The Role of the (D)CFR in the Making of European Property Law PDF Download
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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: 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: Study Group on a European Civil Code
Publisher: sellier. european law publ.
ISBN: 3866530595
Category : Civil law
Languages : en
Pages : 406
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Book Description
In this volume, the Study Group and the Acquis Group present the first academic Draft of a Common Frame of Reference (DCFR). The Draft is based in part on a revised version of the Principles of European Contract Law (PECL) and contains Principles, Definitions and Model Rules of European Private Law in an interim outline edition. It covers the books on contracts and other juridical acts, obligations and corresponding rights, certain specific contracts, and non-contractual obligations. One purpose of the text is to provide material for a possible "political" Common Frame of Reference (CFR) which was called for by the European Commission's Action Plan on a More Coherent European Contract Law of January 2003.
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: 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: Arthur F. Salomons
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
The drafters of Book VIII Draft Common Frame of Reference (DCFR) have devoted an impressive amount of time and energy in collecting and publishing comparative data with regard to the existing property law within all Member States of the European Union, and in particular with regard to the subject matter of that Book: acquisition and loss of ownership of movables. This in itself suggests that comparative research played an important role in the drafting process, and this impression is enhanced by the abundance of comparative references and notes in the official Comments to Book VIII. However, the fact that the drafters made an extensive study of the relevant property law of every European legal system does not imply per se that the outcome of their comparative research was taken as guiding in the establishment of the DCFR rules. In order to gain a better insight into the character of the rules of Book VIII, this contribution seeks to answer the question whether comparative arguments really weighed heavily in the drafting of Book VIII: is the 'comparative activism' of its drafters a manifestation of a determination that common or even majority solutions should be the basis of the model rules to be proposed, or did the drafters feel free to propose novel rules even if these were contrary to what applies in most European countries, according to the comparative data they collected and presented themselves? To find out to what extent the choices of the drafters were influenced, if not determined, by their comparative research, it would be helpful to know what comparative methodology they followed. On this, we are told by them that the functional approach of Zweigert and Kötz can hardly be used in property law, for lack of functionally similar solutions, but as a comparative introduction to Book VIII is lacking, the question what other method could take its place is not answered. Therefore, another course of action was needed in order to be able to answer the above mentioned question. This course was found by first of all collecting the scattered general remarks by the principal drafters of Book VIII on the role of their comparative research, and by secondly analyzing what kind of comparative arguments the drafters actually included in the Comments to the provisions of that Book. The results of this approach are as follows. The principal drafters' various publications on the work of the Working group responsible for the drafting of Book VIII DCFR seem to indicate that they gradually began to attach less importance to comparative arguments as the project progressed. Initially (in 2007), it was argued that the information in the National reports was 'vital to our project' and 'the most important basis for our work'. One year on, the Reports were indicated as 'a basis for the working group's own comparative research.' Finally, in 2011, the drafters called the comparative survey 'a main source of inspiration.' It may be that this change of tone is a reflection of a development in the way the drafters perceived the role of other arguments, in particular those based on policy decisions; such a development could well have been the result of the debates on the proposals of the Working group with the members of the Study group. But whatever the cause, a confirmation of the fact that such a development indeed occurred can be found in the Introduction to the final publication, in 2011, of the texts of and Comments and Notes to the provisions of Book VIII. Referring to the 'remarkable differences to be found in European property law regimes' it is stated that 'most articles were drafted according to policy decisions.' The impression is inescapable that comparative arguments gradually had to give way to policy arguments, or at least that the drafters wanted or felt compelled to give this impression. However, none of this is reflected in the Comments to the 29 Articles of the first three Chapters of Book VIII. The drafters indicated in a very large number of instances to have followed common or majority solutions. An explicit rejection of a majority solution occurred in only two instances of little importance. Only when common or majority solutions were absent, the drafters seem to have been more inclined to create novel solutions than to look for leads in the available comparative data. In the handful of instances where the drafters adopted a minority solution, this concerned rules on topics where the European legal systems are strongly divergent (notably good faith acquisition). We must conclude from the Comments that, even if the principal drafters themselves gradually began to convey a different impression, comparative arguments played an important, often even decisive role in the drafting of the rules of Book VIII. If so, these rules are even more firmly rooted in current European property law than is often assumed.
Author: Bram Akkermans
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
When, at the end of 2007, the outline interim edition of the Draft Common Frame of Reference (DCFR) on European Contract Law was presented to the European Commission and at the beginning of 2008 to the European Parliament, the work of the joined network on European Private Law on the review of European Contract became public. From the very beginning of the European Commission's initiatives to revise European private law, as can best be seen from the Green Paper of the European Commission on European Contract Law and the revision of the acquis: the way forward, the focus has been almost exclusively on contract law. However, already in the early proposals of the European Commission, aspects of property law have also been considered. These aspects concerned movable property law in the form of retention of title and possibly property security rights in respect to movables. Property law is part of the internal market. Freedom of ownership forms the basis of a free market economy, including the internal market of the European Union. The free movement of goods, persons, services and capital all require a well functioning property law that does not impose obstacles. If any of these obstacles are found, they can be removed through internal market law, even if these rules are national mandatory property law rules. The publication of the results of the Study Group on a European Civil Code and the Research Group on Existing EC Contract Law brings the need to take a closer look at some of the effects contract law has on the law of property. First, after a short discussion of the interrelatedness of contract and property, a closer look at the CFR from a property law point of view is taken. Second, the principles underlying the CFR are brought into relation with general principles underlying property law, which in most legal systems are the same as the principles underlying contract law. The analysis of this 'core' of the CFR will bring a short analysis of the property aspects that the CFR deals with and the direct effects on the law of property. Finally, an attempt is made to make the indirect influences of the CFR on the law of property visible. This is done through a short quantitative and qualitative survey of the existing EU Consumer Law Acquis that underlies the work of the Research Group on Existing EC Contract Law.
Author: Vincent Sagaert
Publisher:
ISBN: 9789400002166
Category : Civil law
Languages : en
Pages : 0
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Book Description
The Draft Common Frame of Reference (DCFR) is the result of more than 25 years of academic research on European private law. The final academic version of the DCFR was published in October 2009, and currently the European Commission is undertaking a selection process in order to determine which parts of the DCFR will be included in a 'political' CFR. Against this background, this book presents and critically analyzes the DCFR and situates it in relation to current Belgian law. (Series: Ius Commune Europaeum - Vol. 99)
Author: Commission on European Contract Law
Publisher: Kluwer Law International B.V.
ISBN: 9041113053
Category : Law
Languages : en
Pages : 612
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Book Description
This text provides a comprehensive guide to the principles of European contract law. They have been drawn up by an independent body of experts from each Member State of the EU, under a project supported by the European Commission and many other organizations. The principles are stated in the form of articles, with a detailed commentary explaining the purpose and operation of each article and its relation to the remainder. Each article also has extensive comparative notes surveying the national laws and other international provisions on the topic.
Author: Wolfgang Faber
Publisher: Walter de Gruyter
ISBN: 3866539010
Category : Law
Languages : en
Pages : 1729
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Book Description
This volume contains the major result of the work undertaken by the international research group "Transfer of Movables" which belonged to the Study Group on a European Civil Code. It covers the most important aspects of the law of property in movables, such as the transfer of ownership based on the transferor's right and the good faith acquisition of ownership. The suggested black letter provisions are accompanied by extensive explanatory comments and comparative notes providing information on the existing rules of the EU Member States. As compared to Book VIII of the DCFR, this volume contains additional and partly revised national notes, extended comments, translations of the black letter rules and adapted registers. The "Principles of European Law" are published in co-operation with Oxford University Press and Staempfli (Switzerland).
Author: Eric Descheemaeker
Publisher: Edinburgh University Press
ISBN: 0748693653
Category : Law
Languages : en
Pages : 244
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Book Description
The first coherent analysis of the topic of possession from a comparative and historical legal perspective. The volume comprises contributions from some very distinguished scholars from the civilian tradition (Germany, Italy) as well as the common law (England) and mixed legal systems (Quebec, Scotland, South Africa).
