Chapter 3: Basics of property law Flashcards
property law
part of private law taht deals with property ownership and other real rights = rights in REM = rights attached to a good
dispose
to transfer ownership to someone else/ to create limited proprietary rights in the property
ownership definitions
- French civil code:
the right to enjoy and dispose of objects in the most absolute manner, provided they are not used in a way prohibited by statuted or regulations. - German civil code:
the owner of an object may deal with the object at his discretion and exclude other from ever influence - swiss civil code:
1) the owner of an object is free to dispose of it as he or she sees fit within the limits of the law.
2) he or she has the right to reclaim it from anone withholding it from him or her and to protect it against any inwarrented interference.
difference between a legal and a economical ownership
- legal ownership: just legal perspective
- economic owner: not owner in a legal sense, but entitled to exclude others from the use
possession (def + variables)
physical control (not ownership- just factual)
- direct physical control: exercised by possessor.
- indirect physical control: exercised by means of another.
initial acquisistion
the first purchase whether obtained while a Member or prior to coverage under the Plan
derivative acquisition
refers to the acquisition of ownership through transfer of ownership. This is a case of buying/taking the right rather than establishing original ownership. It is a derivative mechanism of acquiring ownership.
good faith acquisition? (situation, interests)
buyer buys good from seller who is not owner
-> who is the owner?
- previous owner remains owner because lost object
- buyer: became owner because he payed for it
requirements of “good faith acquisition”
- delivery of good
- transferee acquires the goods for value
- transferee does not know / cannot be expected to know that the transferor had no right / authority to transfer ownership
“deed registration system”
(exception of acquisition of immovable goods)
= chain of titles needed to prove ownership -> ownership can be proved with sales agreements
usufruct
(is another real right)
= right to use property like an owner (to use + to keep the fruits= ususfruct, but not to sell / alienate it! )
Servitude
(is another real right)
= right to specific use of (piece of) immovable property.
in favour of another immovable property (not in favour of a specific natural person!; the actual owner of the dominant piece of land can exercise the servitude.)
proprietary security
(is another real right)
= based on movable goods (“pledge”) or based on immovable goods (mortgage, hypothèque)
- content: right to sell a movable / immovable good (that is owned by another party) in a forced sale (auction)
personal security
refers to the safety of human beings and the ways in which they are enabled to live a full and productive life with dignity, without feeling afraid or at risk.
retention of ownership
= ownership of the goods remains with seller until the buer pays the price , risk is transferred to the buer at moment of delivery.
- the seller, while transferring possession of the sold goods to the buyer, retains ownership in the sold goods as security until the buyer later at an agreed time pays the (full ) purchase price
- in the buyer’s bankruptcy or where other creditors bring executions against the buyer, the seller may invoke this right of ownership which provides full protection. the seller may repossess the sold assets from the bankruptcy estate. ..;
