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 5: Limitations to private property

Yaëll Emerich

Abstract

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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