20. Property law Flashcards
What is property law?
- It is not a right against a particular person such as the contract partner or the tortfeasor; it is a right on a tangible object (in rem), valid against the rest of the world (erga omnes)
- e.g. The owner of a car who sells it has the right against the buyer of the car to be paid the price for which the car was sold
- The owner of a car who has been damaged unlawfully by someone else has a right against the tortfeasor to be compensated
- the owner of a car has a right to the car itself
What is common goods?
Common goods:
- Rivalrous in consumption: their use by one consumer prevents simultaneous consumption by other consumers
- Non-Excludable: it is not possible to prevent people who have not paid for them from having access to them
Tragedy of Commons
Experiment: grazing cows in a free-access parcel of land (Common)
- Each herder can take his cattle to the field
- Constant and repeated use of land spoils it and prevent its future exploitation
- Free access gives no incentive to any user to protect this future value, although its protection is socially desirable
=> indicates the inefficient outcome determined by the overuse of (partially) rival resources when freely accessible to every individual in each given moment
Property law as solution for tragedy of the commons
Legal rules for the allocation among individuals of exclusive rights of use and disposal of resources
Property law from an economi pov
- Incentive to work
- Incentive to maintain and improve things
- Avoidance of disputes and of efforts to protect things
- Property rights and market economy
- Property and contracts as the basis for voluntary exchange of goods among individuals
Basic features of property rights
- are valid erga omnes (differently from mere relative rights)
- The right-holder is assigned an exclusive right on his/her items
- The right-holder may exclude anyone from interfering with his peaceful enjoyment
- The right-holder is given specific recovery for his/her goods
- Anyone who wishes to remove the entitlement from its holder must buy it from him/her in a voluntary transaction
Why are property rights, rights in rem?
rights in rem: right on tangible object
regulate how individuals may use and dispose of things/goods
Movable v. immovable goods
- Movable is any property that can be moved from one location to another without being altered
- Immovable is any property that cannot be moved from one location to another without destroying or altering it
Civil law on movables and immovables
- Unitary system of property, covering all types of asset.
- Both movable and immovable things represent the potential objects of the absolute right of ownership
- Ownership as the primary property right on goods
Absolute rights of ownership in civil law
- Full-fledged power on goods: provided the law does not direct otherwise, an owner is free to do what he pleases. The law does not tell an owner what he can do with the “thing”, but provides expressly for the acts that they may not or must do
- Exclusive power on goods: the owner of the “thing” has an absolute right, i.e. a claim against any other individual to refrain from interfering with the enjoyment deriving from the “thing” granted to him/her
Common law on movables and immovables
Two separate branches of law
- Land Law (Real Property): immovables
- Personal Property: movables
Reason for the difference between civil and common (unitary v. separate)
permanent influence of the feudal tradition, based on interpersonal relationships between landlords and vassals (a holder of land by feudal tenure on conditions of homage and allegiance - crown) regarding land, has exercised a tremendous impact on the evolution of the common law, preventing the emergence of a unitary property regime encompassing different categories of assets
Land law (real property) in common law
- Absolute rights of individuals over immovables
- Based on the fictitious presumption of the Crown as the residual owner of all the land
- No formal rights of ownership
- Under the rules of common law, the Crown is still considered as the owner of all land; all others hold land in tenure.
- In the feudal system of landholding, the King could originally determine the content of the right granted to others in return for services
Modernization of Property law in common law
- Limitation and standardization of available property rights in respect to land
- Only two types of feudal rights on land are still available at common law:
- Sub: everthing still belongs to crown but 2 rights are recognized
- Fee Simple: entitles the holder to exclusive possession for an unlimited duration of time (functionally comparable to civil law ownership) - not the true owner but can still sell the good
- Term of Years: grants exclusive possession to someone else for a limited duration of time (functionally comparable to civil law usufruct)
Personal property law in common law
- Absolute rights over:
- movables (chattels)
- Choses in action (among others: claims, credits, shares, etc) => Only corporeal objects are things as defined by law.
- Mainly developed in different areas of law (tort law, commercial law, intellectual property law)
- In personal property law, the primary right is called “title”
- Title is the right of exclusive possession to a chattel. It is the most extensive entitlement to a chattel a person can have
