- Elgar original reference
Edited by Jan M. Smits
Chapter 58: Property and real rights*
Property refers to objects capable of being privately owned; private property law regulates relations between (legal) persons with regard to (rights in) those objects. It deals with the issue of which objects are recognized as the object of private property rights; with the determination of the form and content of property rights and their protection; with acquisition and loss of property rights. Intellectual property law, though having many similarities on the level of principles, is dealt with in its own specific, often international realm. There is one important distinguishing characteristic of property rights, which may be seen in many jurisdictions: property rights are exigible against an indefinite number of people or have an erga omnes effect, and are as such opposed to personal rights (see, e.g., Lawson and Rudden, 2002; Swadling, 2007, s.4.01; Baur and Stürner 2009, s.2, no. 2; Terré and Simler, 2008, no. 143). The consequence is that property rights, since they affect the position of third parties, need to have a relatively high level of certainty and predictability. Therefore the regulation of the above-mentioned issues in national jurisdictions is often detailed, since the interests of third parties need to be taken into account, and it is often mandatory to do so. The regulations follow certain principles which serve certainty and predictability, and which can also be detected in those national jurisdictions: the principle of specificity of objects of property rights; the principle of numerus clausus of property rights; the principle of publicity of property rights.
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