The Principle of Numerus Clausus in European Property Law PDF Download
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Author: Bram Akkermans
Publisher:
ISBN: 9789050958240
Category : Numerus clausus
Languages : en
Pages : 0
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Book Description
In order to develop a framework that can form a basis for the development of a European property law, this book provides a comparative analysis of property law from the perspective of four European legal systems and European law, focusing on the numerus clausus principle. The book offers theoretical insights on how substantive property law, European law, and, to a certain extent, private international law intersect. The principle of numerus clausus, one of the fundamental principles of property law, is adhered to by most legal systems. In this book, an analysis of the property law systems of France, Germany, the Netherlands, and England is provided. A description is given of the content of available property rights in each of these systems, followed by an examination as to whether these rights form a closed system and whether private parties are given freedom to shape property rights, or even create new types of rights. In the last decades, property law has come under pressure to allow more party autonomy. In other words, property law has become more and more subject to pressure from contract law. Private parties attempt to draft their contracts in such a way that their contractual arrangements are given property effect. Sometimes they also attempt to make use of a property right in a way that was not foreseen by legislature or courts. As a result, rights have come into existence that are intermediary between the law of contract and the law of property. Moreover, the systems of property law are also subject to a growing influence from European legislation. The development of the internal market in the European Union increasingly forces Member States to answer the question whether and, if the answer is affirmative, in what way property rights created in another Member State should be recognized. Substantive property law intersects here. Until now, national legal systems generally resist this influence of European law and use the principle of numerous clausus as a justification. It is to be questioned whether the numerus clauses principle can still act as a guardian against the influence of foreign and European law.
Author: Bram Akkermans
Publisher:
ISBN: 9789050958240
Category : Numerus clausus
Languages : en
Pages : 0
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Book Description
In order to develop a framework that can form a basis for the development of a European property law, this book provides a comparative analysis of property law from the perspective of four European legal systems and European law, focusing on the numerus clausus principle. The book offers theoretical insights on how substantive property law, European law, and, to a certain extent, private international law intersect. The principle of numerus clausus, one of the fundamental principles of property law, is adhered to by most legal systems. In this book, an analysis of the property law systems of France, Germany, the Netherlands, and England is provided. A description is given of the content of available property rights in each of these systems, followed by an examination as to whether these rights form a closed system and whether private parties are given freedom to shape property rights, or even create new types of rights. In the last decades, property law has come under pressure to allow more party autonomy. In other words, property law has become more and more subject to pressure from contract law. Private parties attempt to draft their contracts in such a way that their contractual arrangements are given property effect. Sometimes they also attempt to make use of a property right in a way that was not foreseen by legislature or courts. As a result, rights have come into existence that are intermediary between the law of contract and the law of property. Moreover, the systems of property law are also subject to a growing influence from European legislation. The development of the internal market in the European Union increasingly forces Member States to answer the question whether and, if the answer is affirmative, in what way property rights created in another Member State should be recognized. Substantive property law intersects here. Until now, national legal systems generally resist this influence of European law and use the principle of numerous clausus as a justification. It is to be questioned whether the numerus clauses principle can still act as a guardian against the influence of foreign and European law.
Author: Christian von Bar
Publisher: Oxford University Press
ISBN: 0198885423
Category : Law
Languages : en
Pages : 481
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Book Description
Foundations of Property Law: Things as Objects of Property Rights is an abridged translation of the first volume of Christian von Bar's Gemeineuropäisches Sachenrecht -a milestone in European private law theory, and in comparative property law more broadly. Radical in content and scope, the English version examines the dynamics of interaction between the objects, contents, and holders of property. The conceptual framework of 'property law' is presented as a domain of erga omnes monopoly rights that govern the relationship between persons and objects of value. Within that framework, a reciprocal relationship is illustrated between "property rights" and their objects; property rights play a role in constituting the very objects ("things") in which they are held. With comprehensive comparative analysis, insights are gleaned from all the jurisdictions of the European Union and the United Kingdom, presenting a critical evaluation of property law systems in both Common and Civil Law traditions. This book joins all the national legal systems in a single inquiry, treating their traditions and arguments with the respect they deserve and taking advantage of the knowledge embodied in the diversity of European private law. A scholastic work, offering deep and unique insights into the European property law systems, Foundations of Property Law will quickly become a go-to resource for anyone interested in European private law and comparative property law.
Author: Michele Graziadei
Publisher: Edward Elgar Publishing
ISBN: 1785369164
Category : Law
Languages : en
Pages : 515
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Book Description
Comparative Property Law provides a comprehensive treatment of property law from a comparative and global perspective. The contributors, who are leading experts in their fields, cover both classical and new subjects, including the transfer of property, the public-private divide in property law, water and forest laws, and the property rights of aboriginal peoples. This Handbook maps the structure and the dynamics of property law in the contemporary world and will be an invaluable reference for researchers working in all domains of property law.
Author: Peter Cane
Publisher: Oxford University Press, USA
ISBN: 9780199248179
Category : Law
Languages : en
Pages : 1071
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Book Description
This volume provides a widely acessible overview of legal scholarship at the dawn of the 21st century. Through 43 essays by leading legal scholars based in the USA, the UK, Australia, New Zealand, Canada, and Germany, it provides a varied and stimulating set of road maps to guide readers through the increasingly large and conceptually sophisticated body of legal scholarship. Focusing mainly, though not exclusively, on scholarship in the English language and taking an international and comparative approach, the contributors offer original and interpretative accounts of the nature, themes, and preoccupations of research and writing about law. They then go on to consider likely trends in scholarship in the next decade or so.
Author: Sjef Erp van
Publisher: Walter de Gruyter
ISBN: 3866539312
Category : Law
Languages : en
Pages : 256
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Book Description
European integration has a growing impact on the property law systems of the EU Member States. The tensions which can be seen are considerably greater than in other areas of private law, given the technically complex and mandatory nature of property law. In this book current developments in European property law (particularly the Draft Common Frame of Reference) are analysed and evaluated, focussing on secured transactions and mortgage law. With contributions by academic and practicing lawyers, containing: Transfer of ownership and good faith acquisition: the rules in the Member States and in Book VIII of the DCFR Secured transactions and the DCFR Registration of intellectual property rights Trusts - from a Common and a Civil lawyer’s perspective The border area between property law and contract law: securities
Author: Bram Akkermans
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
The publication of the DCFR has renewed the discussion on the need for a European Property Law. The study published by Von Bar and Drobnig while the DCFR was prepared, underlines the inter-relatedness of contract and property. Nonetheless, the drafters of the DCFR have chosen to deal with specific aspects of property law only. At a European level, however, there are much more initiatives that could also have been dealt with. Examples of these are insolvency, emission trading rights, and matrimonial property law and succession issues. Moreover, even when the CFR would stick to the aspects of property law it deals with now, the effect on the national systems of property law will be severe. This does not only apply to Book IX on security interests, but also to the Book VIII on transfer rules that assumes the existence of an Anwartschaftsrecht in Article VIII.2:307 DCFR. Also Article VIII.1:204 DCFR creates a complex relationship between property rights under the DCFR and property rights that exist at a national level. The numerus clausus principle, as it is adhered to by many European legal systems, will have to be redefined or reshaped depending on the form the CFR will eventually take. Also Book X on Trusts will have effects beyond the mere principles in that book. Holding a right on trust is not generally recognized in civil law systems. Although there are developments in this direction in Germany, France and also Italy, other legal systems, such as Dutch law, remain to resist trusts and trust-like instruments. Also here the effects of the CFR on national property law may be severe. Member States will have to accommodate these European principles. As a result they are deemed to bring their legal systems more into line with each other. Voluntary convergence will result leading to a better functioning internal market and to rules that are likely to apply beyond the mere scope of cross-border transactions. The DCFR therefore already contributes to the making of European Property Law.
Author: Ugo Mattei
Publisher: Edward Elgar Publishing
ISBN: 1786435187
Category : Law
Languages : en
Pages : 262
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Book Description
Can private law assume an ecological meaning? Can property and contract defend nature? Is tort law an adequate tool for paying environmental damages to future generations? This book explores potential resolutions to these questions, analyzing the evolution of legal thinking in relation to the topics of legal personality, property, contract and tort. In this forward thinking book, Mattei and Quarta suggest a list of basic principles upon which a new, ecological legal system could be based. Taking private law to represent an ally in the defence of our future, they offer a clear characterization of the fundamental legal institutions of common law and civil law, considering the challenges of the Anthropogenic era, technological tools of the Internet era, and the global rise of the commons. Summarizing the fundamental institutions of private law: property rights, legal personality, contract, and tort, the authors reveal the limits of these legal institutions in relation to historical international evolution and their regulation in the contexts of catastrophic ecological issues and technological developments. Engaging and thoughtful, this book will be interesting reading for legal scholars and academics of private law and, in particular, those wishing to understand the role of law when facing technological and ecological challenges.
Author: Bram Akkermans
Publisher: Edward Elgar Publishing
ISBN: 1803924810
Category : Law
Languages : en
Pages : 287
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Book Description
Bringing together a diverse array of property law specialists, this timely Research Agenda explores the theoretical and doctrinal dimensions of the main subareas of property law. It examines the current tensions between the protection of existing property interests and the need to tackle societal challenges, such as digitalisation, the creation of energy communities, and the climate crisis.
Author: Yun-chien Chang
Publisher: Cambridge University Press
ISBN: 1316033384
Category : Law
Languages : en
Pages : 365
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Book Description
Possession is a key concept in both the common and civil law, but it has hitherto received little scrutiny. Law and Economics of Possession uses insights from economics, psychology and history to analyse possession in law, compare and contrast possession with ownership, break down the elements of possession as a fact and as a right, challenge the adage that 'possession is 9/10 of the law', examine possession as notice, explain the heuristics of possession, debunk the behavioural studies which confuse possession with ownership, explore the LightSquared dispute from the perspective of 'possession' of spectrum frequency and provide new insights to old questions such as first possession, adverse possession and property jurisdiction. The authors include leading property scholars, who examine possession laws in, among others, the USA, UK, China, Taiwan, Japan, Germany, France, Israel, the Netherlands, Spain, Portugal, Italy and Austria.
Author: Sjef van Erp
Publisher: Bloomsbury Publishing
ISBN: 1509941851
Category : Law
Languages : en
Pages : 1256
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Book Description
This casebook presents a deep comparative analysis of property law systems in Europe (ie the law of immovables, movables and claims), offering signposts and stepping stones for the reader wishing to explore this fascinating area. The subject matter is explained with careful attention given to its history, foundations, thought-patterns, underlying principles and basic concepts. The casebook focuses on uncovering differences and similarities between Europe's major legal systems: French, German, Dutch and English law are examined, while Austrian and Belgian law are also touched upon. The book combines excerpts from primary source materials (case law and legislation) and from doctrine and soft law. In doing so it presents a faithful picture of the systems concerned. Separate chapters deal with the various types of property rights, their creation, transfer and destruction, with security rights (such as mortgages, pledges, retention of title) as well as with harmonising and unifying efforts at the EU and global level. Through the functional approach taken by the Ius Commune Casebooks this volume clearly demonstrates that traditional comparative insights no longer hold. The law of property used to be regarded as a product of historical developments and political ideology, which were considered to be almost set in stone and assumed to render any substantial form of harmonisation or approximation very unlikely. Even experienced comparative lawyers considered the divide between common law and civil law to be so deep that no common ground - so it was thought - could be found. However economic integration, in particular integration of financial markets and freedom of establishment, has led to the integration of particular areas of property law such as mortgage law and enforceable security instruments (eg retention of title). This pressure towards integration has led comparative lawyers to refocus their interest from contract, tort and unjustified enrichment to property law and delve beneath its surface. This book reveals that today property law systems are closer to one another than previously assumed, that common ground can be found and that differences can be analysed in a new light to enable comparison and further the development of property law in Europe.
