Week 1
What is property law?
⇒ Property law is an area of law that is concerned - or: focused on - legal
relationships between a person and a thing (or right)
● Regulates the legal relationship between a person and the whole world via the ownership
of property
- As you can exclude other from the use of the object and use the object as you
wish
Protocol to the Convention for the Protection of Human Rights and
Fundamental Freedoms
★ Property rights are also enshrined in art. 1
- The government can put restrictions on the exercise of your property in order to
ensure public interests
REQUIREMENTS:
1. Enshrined in national law
2. Pursuing a legitimate aim of public interest
3. Proportionate
Article 345 TFEU
- The Treaties shall in no way prejudice the rules in Member States governing the system
of property ownership
Law of obligations
⇒ Deals with legal relationships between persons (relative rights, personal rights,
rights in personam)
1. Only binding on the parties (inter partes)
2. THEREFORE Few formalities (nodding your head or a hand shake) ⇒ meeting of wills
3. Freedom of contract (can conclude any contract you wish)
,Property law
⇒ Deals with legal relationships between persons and things or rights (absolute rights,
real rights, rights in rem)
1. Enforceable against the whole world (erga omnes)
2. More formalities
3. Mandatory rules (can put what you want in contract but cannot give proprietary effect)
Affects rights of third parties
● Once the transfer of ownership occurs this inherently includes the whole world as the
rights are transferred and the world must respect A’s rights now, no longer B’s.
● Can make a contract saying you get this for that, however the person cannot make you
owner of large capital such as land or buildings because this requires further formalities
and transactions performed with a notary and entered into a public register.
Example
❖ Noorlander v. Ligtvoet (HR 10 April 2009, NJ 2009/184)
FACTS:
- In this case Ligtvoet would be permitted to place the horse manure on Noorlanders plot in
a designated area
- They got into a disagreement and Noorlander stated that he no longer wanted Ligtvoet to
deposit his horse's manure on his land
- Ligtvoet went to court and was permitted to continue
- Noorlander passed ownership of the land to Noorlander Jr
- Ligtvoet cannot place his horse manure anymore because the agreement between
Noorlander and Ligtvoet did not transfer when the property was passed on to the daughter
BECAUSE: The contract only binds two people, it does not involve other parties such as the
daughter. She did not consent to the contract and was not a party to it and could therefore
invoke her property rights and forbid Ligtvoet to use it.
Where do we find property law?
› Hardly any international or European property law
, § Less harmonised than law of obligations
› Mainly comprise of national legislation and case law
› THEREFORE rely on the Draft Common Frame of Reference
Draft Common Frame of Reference
● An academic effort to harmonise differences
● Not an actual legal system that is in force in any state
● ‘Soft law’ → Influences the courts ruling
● Principles, definitions and model rules
Principles of property law
★ Property law deals with absolute rights | no derogations/limitation
→ Principle of droit de suite
| the right to follow ⇒ a property right follows the thing (even if someone steals it, it is
still your object)
→ Nemo plus principle | One cannot transfer more property rights than he has
§ Nemo plus transferre potest quam ipse habet
§ Nemo dat quod non habet
→ Principle of priority | Oldest right is the strongest right - absolute right invoked against all
RELEVANT WITH THE: Right of usufruct ⇒ Don't own the object but have the right to use it
Principle of specificity
➢ Property rights only exist with respect to specific things/objects
- Has to be sufficiently clear in which object your right is in IF NOT then the right
does not exist
❖ In Re Goldcorp Exchange Ltd. (In Receivership) 1 A.C. 74
FACTS: Goldcorp went bankrupt, lots of clients showed their certificates demanding their piece
of gold
- HOWEVER it was not clearly delineated which bars of gold belonged to who
- THEREFORE no party could claim which specific bar was theirs and no one got a bar of
gold
, Principle of publicity
⇒ The creation or transfer of property rights usually requires a form of publicity
N.B. The whole world has to be able to take notice of property rights
- Especially large capital where the transfer is registered publicly
Numerus clausus
⇒ Closed list of property rights
- Available property rights are limited by law
➢ Typenzwang
- Only specific property rights can be created
- Parties can only create property rights which are recognized by the law
➢ Typenfixierung
- The content of these rights is fixed by law
- Only specific contents can be in property law
- Property right should remain within the boundaries of the chosen property right
★ Purpose: Legal certainty and predictability
N.B. Anything other will be a personal right and not a property right.
Personal rights
⇒ Indirect power over a good by giving its holder a right against the owner of the
good
- A limited right that cannot be enforced against the rest of the world
N.B. A limited right follows the object so if a car with a pledge is sold the person buying it now
has the pledge on the car
Examples of property rights
1. Ownership
2. Limited real rights (real rights, less than ownership)
§ Article VIII. – 1:204 DCFR
§ Security rights (pand, pledge, mortgage, gage, hypothèque, Pfandrecht, etc.)
What is property law?
⇒ Property law is an area of law that is concerned - or: focused on - legal
relationships between a person and a thing (or right)
● Regulates the legal relationship between a person and the whole world via the ownership
of property
- As you can exclude other from the use of the object and use the object as you
wish
Protocol to the Convention for the Protection of Human Rights and
Fundamental Freedoms
★ Property rights are also enshrined in art. 1
- The government can put restrictions on the exercise of your property in order to
ensure public interests
REQUIREMENTS:
1. Enshrined in national law
2. Pursuing a legitimate aim of public interest
3. Proportionate
Article 345 TFEU
- The Treaties shall in no way prejudice the rules in Member States governing the system
of property ownership
Law of obligations
⇒ Deals with legal relationships between persons (relative rights, personal rights,
rights in personam)
1. Only binding on the parties (inter partes)
2. THEREFORE Few formalities (nodding your head or a hand shake) ⇒ meeting of wills
3. Freedom of contract (can conclude any contract you wish)
,Property law
⇒ Deals with legal relationships between persons and things or rights (absolute rights,
real rights, rights in rem)
1. Enforceable against the whole world (erga omnes)
2. More formalities
3. Mandatory rules (can put what you want in contract but cannot give proprietary effect)
Affects rights of third parties
● Once the transfer of ownership occurs this inherently includes the whole world as the
rights are transferred and the world must respect A’s rights now, no longer B’s.
● Can make a contract saying you get this for that, however the person cannot make you
owner of large capital such as land or buildings because this requires further formalities
and transactions performed with a notary and entered into a public register.
Example
❖ Noorlander v. Ligtvoet (HR 10 April 2009, NJ 2009/184)
FACTS:
- In this case Ligtvoet would be permitted to place the horse manure on Noorlanders plot in
a designated area
- They got into a disagreement and Noorlander stated that he no longer wanted Ligtvoet to
deposit his horse's manure on his land
- Ligtvoet went to court and was permitted to continue
- Noorlander passed ownership of the land to Noorlander Jr
- Ligtvoet cannot place his horse manure anymore because the agreement between
Noorlander and Ligtvoet did not transfer when the property was passed on to the daughter
BECAUSE: The contract only binds two people, it does not involve other parties such as the
daughter. She did not consent to the contract and was not a party to it and could therefore
invoke her property rights and forbid Ligtvoet to use it.
Where do we find property law?
› Hardly any international or European property law
, § Less harmonised than law of obligations
› Mainly comprise of national legislation and case law
› THEREFORE rely on the Draft Common Frame of Reference
Draft Common Frame of Reference
● An academic effort to harmonise differences
● Not an actual legal system that is in force in any state
● ‘Soft law’ → Influences the courts ruling
● Principles, definitions and model rules
Principles of property law
★ Property law deals with absolute rights | no derogations/limitation
→ Principle of droit de suite
| the right to follow ⇒ a property right follows the thing (even if someone steals it, it is
still your object)
→ Nemo plus principle | One cannot transfer more property rights than he has
§ Nemo plus transferre potest quam ipse habet
§ Nemo dat quod non habet
→ Principle of priority | Oldest right is the strongest right - absolute right invoked against all
RELEVANT WITH THE: Right of usufruct ⇒ Don't own the object but have the right to use it
Principle of specificity
➢ Property rights only exist with respect to specific things/objects
- Has to be sufficiently clear in which object your right is in IF NOT then the right
does not exist
❖ In Re Goldcorp Exchange Ltd. (In Receivership) 1 A.C. 74
FACTS: Goldcorp went bankrupt, lots of clients showed their certificates demanding their piece
of gold
- HOWEVER it was not clearly delineated which bars of gold belonged to who
- THEREFORE no party could claim which specific bar was theirs and no one got a bar of
gold
, Principle of publicity
⇒ The creation or transfer of property rights usually requires a form of publicity
N.B. The whole world has to be able to take notice of property rights
- Especially large capital where the transfer is registered publicly
Numerus clausus
⇒ Closed list of property rights
- Available property rights are limited by law
➢ Typenzwang
- Only specific property rights can be created
- Parties can only create property rights which are recognized by the law
➢ Typenfixierung
- The content of these rights is fixed by law
- Only specific contents can be in property law
- Property right should remain within the boundaries of the chosen property right
★ Purpose: Legal certainty and predictability
N.B. Anything other will be a personal right and not a property right.
Personal rights
⇒ Indirect power over a good by giving its holder a right against the owner of the
good
- A limited right that cannot be enforced against the rest of the world
N.B. A limited right follows the object so if a car with a pledge is sold the person buying it now
has the pledge on the car
Examples of property rights
1. Ownership
2. Limited real rights (real rights, less than ownership)
§ Article VIII. – 1:204 DCFR
§ Security rights (pand, pledge, mortgage, gage, hypothèque, Pfandrecht, etc.)
