attempts to shed light on the achievements as well as on the shortcomings of the research in this field. It will argue that while comparative studies have gone a long way towards aiding the understanding of trusts, there is more to be done in an area of the law still fraught with some misconceptions and which holds an enormous potential for further development.
Lars van Vliet
This chapter will give an overview of the various transfer systems for movable property and immovable property. It will focus on voluntary transfers based on a legal act between the transferor and transferee. First the difference between the unitary approach and the functional approach to passing of ownership will be discussed. Many legal systems have a default rule for the passing of ownership. It indicates when ownership passes, but allows parties to indicate a different moment. In principle this moment of passing of ownership is the reference point for many other legal questions. This approach is called the unitary approach. The opposite is the functional approach, which does not wish to use the passing of ownership as a reference point. Within the unitary approach we can further distinguish between systems which in principle require a delivery (real or constructive) (tradition systems) and systems in which a contract of sale in principle passes ownership without delivery being needed (consensual systems). Within the tradition systems we can further distinguish between causal and abstract systems. Causal systems require a valid legal ground, such as a valid contract of sale. Abstract systems do not set this requirement and regard the validity of the transfer abstractly from the validity of the underlying legal ground. Ideally, a land register should mirror the legal status of each parcel of land. However, many legal systems allow certain unregistered rights to be set up against bona fide third parties. In many of these systems, leases, even if regarded as mere contracts, work against third parties. Often the buyer of a leased property is bound to the lease even if he did not know nor could have known about the lease. The chapter focuses on German, French, English and Dutch law.