Property Law
Objects of property law:
- Tangible (corporeal) objects
o Movables/goods
o Immovable/land
- Intangible (incorporeal) objects
o E.g. intellectual property rights
Property Law in France:
- Concept of ownership: Article 544 Cciv
o “Ownership is the right to enjoy and dispose of objects in the most complete manner,
provided they are not used in a way prohibited by statutes or regulations”
- Types of property rights (limited enumeration): Article 543 Cciv
o “[…] on an object one may have a right of ownership, a mere right of enjoyment or
only a right of servitude”
Property Law in England & Wales:
- Distinction between real property (land) and personal property (things)
Nature of Property rights: property rights and personal rights:
1. Property rights: absolute nature:
a. Erga omnes (against the world)
b. Prior tempore potior irue (right to follow and right of preference)
c. Principles of numerus clausus and transparency
2. Personal rights (relative nature)
a. Not effective erga omes but only inter partes
b. Personal duties (obligations)
Principle of numerus clausus:
- “Property law must, to ensure its independence, deal with the creation of property rights
according to its own principles … The parties involved cannot be free to create any right,
which sees to an object, and provide property effect to it. The starting point of the freedom
of contract, that governs the law of obligations, does not apply to the law of property. Here, the
opposite applies: the parties involved can only create those rights, which are allowed by the
law. The number of property rights is therefore necessarily closed”
- Two aspects:
o Limited number and content of property rights
o The way in which these rights can be created, transferred or destroyed
- Reasons behind the principle of numerus clausus
o Property law is mandatory law (e.g. lex rei sitae rule)
o Limitation on parties’ autonomy and authority to create new property rights
Principle of transparency:
- Specificity
- Publicity
o Possession
o Registration
- Policy
Ground rules of Property law:
1. Nemo plus iuris rule
2. Prior tempore, potior iure rule
3. Limited property rights have priority over fuller rights (e.g. usufruct and right of ownership)
4. Special protection (e.g. revindication)
,Possession & Ownership: Civil Law:
- Ownership and limited property rights:
o Entitlements a person may have with respect to an object
- Possession:
o Factual control of an objects
o Function: to indicate the existence of property = makes it public & to prevent
unlawful/violent behavior to preserve the peace
è French law and German law -> legal presumption that the possessor of a movable objecrs is
also its owner (Art. 2276 cciv, §1006 BGB)
Possession & Ownership: Common Law:
- No concept of ownership
- Focus solely on the protection of possession
- Fragmented approach: land and goods
Protection of Possession & Ownership: Civil Law:
è Property rights = enforceable erga omes
è Holder of the right:
o May expect others not to interfere
o Is entitled to protection from interference
è States:
o Guarantee to protect private ownership from interference;
o An obligation stemming from public law: Art. 1 of 1st protocol ECHR, Art. 14 German
Constitution
è REMEMBER: protection of ownership stems from the entitlement with respect to an objects
while the protection of possession is granted regardless of the legal entitlement with respect to
an objects
- Specific actions for the protection of possession (possessory action)
o Aim = fast judicial protection against interference
- Specific actions for the protection of ownership (and of the limited property rights):
o Vindication (rei vindication)
o The right to removal of actual interference & the right to an injunction
Protection of Possession: Common Law:
- Mainly by tort law (property torts)
- Primary remedy = attribution of damages.
- Damages can be awarded even if there is no real damage to the property but the mere
infringement of a property right.
- Remedies follow the distinction between land and goods.
- Because there is no concept of ownership = the actions similar to those corresponding to the
protection of ownership in civil law jurisdictions are regulated differently.
Types of interference:
1. Dispossession of the holder of a property right and/or the possessor
2. Disturbance of the enjoyment of the possession
Possession v. Ownership: France:
o Possession: Art. 2255 Cciv = definition and role of possession:
§ “Possession is the detention or enjoyment of a thing or of a right
that we hold or that we exercise by ourselves, or by another who holds it or
who exercises it in our name.”
o Concerns corporeal objects and claims incorporated in corporeal title
o Possession extends to movable and immovable property but with quite different
effects
o Regulation of the protection of possession: Art. 2278 Cciv
, - Possession requires 2 factors:
o Actual control of the object (“corpus”); -
o The will to hold the object as an owner (“animus”).
è Possession terminates when animus or corpus is lost.
o Important: if only control (without will) = detention
§ Detention is different than possession (detentor cannot acquire ownership by
acquisitive prescription). Article 2266 Cciv
- Art 2256 Cciv: always presumption to possess for oneself and in the capacity of an owner.
- NOTE: Acquisitive prescription of movables – Articles 2276 and 2277Cciv.
Protection of Possession (Possessory Actions): France:
- Protection of possession of a movable object = Article 2276 Cciv (la possession vaut titre) =
as an owner.
- If the possessor is also an owner, he/she can choose between possessory protection and
vindication of the object.
- Acquisitive prescription of movables (Art. 2276 and 2277 C.civ.) – the balance of interests:
o Protection of possessor in good faith (Art. 2277 C.civ.)
o Protection of owner (Art. 2276 C.civ.)
- Ownership: Art. 544 Cciv:
o “Ownership is the right to enjoy and dispose of objects in the most complete manner,
provided they are not used in a way prohibited by statutes or regulations”
o Protection:
§ Vindication
§ Injunction
Possession v. Ownership: Germany:
- Possession:
o No definition of possession but focus on different aspects of the protection of
possession.
o Possession understood in broad sense = actual control of a corporeal object.
o Movable and immovable properties, extended to integral part of an object (eg: room of
house or apartment) (§865 BGB).
o Can be shared by several persons: co-possession (§866 BGB).
o When all can use only one object = joint possession.
Types of Possession in Germany:
- Eigenbesitz:
o A person who holds an object for himself/herself (e.g. owner, finder, thief).
- Fremdbesitz:
o A person who holds an object for another (e.g. a tenant, depository, borrower, finder
with intention to return it).
è DIFFERENCES:
o The distinction depends on the intention of the possessor. Both enjoy legal protection
of possession BUT there are different effects for the presumption of ownership & the
preconditions of acquisitive prescription (they apply ONLY to eigenbesitz).
- Direct possessor:
o Has actual control of an object.
- Indirect possessor:
o Exercises possession via intermediary (Besitzmittler).
Objects of property law:
- Tangible (corporeal) objects
o Movables/goods
o Immovable/land
- Intangible (incorporeal) objects
o E.g. intellectual property rights
Property Law in France:
- Concept of ownership: Article 544 Cciv
o “Ownership is the right to enjoy and dispose of objects in the most complete manner,
provided they are not used in a way prohibited by statutes or regulations”
- Types of property rights (limited enumeration): Article 543 Cciv
o “[…] on an object one may have a right of ownership, a mere right of enjoyment or
only a right of servitude”
Property Law in England & Wales:
- Distinction between real property (land) and personal property (things)
Nature of Property rights: property rights and personal rights:
1. Property rights: absolute nature:
a. Erga omnes (against the world)
b. Prior tempore potior irue (right to follow and right of preference)
c. Principles of numerus clausus and transparency
2. Personal rights (relative nature)
a. Not effective erga omes but only inter partes
b. Personal duties (obligations)
Principle of numerus clausus:
- “Property law must, to ensure its independence, deal with the creation of property rights
according to its own principles … The parties involved cannot be free to create any right,
which sees to an object, and provide property effect to it. The starting point of the freedom
of contract, that governs the law of obligations, does not apply to the law of property. Here, the
opposite applies: the parties involved can only create those rights, which are allowed by the
law. The number of property rights is therefore necessarily closed”
- Two aspects:
o Limited number and content of property rights
o The way in which these rights can be created, transferred or destroyed
- Reasons behind the principle of numerus clausus
o Property law is mandatory law (e.g. lex rei sitae rule)
o Limitation on parties’ autonomy and authority to create new property rights
Principle of transparency:
- Specificity
- Publicity
o Possession
o Registration
- Policy
Ground rules of Property law:
1. Nemo plus iuris rule
2. Prior tempore, potior iure rule
3. Limited property rights have priority over fuller rights (e.g. usufruct and right of ownership)
4. Special protection (e.g. revindication)
,Possession & Ownership: Civil Law:
- Ownership and limited property rights:
o Entitlements a person may have with respect to an object
- Possession:
o Factual control of an objects
o Function: to indicate the existence of property = makes it public & to prevent
unlawful/violent behavior to preserve the peace
è French law and German law -> legal presumption that the possessor of a movable objecrs is
also its owner (Art. 2276 cciv, §1006 BGB)
Possession & Ownership: Common Law:
- No concept of ownership
- Focus solely on the protection of possession
- Fragmented approach: land and goods
Protection of Possession & Ownership: Civil Law:
è Property rights = enforceable erga omes
è Holder of the right:
o May expect others not to interfere
o Is entitled to protection from interference
è States:
o Guarantee to protect private ownership from interference;
o An obligation stemming from public law: Art. 1 of 1st protocol ECHR, Art. 14 German
Constitution
è REMEMBER: protection of ownership stems from the entitlement with respect to an objects
while the protection of possession is granted regardless of the legal entitlement with respect to
an objects
- Specific actions for the protection of possession (possessory action)
o Aim = fast judicial protection against interference
- Specific actions for the protection of ownership (and of the limited property rights):
o Vindication (rei vindication)
o The right to removal of actual interference & the right to an injunction
Protection of Possession: Common Law:
- Mainly by tort law (property torts)
- Primary remedy = attribution of damages.
- Damages can be awarded even if there is no real damage to the property but the mere
infringement of a property right.
- Remedies follow the distinction between land and goods.
- Because there is no concept of ownership = the actions similar to those corresponding to the
protection of ownership in civil law jurisdictions are regulated differently.
Types of interference:
1. Dispossession of the holder of a property right and/or the possessor
2. Disturbance of the enjoyment of the possession
Possession v. Ownership: France:
o Possession: Art. 2255 Cciv = definition and role of possession:
§ “Possession is the detention or enjoyment of a thing or of a right
that we hold or that we exercise by ourselves, or by another who holds it or
who exercises it in our name.”
o Concerns corporeal objects and claims incorporated in corporeal title
o Possession extends to movable and immovable property but with quite different
effects
o Regulation of the protection of possession: Art. 2278 Cciv
, - Possession requires 2 factors:
o Actual control of the object (“corpus”); -
o The will to hold the object as an owner (“animus”).
è Possession terminates when animus or corpus is lost.
o Important: if only control (without will) = detention
§ Detention is different than possession (detentor cannot acquire ownership by
acquisitive prescription). Article 2266 Cciv
- Art 2256 Cciv: always presumption to possess for oneself and in the capacity of an owner.
- NOTE: Acquisitive prescription of movables – Articles 2276 and 2277Cciv.
Protection of Possession (Possessory Actions): France:
- Protection of possession of a movable object = Article 2276 Cciv (la possession vaut titre) =
as an owner.
- If the possessor is also an owner, he/she can choose between possessory protection and
vindication of the object.
- Acquisitive prescription of movables (Art. 2276 and 2277 C.civ.) – the balance of interests:
o Protection of possessor in good faith (Art. 2277 C.civ.)
o Protection of owner (Art. 2276 C.civ.)
- Ownership: Art. 544 Cciv:
o “Ownership is the right to enjoy and dispose of objects in the most complete manner,
provided they are not used in a way prohibited by statutes or regulations”
o Protection:
§ Vindication
§ Injunction
Possession v. Ownership: Germany:
- Possession:
o No definition of possession but focus on different aspects of the protection of
possession.
o Possession understood in broad sense = actual control of a corporeal object.
o Movable and immovable properties, extended to integral part of an object (eg: room of
house or apartment) (§865 BGB).
o Can be shared by several persons: co-possession (§866 BGB).
o When all can use only one object = joint possession.
Types of Possession in Germany:
- Eigenbesitz:
o A person who holds an object for himself/herself (e.g. owner, finder, thief).
- Fremdbesitz:
o A person who holds an object for another (e.g. a tenant, depository, borrower, finder
with intention to return it).
è DIFFERENCES:
o The distinction depends on the intention of the possessor. Both enjoy legal protection
of possession BUT there are different effects for the presumption of ownership & the
preconditions of acquisitive prescription (they apply ONLY to eigenbesitz).
- Direct possessor:
o Has actual control of an object.
- Indirect possessor:
o Exercises possession via intermediary (Besitzmittler).
