Lieke Spruit (B7) Property Law
LECTURE 1
An introduction to property law
Property law in France, Germany and England
The historical development of property law
The nature of property rights: property rights and personal rights
The principle of numerus and transparency
The ground rules of property law
International and European initiatives to unify and harmonize property law
AN INTRODUCTION TO PROPERTY LAW
1. What is property law?
o “Property Law is the law that deals with entitlements ‘[rights to objects] to
property]”
o Property Law is the law that “concern rights that a person has against a
considerable group of other persons concerning an object.”
2. Objects of property law
o Tangible (corporeal) objects
Movables; goods
Immovable; land
o Intangible (incorporeal) objects
E.g. intellectual property rights
PROPERTY LAW VS INTELLECTUAL PROPERTY
Property – intellectual property
Property = tangible or intangible entity that is owned by a person or jointly by a group of
people.
Property: real property (land), personal property (physical possession to a person),
private property (property owned by legal persons or legal entities), public property
(state owned or publicly owned and available possession) and intellectual property.
How to recognize an Intellectual Property Right (IPR)?
Definition
Monopoly for the creator
Intellectual
Industrial: technical creations – esthetic creations – distinctive rights
PROPERTY LAW IN FRANCE, GERMANY AND ENGLAND
Civil law (civil code basis) and common law traditions (case law basis)
CIVIL LAW – FRANCE
Property law: part of patrimonial law
French Civil Code (1804)
o Focus on land
o Historical development: from the feudal regime to the French Civil Code
1
,Lieke Spruit (B7) Property Law
Concept of 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.”
Types of property rights (limited enumeration): Art. 543 Cciv Numerus clauses
(Germany)
o “(…) on an object one may have a right of ownership, a mere right of
enjoyment or only a right of servitude.”
CIVIL LAW – GERMANY
German civil code (1900)
Based on Roman Law
Content similar to French law
o Right of ownership (but restricted to only corporeal objects – para. 903)
Numerus clauses but role of courts Limited enumeration (France)
COMMON LAW – ENGLAND AND WALES
No civil code
o Amalgam of statutory and judge-made rules
Distinction between real property (land) and personal property (things)
o Personal property is diferent from personal right!!
Real property
o Feudal basis
o Judge made and statutory intervention
Personal property
o Little statutory intervention
Numerus clauses
No right of ownership but focus on possession
HISTORICAL DEVELOPMENT OF PROPERTY LAW
PROPERTY LAW HISTORY
Roman law
The feudal system and property law: the duplex dominium (dominium directum
and dominium utile) and the importance of land as object of property law
The French Revolution: the abolishment of the feudal system (in Scotland only in
2004 and Ireland only in 2009)
Industrial Revolution: the growing importance of personal property (e.g. movable
assets and claims)
IP LAW HISTORY
Prehistoric times – potter’s stamps (marks)
Middle Ages – designation of ownership marks, production marks, printers’
monopolies (15th century)
King’s power to grant monopoly (letters patent)
19th century – first international harmonization of IP rules (Paris Convention for the
Protection of Industrial Property 1883)
2
,Lieke Spruit (B7) Property Law
20th century – expansion and development of IP system (biotech, computer
programs)
21th century – development of ICT, ‘virtual property’; are IP rights still sufcient?
NATURE OF PROPERTY RIGHTS: PROPERTY RIGHTS AND PERSONAL RIGHTS
Property rights
o E.g. France and Germany: ownership and limited property rights (e.g.
usufruct, right of servitude)
Personal rights
o Contractual rights (contract law), right to payment of damages (tort law),
right to payment of a certain amount of money as result of unjustified
enrichment (unjustified enrichment)
Property rights: absolute nature Personal rights; relative nature
a) Erga omnes (‘against the world’) a) Not efective erga omnes but only
b) Right to follow and right to inter partes
preference b) Personal duties (‘obligations’)
c) Principles of numerus clauses and
transparency
THE PRINCIPLE OF NUMERUS CLAUSUS AND TRANSPARENCY
Property law and law of obligations
Two tests to qualify a right as a property right
o Principle of numerus clausus
o Principle of transparency
Important: only when a right can be qualified as a property right, certain ground
rules apply
PRINCIPLE OF NUMERUS CLAUSUS
What is the principle of numerus clausus?
Two aspects:
o Number and content of property rights
o The way in which these right 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
Development of the principle of numerus clausus
Legal provisions
o Examples:
Art. 543 Cciv: “One can have, in relation to things, either a right of
ownership, or a simple right of enjoyment, or merely a land burden”
Section 1 of the Law of Property Act 1925
o Doctrine
The judicial interpretation of the principle of numerus clausus?
PRINCIPLE OF TRANSPARENCY
Two aspects
3
,Lieke Spruit (B7) Property Law
o Specificity
o Publicity
Possession
Registration
Policy
THE GROUND RULES OF PROPERTY LAW
Ground rules of property law Ground rules: 3 main categories of IP
rights
I. Nemo plus iuris rule (“intellectual property” and “intellectual
II. Prior tempore, potior iure rule property rights” are diferent!!)
III. Limited property rights have
priority over fuller rights (e.g.
I. Copyrights: expression of an idea
usufruct and right of ownership)
of a support, protection starts from
IV. Special protection (e.g.
the moment of the expression, no
revindication)
need for registration.
II. Patent: condition of novelty, non-
obviousness and industrial
application, negative rights
III. Trade marks: test of
distinctiveness of the signs in
comparison with existing signs of
other traders.
INTERNATIONAL AND EUROPEAN INITIATIVES TO UNIFY AND HARMONIZE
PROPERTY LAW
1. Property Law: mainly national law and mandatory
a. E.g. Lex Rei Sitae rule: the applicable law is determined by the jurisdiction
where the object is situated
2. Ways to harmonize property law
a. Binding international instrument (e.g. EU Directives)
b. Non-binding international instrument (e.g. model rules such as the DCFR)
c. Importing foreign elements in national property law (legal transplants)
3. Levels of harmonization
a. Harmonization at EU level
b. Harmonization at the level of the Council of Europe (e.g. Article 1, First
Protocol of ECHR)
c. Harmonization at international level
Legal framework IP law
1. International Law: Paris Convention, Berne Convention and Madrid System
2. International European Law: European Patent Convention 1973
3. Community Law (EU Law): Example of Directive 22/5/2001 (copyright); EU
harmonization (trademarks, designs); unification (EU trademark); Case laws
(CJEU)
4
, Lieke Spruit (B7) Property Law
WORKSHOP 1
WHAT IS PROPERTY LAW?
What lies at the core of property law?
o Objects are at the centre of property law.
What types of objects fall within property law?
o Objects can be classified as tangible or intangible properties.
What is the main distinction within property rights?
o Property rights are either absolute (ownership) or limited (servitudes,
usufruct)
What about terminology? Which countries use the following distinctions:
immovable/movables and land/goods?
o Civil law countries (immovable/movables) – common law (land/goods)
What is the diference between real property and personal property?
o Real property refers to land. Personal property refers to things which are
not land
OBJECTS OF PROPERTY LAW
What about:
o Animals
o Human body
o Human corpse
o Objects for public use
Economic justification of property law
MAIN DIFFERENCE BETWEEN PROPERTY LAW AND INTELLECTUAL PROPERTY
LAW
Property law coming from Roman law: from a classification of existing objects in
nature
Intellectual property law: covers creation of mind, an expressed idea non-existing
in nature without human mind
Important: reason why discoveries cannot be protected by IP law, because
existing in the nature
MAIN FAMILIES OF IP LAW
Trademark
o “Madrid system”; international registration of marks (1891 and 1989
WIPO), Community trademark system (EU, 1993)
Patent
5
LECTURE 1
An introduction to property law
Property law in France, Germany and England
The historical development of property law
The nature of property rights: property rights and personal rights
The principle of numerus and transparency
The ground rules of property law
International and European initiatives to unify and harmonize property law
AN INTRODUCTION TO PROPERTY LAW
1. What is property law?
o “Property Law is the law that deals with entitlements ‘[rights to objects] to
property]”
o Property Law is the law that “concern rights that a person has against a
considerable group of other persons concerning an object.”
2. Objects of property law
o Tangible (corporeal) objects
Movables; goods
Immovable; land
o Intangible (incorporeal) objects
E.g. intellectual property rights
PROPERTY LAW VS INTELLECTUAL PROPERTY
Property – intellectual property
Property = tangible or intangible entity that is owned by a person or jointly by a group of
people.
Property: real property (land), personal property (physical possession to a person),
private property (property owned by legal persons or legal entities), public property
(state owned or publicly owned and available possession) and intellectual property.
How to recognize an Intellectual Property Right (IPR)?
Definition
Monopoly for the creator
Intellectual
Industrial: technical creations – esthetic creations – distinctive rights
PROPERTY LAW IN FRANCE, GERMANY AND ENGLAND
Civil law (civil code basis) and common law traditions (case law basis)
CIVIL LAW – FRANCE
Property law: part of patrimonial law
French Civil Code (1804)
o Focus on land
o Historical development: from the feudal regime to the French Civil Code
1
,Lieke Spruit (B7) Property Law
Concept of 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.”
Types of property rights (limited enumeration): Art. 543 Cciv Numerus clauses
(Germany)
o “(…) on an object one may have a right of ownership, a mere right of
enjoyment or only a right of servitude.”
CIVIL LAW – GERMANY
German civil code (1900)
Based on Roman Law
Content similar to French law
o Right of ownership (but restricted to only corporeal objects – para. 903)
Numerus clauses but role of courts Limited enumeration (France)
COMMON LAW – ENGLAND AND WALES
No civil code
o Amalgam of statutory and judge-made rules
Distinction between real property (land) and personal property (things)
o Personal property is diferent from personal right!!
Real property
o Feudal basis
o Judge made and statutory intervention
Personal property
o Little statutory intervention
Numerus clauses
No right of ownership but focus on possession
HISTORICAL DEVELOPMENT OF PROPERTY LAW
PROPERTY LAW HISTORY
Roman law
The feudal system and property law: the duplex dominium (dominium directum
and dominium utile) and the importance of land as object of property law
The French Revolution: the abolishment of the feudal system (in Scotland only in
2004 and Ireland only in 2009)
Industrial Revolution: the growing importance of personal property (e.g. movable
assets and claims)
IP LAW HISTORY
Prehistoric times – potter’s stamps (marks)
Middle Ages – designation of ownership marks, production marks, printers’
monopolies (15th century)
King’s power to grant monopoly (letters patent)
19th century – first international harmonization of IP rules (Paris Convention for the
Protection of Industrial Property 1883)
2
,Lieke Spruit (B7) Property Law
20th century – expansion and development of IP system (biotech, computer
programs)
21th century – development of ICT, ‘virtual property’; are IP rights still sufcient?
NATURE OF PROPERTY RIGHTS: PROPERTY RIGHTS AND PERSONAL RIGHTS
Property rights
o E.g. France and Germany: ownership and limited property rights (e.g.
usufruct, right of servitude)
Personal rights
o Contractual rights (contract law), right to payment of damages (tort law),
right to payment of a certain amount of money as result of unjustified
enrichment (unjustified enrichment)
Property rights: absolute nature Personal rights; relative nature
a) Erga omnes (‘against the world’) a) Not efective erga omnes but only
b) Right to follow and right to inter partes
preference b) Personal duties (‘obligations’)
c) Principles of numerus clauses and
transparency
THE PRINCIPLE OF NUMERUS CLAUSUS AND TRANSPARENCY
Property law and law of obligations
Two tests to qualify a right as a property right
o Principle of numerus clausus
o Principle of transparency
Important: only when a right can be qualified as a property right, certain ground
rules apply
PRINCIPLE OF NUMERUS CLAUSUS
What is the principle of numerus clausus?
Two aspects:
o Number and content of property rights
o The way in which these right 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
Development of the principle of numerus clausus
Legal provisions
o Examples:
Art. 543 Cciv: “One can have, in relation to things, either a right of
ownership, or a simple right of enjoyment, or merely a land burden”
Section 1 of the Law of Property Act 1925
o Doctrine
The judicial interpretation of the principle of numerus clausus?
PRINCIPLE OF TRANSPARENCY
Two aspects
3
,Lieke Spruit (B7) Property Law
o Specificity
o Publicity
Possession
Registration
Policy
THE GROUND RULES OF PROPERTY LAW
Ground rules of property law Ground rules: 3 main categories of IP
rights
I. Nemo plus iuris rule (“intellectual property” and “intellectual
II. Prior tempore, potior iure rule property rights” are diferent!!)
III. Limited property rights have
priority over fuller rights (e.g.
I. Copyrights: expression of an idea
usufruct and right of ownership)
of a support, protection starts from
IV. Special protection (e.g.
the moment of the expression, no
revindication)
need for registration.
II. Patent: condition of novelty, non-
obviousness and industrial
application, negative rights
III. Trade marks: test of
distinctiveness of the signs in
comparison with existing signs of
other traders.
INTERNATIONAL AND EUROPEAN INITIATIVES TO UNIFY AND HARMONIZE
PROPERTY LAW
1. Property Law: mainly national law and mandatory
a. E.g. Lex Rei Sitae rule: the applicable law is determined by the jurisdiction
where the object is situated
2. Ways to harmonize property law
a. Binding international instrument (e.g. EU Directives)
b. Non-binding international instrument (e.g. model rules such as the DCFR)
c. Importing foreign elements in national property law (legal transplants)
3. Levels of harmonization
a. Harmonization at EU level
b. Harmonization at the level of the Council of Europe (e.g. Article 1, First
Protocol of ECHR)
c. Harmonization at international level
Legal framework IP law
1. International Law: Paris Convention, Berne Convention and Madrid System
2. International European Law: European Patent Convention 1973
3. Community Law (EU Law): Example of Directive 22/5/2001 (copyright); EU
harmonization (trademarks, designs); unification (EU trademark); Case laws
(CJEU)
4
, Lieke Spruit (B7) Property Law
WORKSHOP 1
WHAT IS PROPERTY LAW?
What lies at the core of property law?
o Objects are at the centre of property law.
What types of objects fall within property law?
o Objects can be classified as tangible or intangible properties.
What is the main distinction within property rights?
o Property rights are either absolute (ownership) or limited (servitudes,
usufruct)
What about terminology? Which countries use the following distinctions:
immovable/movables and land/goods?
o Civil law countries (immovable/movables) – common law (land/goods)
What is the diference between real property and personal property?
o Real property refers to land. Personal property refers to things which are
not land
OBJECTS OF PROPERTY LAW
What about:
o Animals
o Human body
o Human corpse
o Objects for public use
Economic justification of property law
MAIN DIFFERENCE BETWEEN PROPERTY LAW AND INTELLECTUAL PROPERTY
LAW
Property law coming from Roman law: from a classification of existing objects in
nature
Intellectual property law: covers creation of mind, an expressed idea non-existing
in nature without human mind
Important: reason why discoveries cannot be protected by IP law, because
existing in the nature
MAIN FAMILIES OF IP LAW
Trademark
o “Madrid system”; international registration of marks (1891 and 1989
WIPO), Community trademark system (EU, 1993)
Patent
5
