Conceptualising Property 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.
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Chapter 3: Origins of title: possession and its effects

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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