European Property Law Journal最新文献

{"title":"Property Law: Beyond Dogmas?","authors":"Vincent Sagaert","doi":"10.1515/eplj-2017-0006","DOIUrl":"https://doi.org/10.1515/eplj-2017-0006","url":null,"abstract":"Property law is, in general terms, often not the most attractive course for law students. The reason is obvious: it requires technical-abstract thinking on the basis of traditional dogmas which, at first sight, are difficult to capture or to understand for law students and often also for legal scholars. The closed system of property rights, the transparency principle, exclusivity of ownership, priority in case of insolvency, causal-abstract transfer, etc. are the fruit of abstract thinking in legal developments, often based on underlying principles which are difficult to assess (legal-economic and legal-historical arguments). These ‘property dogmas’ not only make property law harsh to get acquainted with, it also complicates the dialogue between property law and other fields of law. Property law is often considered and taught separately from contract law, family law, company law, tax law, public law, etc. Interaction between property law and the surrounding areas of law would be much easier if property law would take a more functional approach, leaving aside doctrinal complexity which has no connection with these other fields of law. A ‘functionalization’ of property law would enhance an ‘integration’ of property law within a larger legal framework. A more functional approach towards property law seems to follow from some recent legal developments. For instance, in French law, the closed system of property rights has become under pressure lately in the case law of the French Cour de cassation. While French law is generally seen as the historical ancestor of the ‘numerus clausus’ principle, this principle seems in France to have been largely abandoned or at least discussed. This narrows the gap existing between property law and contract law. Similar developments are visible in other national legal systems. For instance, in Belgian law, a major re-codification movement has been launched by the Minister of Justice. Five parts of the Civil Code, among which property","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133109771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Land Law and Limits on the Right to Property: Historical, Comparative and International Analysis","authors":"Yiğit Sayın, Amnon Lehavi, B. Oder, Murat Önok, D. Francavilla, Víctor Torre de Silva, R. Sudarshan","doi":"10.1515/eplj-2017-0002","DOIUrl":"https://doi.org/10.1515/eplj-2017-0002","url":null,"abstract":"The right to property is probably the oldest real right, much before concepts such as “right” or “real” (as opposed to “personal”) were outlined. It has often been regarded as a “natural” right, derived from nature. Therefore, controversies on property are certainly as old as humanity itself. However, in the revolutionary period, the right to property was deemed a fundamental right and included as such in the charters approved at that time. This has continued up to our times, including in modern constitutions and international and regional human rights treaties. Its rationale is mostly to protect the right to property against governmental action, even though there are opposite policy preferences as to regulation of property rights at the domestic level. This is why taking property in the public interest or in the public need is frequently mentioned in those texts. However, the restrictions deriving from the protection of the public interest in regard to environmental values and livelihoods, natural resources, coasts, forest villagers or indigenous people are recognized in an overwhelming majority of the legal orders at the constitutional or statutory level or in the case law. Those limits become visible especially in regard to land law in different scenarios. Developmental challenges, new technologies and emerging economic powers or models necessitate portraying and rethinking land law restrictions from the perspective of human rights since the claims as to the right to property as a fundamental right transform and develop rapidly in domestic or regional human rights litigation and in constitutional designs. The land law disputes, which had been traditionally viewed as a quintessential local matter, are increasingly affected by supranational legal norms and procedures. Accordingly, a number of recurring themes typify the various cases, especially in seeking to strike an appropriate balance between the right to property and the authority of governments to regulate or expropriate land to promote the public interest. \u0000This collaborative paper aims at focusing on land law and the limits on the right to property from historical, comparative and international perspectives to analyze continuity, divergences, differences and similarities in approaches in seemingly independent contexts. First, the paper deals with property in land and its limits in Jewish law, canon law, Islamic law and Hindu law, while it puts specific emphasis on Roman law conceptualizations affecting current domestic and international settings. In so doing, the paper seeks to demonstrate what might be considered a counterintuitive argument: while natural law or moral based law theories of property rights are conventionally associated with the right of an individual, the same sets of arguments also point to promoting the interests of the community as a whole, and to the need to strike an appropriate balance between individual and community in constructing land law. Second, it portrays m","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127072873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Intertwined Nature of Property and Regulation. A Book Review of Regulatory Property Rights: The Transforming Notion of Property in Transnational Business Regulation","authors":"Sally Brown Richardson","doi":"10.1515/eplj-2017-0014","DOIUrl":"https://doi.org/10.1515/eplj-2017-0014","url":null,"abstract":"It has been said that property law is antiquated, based on old, sometimes obsolete, norms. The recent book Regulatory Property Rights: The Transforming Notion of Property in Transnational Business Regulation moves beyond any antiquated notions of property to examine how property operates in a modern, highly regulatory (and regulated) society. The project, on its own terms, “aims to detect the function of modern property and the societal changes involved.” To this extent, the book more than succeeds: it flourishes. The book begins in an academic and quite civilian manner in Part I by classifying what it intends to discuss, namely regulatory property. Lest the reader think that “regulatory property” is novel or perhaps even an oxymoron, Christine Godt convincingly argues that regulatory property is actually “normal” property–the term regulatory property identifies property’s role not only as giving individuals dominion over things, but also property’s role in coordinating and empowering individuals’ behavior. Human behavior, particularly that of businesses, knows no manor state-made boundaries, thus Godt asserts that modern property law is about much more than one nation’s attempt to systematically assign uniform rights in a thing to a particular individual; modern property law is and must be more flexible than that. Under Godt’s conception of property, property law allows for different levels of regulation depending upon the thing and the sector in which the thing exists. For example, emission rights, succession rights, and financial instruments all create property rights, but those rights are quite different and transcend national boundaries. While that observation may not be particularly novel, Godt’s primary contribution is to utilize such different property rights to identify broad, functional, descriptive principles of modern","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130580178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Certainty in Real Estate Transactions, A Comparison of England and France, Bertrand du Marais and David Marrani (eds.), Cambridge: Intersentia, 2016, Ius Commune Europaeum, Volume 147, 134 Pages, ISBN 978-1-78068-298-3, €48","authors":"Katja Zimmermann","doi":"10.1515/eplj-2017-0013","DOIUrl":"https://doi.org/10.1515/eplj-2017-0013","url":null,"abstract":"This publication is the product of a multidisciplinary research project which pursued an examination of the concept of legal certainty in the case of commercial real estate transactions from both an academic and practical angle. The study, which was sparked by the (often criticized) methodology underlying the annual World Bank Doing Business reports, covered the English and the French legal frameworks that govern the transfer of real estate. The book is poured in a logical thematic structure. Within the obligatory frame consisting of introduction and conclusion, it first addresses the theoretical and practical conceptualization of legal certainty. In his introductory remarks, David Marrani equips the reader with a synopsis of the nature and the inherent challenges of comparative law and interdisciplinary research. In specific, he points out that the French concept of “sécurité” and the English concept of “certainty” alienate from each other to a certain extent so that they do not carry the exact same meaning. Régis Lanneau sheds light on legal certainty from a theoretical perspective. It is explained that this notion is difficult to grasp due to the fact that a precise and comprehensive definition of what constitutes legal certainty is non-existent. Yet, it is argued that “the function of legal certainty can be reduced to the function of the rule of law” and that it is in fact a blend of “material legal certainty”, “procedural legal certainty”, and “certainty in the efficacy of law”. The contributions on legal certainty in practise are both focussed on the English legal system and stem from the pens of Youseph Farah andMarios Koutsias. While Farah maps out legal certainty of contracts in the different contractual phases, Koutsias’ contribution deals with English company law and analyses the role of certainty in the protection of minority shareholders. After the more general approach of this concept, in the second part, the focus is laid specifically on legal certainty in the context of real estate transactions. First,","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122144290","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Regulatory Property Rights”: New Insights from Private Property Theory for the Takings Doctrine","authors":"C. Godt","doi":"10.1515/eplj-2017-0009","DOIUrl":"https://doi.org/10.1515/eplj-2017-0009","url":null,"abstract":"Abstract This paper explores the rationale of novel regulatory property rights under takings law (compensation for the expropriation of property). It is interested in their hybrid public-private quality. It reiterates the history of how the notion of ‘private’ property has come about, explores the theory of takings and its restructuring of property. Interesting perspectives on mid-nineteenth-century concepts for remuneration shed new light on what exactly has to be compensated for when property rights are regulated to the detriment of the owner. Based on this analysis, three examples of modern regulatory property rights are explored in more detail, emission rights, CSR labels and derivatives. The article submits that the more nuanced older schemes for compensation provide a better model for distinguishing the reasons for compensation and non-compensation, and are better suited for the modern property setting.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123768504","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Current Issues in Succession Law, Edited by Birke Häcke and Charles Mitchell, Hart Publishing 2016, 280 pages, ISBN 978-1-78225-627–4, £ 50,00","authors":"R. Frimston","doi":"10.1515/EPLJ-2017-0012","DOIUrl":"https://doi.org/10.1515/EPLJ-2017-0012","url":null,"abstract":"","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124408699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The historical development of the Scandinavian functional approach to transfer of ownership: a tale of change and continuity","authors":"Karoline Rakneberg Haug","doi":"10.1515/eplj-2017-0011","DOIUrl":"https://doi.org/10.1515/eplj-2017-0011","url":null,"abstract":"When it comes to transfer of ownership in movables the Scandinavian legal systems stand out in a European context. While other European legal systems follow a so-called ‘unitary’ approach by which most aspects of ownership, such as the right to use, the right to revindicate and protection against the creditors of the other party, are transferred as a unit at a specific point in time, the Scandinavian systems follow a so-called ‘functional’ approach. In short, a functional approach entails that different aspects of ownership, such as the ones mentioned above, are seen as separate from each other, rather than part of a unit. These ‘functions’ of ownership are regularly subject to diverging transfer requirements, meaning that protection against different competing claims can arise at different points in time. However, the Scandinavian systems have not always stood apart. The development towards the functional approach began around the turn of the 20th century. Before the shift towards the functional approach Scandinavian legal scholars were busy discussing at what point in time ownership in movables was transferred. The camp was divided between scholars that argued for a delivery rule and scholars that argued for a consensus rule. Despite the disagreement on the specific requirement for transfer there was agreement as to the premise of the discussion, namely that ownership was a unit and that it was transferred as such. In other words, scholars agreed on a unitary approach. A statement by the Swedish scholar Almén from 1902 illustrates the reigning view of transfer of ownership at the time. He claimed that that neither science, nor legislation could ‘refrain from attempting to find a unitary answer’ to the question of transfer of ownership, as long as the law operates with ‘a concept of ownership as a given size’ and that this was not likely to change ‘as long as private ownership is one of","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127246043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Property and Public Power in the Occupied West Bank","authors":"Ronit Levine-Schnur","doi":"10.1515/EPLJ-2017-0007","DOIUrl":"https://doi.org/10.1515/EPLJ-2017-0007","url":null,"abstract":"Abstract Does an Occupying Power have a duty to protect private property rights of protected persons against acts of its own citizens? What is the extent of such a duty? This paper argues that under belligerent occupation, land disputes between individuals of both sides of the conflict are not a private matter even if the Occupying Power has no direct interest in the object of dispute. Accordingly, the Occupying State has a duty to protect the private rights of the civilians under its control, and to address such private disputes as a matter of public order. The paper discusses this claim based on recent developments in the formation of land disputes between Israelis and Palestinians in the Occupied West Bank. Until the 1990 s Israel’s de-facto annexation of the West Bank’s land (although not the people) was manifested, most prominently, by establishing Israeli settlements over land identified as public property. Following the Oslo accords, a shift has occurred, when Israeli settlers, in a bottom-up process, began to cultivate private Palestinian lands and consequentially claim title based on their adverse possession. The political conflict was transferred from the public arena to the private one. The paper evaluates Israel’s response to these developments and considers the applicable legal standards.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115011841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Expropriations in South Africa: Dramatis Personae of the envisioned Expropriation Law","authors":"C. Young","doi":"10.1515/eplj-2016-0013","DOIUrl":"https://doi.org/10.1515/eplj-2016-0013","url":null,"abstract":"Abstract The Expropriation Act 63 of 1975 governs the process of expropriations in South Africa, though it is expected to be replaced by the Expropriation Bill [B4D-2015] (“Bill”). The Bill, if approved, will substantially overhaul the processes, roleplayers and stakeholders involved in, and impacted by, the expropriation process. The purpose of this paper is to set out the various roleplayers and stakeholders who play a role in the completion of the expropriation process. This includes parties who are necessarily involved and directly impacted, such as the expropriating authority and the expropriated property owner or holder. It also includes the secondary parties who, depending on the circumstances, may be expected to play a role, such as the valuer-general, appointed inspector, the courts and relevant organs of state. In addition, this paper will highlight some of the major amendments that the Expropriation Bill makes to the legal framework governing expropriations, particularly in respect of the stakeholders involved in the process","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134046565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Problematic Concept of Possession in the DCFR: Lessons from Law and Economics of Possession","authors":"Yun-chien Chang","doi":"10.1515/eplj-2016-0001","DOIUrl":"https://doi.org/10.1515/eplj-2016-0001","url":null,"abstract":"Abstract The concept of possession in law has been a complicated one for hundreds of years, and many civil codes are complex in their own idiosyncratic ways. (Draft) Common Framework of Reference is no exception, and it even contains arguably one of the most complicated possession stipulations ever. This article first summarizes the gist of each chapter in a new book the author edited, Law and Economics of Possession. Then, this article applies the economy of concept theory developed by Henry Smith to the concept of possession and critiques the DCFR for manipulating the notion of physical control. To demonstrate the downside of cerebral concepts, this article provides several examples where the DCFR contradicts itself. As an alternative, this article contends that possession defined as physical control and without any exception is both simple and useful. No doctrine needs to be changed substantively. The doctrines are only constructed more clearly. In addition, the DCFR raises the question of whether possession is a fact or a right, but fails to provide a sound explanation. This article argues that possession is both a fact and a subsidiary right, depending on which dimension of possession is discussed.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128974439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}