Integrating Common Law and Civil Law Traditions
Chapter 5: Limitations to private property
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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