Property Law - Principles
Numerus clausus =only limited types of property rights are recognized as such by the legal
system
○ the number and content of absolute rights are limited by
mandatory law
○ Absolute rights:
■ Ownership
■ mortgage (hypothec),
■ pledge,
■ servitude,
■ usufruct,
■ Superficies,
■ Emphyteusis (a long lease of land, used in
particular by local communities to control the use of
land)
■ intellectual property rights, such as copyright
→ the parties have no freedom at all to determine the content of
absolute rights
→ the list of of proprietary rights is closed; parties cannot adjust
or create new types of proprietary entitlement
⇒ accepting fragmented ownership would infringe the
numerus clausus of absolute rights
● Granting ownership rights to several people would effectively
mean that new real rights could be created, and this is exactly
what the numerus clausus doctrine wants to avoid
doctrine of duplex = fragmentation of ownership in civil law systems → feudal
dominium ● Vassals (have the dominium utile) de facto used the land, but had
to acknowledge the superior rights of the lord (dominium
directum)
● Purpose: maintain a unitary concept of ownership (dominium)
Cujus est solum, ejus = things above and below land
est esque ad coelum
et ad inferos
Superficies solo cedit = anything which is placed upon and attached to the ground
If it is an accessory, then based on the principle superficies solo cedit it
Linked to accessory becomes an integral part/a component of the main thing.
summa divisio of civil = the distinction between personal rights and real rights / relative rights
law and absolute rights
,duplex ordo Common law system: common law and Equity
res nullius = you have taken possession of an object that does not belong to any
one
res derelicta = Take possession of something that did belong to anyone, but that
person abandoned its property and its rights
Principles of property 1) Numerus clausus
law 2) Transparency
The Nemo Dat Rule → holds that nobody can transfer a property right that he did
not have himself in the first place
● A person who owns a thing can transfer the full ownership of it,
but the holder of a mere right of usufruct may be able to transfer
the right of usufruct but cannot trans- fer the full ownership of the
object
● implemented in the requirement that a person transferring a
property right must have the competence to dispose of that right
Prior Tempore Rule ● older property rights trump newer rights
● The creditor with the older property right has priority over the
creditor with the newer right
● Prior tempore → highest priority ranking of creditors
paritas creditorum ● assets are distributed equally among the creditors from insolvency
(50% because the total assets are with half as much as the total
debt)
The Principle of ● Transparency
Specificity ➢ Publicity (possession/registration)
➢ Specificity Re Goldcorp Exchange Ltd [1994] UKPC 3
→ fungible objects, which occur in masses, such as grain, sand,
and also money, can generally not be the object of individual
property rights if they are mixed with other objects of the same
kind
= refers to commingling
The Principle of ● Transparency
Publicity ➢ Publicity (possession/registration)
➢ Specificity Re Goldcorp Exchange Ltd [1994] UKPC 3
→ essential to know whether there is a hypothec (or mortgage)
on the house
, → In respect to land, publicity is realized through a land registry
Droit de suite If burdened asset is transferred, limited property right remains in
existence
● (right to follow)
Principle of Accessority
Right of redemption = If the debtor repays he can get his ownership back
Week 1 - the concept of property law and property rights
Private law (relation between private individuals (citizens)
● Family law (property aspects involving marriage / divorce)
● Contract law → relative rights
● Tort law → relative rights
● Property law - Intellectual property law (object is different) → absent rights
Property law in Europe: differences in what can be owned
Germany and Netherlands: what can be owned deals with tangible objects = ownership
France: includes both irrespective of whether you can touch them
England and Wales: property law is related to land law e.g. things such as cars = personal
property law
Property law vs Contract law
Both create obligations in relation to an object
Major difference: strength of the right
Contract law: Property law
● personal rights - concerns specific ● Property rights have effect against their
people parties by their very nature
● Rights and obligations that a person has ● Concerns everyone
against others ● Owner has strong right
● Sue and John both have rights and ● Can be enforced against everyone
obligations ● Everyone has to respect his ownership
● Contract creates rights and obligations (ask permission for trespass)
only against the party that consensually
, agreed to it ● Numerus clausus
● Party autonomy ○ Specific strong rights
○ Parties can establish the content ○ Limits through specific set of rights
of the relationship / contract ○ E.g. ownership, possession,
○ Parties want those rights and use, … → strictly regulated
obligations and not to deviate from it
○ How extensive and limited ● Erga omnes effect
● Inter partes effect ○ Property rights are erga omnes
○ They can be relied on against the
● A relative right = right that a world
specific person has against one or ○ Everyone has to understand the
more specific other persons who rights and obligations towards the
are under a corresponding owner
obligation → law of obligations ○ An absolute right = right against
⇒ broader rights the world / a right erga omnes
■ these rights are
extremely strong → law
of property (the law of
property rights)
● Property rights are limited
⇒ absent rights
⇒ limited type of rights e.g. use, ownership
is a type of right
● property differs from other types of
personal obligations in the law. This is
particularly so because of the way in
which legal powers and priorities
regarding both specific assets and more
generally categories of resources (land,
chattels, intangibles, intellectual property)
regularly implicate numerous parties with
diverging features and types of interests
● parties affected by property legal
powers and priorities may not have
privity or prior explicit legal relations
among them and are often
“strangers” that find themselves ex
post facto entangled in a clash of
competing claims over an asset →
Numerus clausus =only limited types of property rights are recognized as such by the legal
system
○ the number and content of absolute rights are limited by
mandatory law
○ Absolute rights:
■ Ownership
■ mortgage (hypothec),
■ pledge,
■ servitude,
■ usufruct,
■ Superficies,
■ Emphyteusis (a long lease of land, used in
particular by local communities to control the use of
land)
■ intellectual property rights, such as copyright
→ the parties have no freedom at all to determine the content of
absolute rights
→ the list of of proprietary rights is closed; parties cannot adjust
or create new types of proprietary entitlement
⇒ accepting fragmented ownership would infringe the
numerus clausus of absolute rights
● Granting ownership rights to several people would effectively
mean that new real rights could be created, and this is exactly
what the numerus clausus doctrine wants to avoid
doctrine of duplex = fragmentation of ownership in civil law systems → feudal
dominium ● Vassals (have the dominium utile) de facto used the land, but had
to acknowledge the superior rights of the lord (dominium
directum)
● Purpose: maintain a unitary concept of ownership (dominium)
Cujus est solum, ejus = things above and below land
est esque ad coelum
et ad inferos
Superficies solo cedit = anything which is placed upon and attached to the ground
If it is an accessory, then based on the principle superficies solo cedit it
Linked to accessory becomes an integral part/a component of the main thing.
summa divisio of civil = the distinction between personal rights and real rights / relative rights
law and absolute rights
,duplex ordo Common law system: common law and Equity
res nullius = you have taken possession of an object that does not belong to any
one
res derelicta = Take possession of something that did belong to anyone, but that
person abandoned its property and its rights
Principles of property 1) Numerus clausus
law 2) Transparency
The Nemo Dat Rule → holds that nobody can transfer a property right that he did
not have himself in the first place
● A person who owns a thing can transfer the full ownership of it,
but the holder of a mere right of usufruct may be able to transfer
the right of usufruct but cannot trans- fer the full ownership of the
object
● implemented in the requirement that a person transferring a
property right must have the competence to dispose of that right
Prior Tempore Rule ● older property rights trump newer rights
● The creditor with the older property right has priority over the
creditor with the newer right
● Prior tempore → highest priority ranking of creditors
paritas creditorum ● assets are distributed equally among the creditors from insolvency
(50% because the total assets are with half as much as the total
debt)
The Principle of ● Transparency
Specificity ➢ Publicity (possession/registration)
➢ Specificity Re Goldcorp Exchange Ltd [1994] UKPC 3
→ fungible objects, which occur in masses, such as grain, sand,
and also money, can generally not be the object of individual
property rights if they are mixed with other objects of the same
kind
= refers to commingling
The Principle of ● Transparency
Publicity ➢ Publicity (possession/registration)
➢ Specificity Re Goldcorp Exchange Ltd [1994] UKPC 3
→ essential to know whether there is a hypothec (or mortgage)
on the house
, → In respect to land, publicity is realized through a land registry
Droit de suite If burdened asset is transferred, limited property right remains in
existence
● (right to follow)
Principle of Accessority
Right of redemption = If the debtor repays he can get his ownership back
Week 1 - the concept of property law and property rights
Private law (relation between private individuals (citizens)
● Family law (property aspects involving marriage / divorce)
● Contract law → relative rights
● Tort law → relative rights
● Property law - Intellectual property law (object is different) → absent rights
Property law in Europe: differences in what can be owned
Germany and Netherlands: what can be owned deals with tangible objects = ownership
France: includes both irrespective of whether you can touch them
England and Wales: property law is related to land law e.g. things such as cars = personal
property law
Property law vs Contract law
Both create obligations in relation to an object
Major difference: strength of the right
Contract law: Property law
● personal rights - concerns specific ● Property rights have effect against their
people parties by their very nature
● Rights and obligations that a person has ● Concerns everyone
against others ● Owner has strong right
● Sue and John both have rights and ● Can be enforced against everyone
obligations ● Everyone has to respect his ownership
● Contract creates rights and obligations (ask permission for trespass)
only against the party that consensually
, agreed to it ● Numerus clausus
● Party autonomy ○ Specific strong rights
○ Parties can establish the content ○ Limits through specific set of rights
of the relationship / contract ○ E.g. ownership, possession,
○ Parties want those rights and use, … → strictly regulated
obligations and not to deviate from it
○ How extensive and limited ● Erga omnes effect
● Inter partes effect ○ Property rights are erga omnes
○ They can be relied on against the
● A relative right = right that a world
specific person has against one or ○ Everyone has to understand the
more specific other persons who rights and obligations towards the
are under a corresponding owner
obligation → law of obligations ○ An absolute right = right against
⇒ broader rights the world / a right erga omnes
■ these rights are
extremely strong → law
of property (the law of
property rights)
● Property rights are limited
⇒ absent rights
⇒ limited type of rights e.g. use, ownership
is a type of right
● property differs from other types of
personal obligations in the law. This is
particularly so because of the way in
which legal powers and priorities
regarding both specific assets and more
generally categories of resources (land,
chattels, intangibles, intellectual property)
regularly implicate numerous parties with
diverging features and types of interests
● parties affected by property legal
powers and priorities may not have
privity or prior explicit legal relations
among them and are often
“strangers” that find themselves ex
post facto entangled in a clash of
competing claims over an asset →
