CHAPTER V: PROPERTY LAW
I. PROPERTY RIGHTS AND PROPERTY LAW
Property rights
o Absolute rights- rights that are against someone in particular
o Rights that pertain to something that can be tangible or intangible
o Effects erga omnes
Property rights can be used against everyone
o Droit de suite
If the object of right falls into the hands of a person who is not the
right holder of that object, the right holder can exercise his
property right against that person
II. WHY PROPERTY RIGHTS?
Freedom of ownership (Theoretical perspective)
o In a free market economy, everyone is free to acquire and dispose of their
own property
o Property rights on things and objects are freely transferable unless
prohibited
Tragedy of Commons ( Economic perspective)
o Describe a system where people have shared property rights in which
everyone acts independently according to their own self-interests contrary
to the common interest which leads to the destruction of the original
property
III. PROPERTY RIGHTS IN CIVIL LAW
OWNERSHIP, POSSESSION AND DETENTORSHIP
o OWNERSHIP
Property right a person has in relation to some object
Immaterial relation
No need of physical relation
o POSSESSION
Factual relation between the person and the object
o DETENTORSHIP
The detentor has factual control over the object but not on the
behalf of himself
, The dentetor recognizes the right of someone else
The possessor can retrieve the object with a possessory action
whereas the detentor cannot.
AWAY FROM THE FEUDAL SYSTEM
o Feudal system
A Lord grants feudal rights- FEES- to a vassal who can also grant a
fee to a subvassal, creating a pyramid of landholding
The fee was attached with duties that the vassal owe to the Lords
in exchange for the fee
Close relation between personal rights and property rights
The peasants were at the very bottom of the above-mentioned
pyramid and therefore they complained about the deplorable
conditions they were living in.
o French Revolution
Abolishment of the feudal system
Unitary system
Separation between personal rights and property rights
OWNERSHIP
o Unitary system
There is only one system of property law that applies to LAND and
other goods.
o Definitions of ownership
Most comprehensive right in civil law systems
Right to possess, use, damage, enjoy and destroy the object of
right
o Objects of ownership
France
Biens- corporeal and incorporeal objects (claims, e.g.)
The Netherlands and Germany
Corporeal objects only
o VINDICATION
The owner of a good can vindicate his/her good
Legal action by means of which a right holder can claim possession of
the object of his right
I. PROPERTY RIGHTS AND PROPERTY LAW
Property rights
o Absolute rights- rights that are against someone in particular
o Rights that pertain to something that can be tangible or intangible
o Effects erga omnes
Property rights can be used against everyone
o Droit de suite
If the object of right falls into the hands of a person who is not the
right holder of that object, the right holder can exercise his
property right against that person
II. WHY PROPERTY RIGHTS?
Freedom of ownership (Theoretical perspective)
o In a free market economy, everyone is free to acquire and dispose of their
own property
o Property rights on things and objects are freely transferable unless
prohibited
Tragedy of Commons ( Economic perspective)
o Describe a system where people have shared property rights in which
everyone acts independently according to their own self-interests contrary
to the common interest which leads to the destruction of the original
property
III. PROPERTY RIGHTS IN CIVIL LAW
OWNERSHIP, POSSESSION AND DETENTORSHIP
o OWNERSHIP
Property right a person has in relation to some object
Immaterial relation
No need of physical relation
o POSSESSION
Factual relation between the person and the object
o DETENTORSHIP
The detentor has factual control over the object but not on the
behalf of himself
, The dentetor recognizes the right of someone else
The possessor can retrieve the object with a possessory action
whereas the detentor cannot.
AWAY FROM THE FEUDAL SYSTEM
o Feudal system
A Lord grants feudal rights- FEES- to a vassal who can also grant a
fee to a subvassal, creating a pyramid of landholding
The fee was attached with duties that the vassal owe to the Lords
in exchange for the fee
Close relation between personal rights and property rights
The peasants were at the very bottom of the above-mentioned
pyramid and therefore they complained about the deplorable
conditions they were living in.
o French Revolution
Abolishment of the feudal system
Unitary system
Separation between personal rights and property rights
OWNERSHIP
o Unitary system
There is only one system of property law that applies to LAND and
other goods.
o Definitions of ownership
Most comprehensive right in civil law systems
Right to possess, use, damage, enjoy and destroy the object of
right
o Objects of ownership
France
Biens- corporeal and incorporeal objects (claims, e.g.)
The Netherlands and Germany
Corporeal objects only
o VINDICATION
The owner of a good can vindicate his/her good
Legal action by means of which a right holder can claim possession of
the object of his right
