учебный год 2023 / (Encyclopedia of Law and Economics 5) Boudewijn Bouckaert-Property Law and Economics -Edward Elgar Publishing (2010)

Property rights in legal history 25

property. Not every act of nuisance can be considered to be unlawful: this depends on the nature, extent and duration of the impediment and also on the damage caused by it. If the nuisance is regarded as unlawful the law will normally give the neighbours a tort action against the troublemaker (Van Dam, 2006, pp. 389–396; Pitlo, Gerver and Hidma, 1995, pp. 199–205).

Article 1, First Protocol of the European Convention on Human Rights (ECHR), expresses the protection of the right of ownership against infringements of third parties. Article 1, subsection 1 provides that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law’. By recognizing the right of peaceful enjoyment, article 1 guarantees the right of property, according to the European Court of Human Rights (Marckx v. Belgium, application no. 6833/74). The right of property has to be understood in a broad sense. The Court stresses that: ‘possession has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions”’, (Gasus Dosierund Fördertechnik GmbH v. The Netherlands, application no. 15375/89). Rights and interests that do not have a financial or economic value are not covered by article 1 (Barkhuysen, van Emmerik and Ploeger, 2005, pp. 109–112).

The second sentence of article 1, subsection 1, provides that no one can be deprived of his or her property, except when the deprivation is in the public interest and can be justified by an action permitted by law. This sentence gives the states a certain margin of appreciation when judging if the law governs the aim of any interference, as well as its proportionality and the preservation of a fair balance (J.A. Pye (Oxford) Ltd v. The United Kingdom, application no. 44302/02). The legal measure taken has to be reasonable and proportional having regard to the goal aimed for: there has to be a ‘fair balance’ between the public interest on the one side and the protection of individual property rights on the other side (Van der Pot, Elzinga and de Lange, 2006, pp. 440–443). The protection offered by article 1 against expropriation by a state is a minimum standard. The states are free to offer additional protection.

10.2Infringements on the uniformity of ownership

Many codes that had been developed in the countries on the European mainland following the French Revolution contained the principle of uniform ownership. However, the legal development in several countries during the last two centuries casts doubt on the validity of uniformity as a characteristic feature of ownership. More and more uniform ownership

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was regarded as rigid and inflexible. This development results from the demand of society that struggles with the uniform concept. As a consequence of this development the distinction between relative or personal rights on the one hand and absolute rights on the other hand has become vague, which in several cases led to divided ownership. There are many examples to name. Almost every country has its own exception to the principle of uniform ownership, but a complete enumeration goes beyond the reach of this chapter.

The German foundation of a uniform concept of ownership is laid down in §903 Bürgerliches Gesetzbuch (German civil code): ‘The owner of a thing may, to the extent that a statute or third-party rights do not conflict with this, deal with the thing at his discretion and exclude others from every influence’. But also the German legislator created deviations on the uniform concept of ownership. A remarkable example of divided ownership in German law is the Treuhand (trust).

With Treuhand the Treugeber (settlor) transfers the Treuhand-ownership to the Treuhänder (trustee). The Treuhand-ownership can be seen as the juridical ownership with regard to an object. Although the Treugeber has transferred his juridical ownership to the Treuhänder, he retains the economic ownership (Schulte-Bunert, 2005, pp. 14–27; Wieling, 2006, pp. 799–818). The concept of Treuhand shows major similarities to the common law express trust.

A recent development in the field of divided ownership is the French fiducie. The fiducie was introduced into the French civil code by statute of 19 February 2007. The fiducie is defined in article 2011 of the civil code: ‘La fiducie est l’opération par laquelle un ou plusieurs constituants transfèrent des biens, des droits ou des sûretés, ou un ensemble de biens, de droits ou de sûretés, présents ou futurs, à un ou plusieurs fiduciaires qui, les tenant séparés de leur patrimoine propre, agissent dans un but déterminé au profit d’un ou plusieurs bénéficiaires’.

In the case of fiducie the property is transferred by the settlor to the fiduciary, under an obligation to hold it for the benefit of another, the beneficiary. This type of fiducie is often defined with the term fiducie-gestion. Besides the fiducie-gestion, French law distinguishes another two types of fiducie, the fiducie-sûreté (security trust) and the fiducie-transmission

(transmission trust).

The fiducie-gestion gives the opportunity to create arrangements equivalent to the common law trust already discussed above. The fiducie-gestion is often indicated as the French trust (Bell, Boyron and Whittaker, 2007, pp. 340–341).

As we have seen above, both developments, the German Treuhand as well as the French fiducie, lead to divided ownership.

Property rights in legal history 27

Conclusion

Ownership is the most comprehensive right a person can have regarding an object. There has always been a strong interaction between law on the one side and the needs of society on the other side. Therefore, ownership cannot be precisely defined because its meaning and reach adapt to the social needs. This interaction is reflected clearly in Roman and Germanic ownership.

Although Roman ownership has been refined during the three main historical periods, each characterized by its own polity: the Monarchy, the Republic and the Principate, the characteristic of absoluteness should be mentioned as the fundamental characteristic of the right of ownership. Absoluteness can be defined as the independence of ownership relating to other rights and the absolute power of the owner to exercise authority over the object.

On the contrary, Germanic ownership cannot be characterized as absolute, but is, more than Roman law ownership, restricted by interests of the community; the Germanic owner has to take account of the interests of third parties within the community. This social content derives from the notion of collective ownership that was the basis for the Germanic individual ownership.

The interaction between the social needs on the one hand and ownership on the other hand underlies the different forms of ownership in a particular society. The reasons for acknowledgement of the plurality of ownership differed per society. Roman society was familiar with different types of ownership, such as ownership attributed to foreigners and ownership concerning immovables in the province. But the two most important types of ownership were the quiritarian ownership and the praetorian ownership. Quiritarian ownership can be defined as civil ownership. Praetorian ownership comes into being only when strict appliance of general rules would lead to an unreasonable outcome. In the praetorian ownership the social need is laid down to amend the hardship caused occasionally by the quiritarian ownership.

The medieval feudal system also knew different types of ownership which were called dominium directum and dominium utile. In contrast to the Roman dominium these were not different types of ownership which existed next to each other, but types of ownership that emerged after the division of the original ownership. The dominium directum was treated as the actual, but bare right of ownership, of which the dominium utile, the right of exclusive use of the object, was separated.

These different types of ownership, often referred to as duplex dominium, were not created out of the need to correct hardship, as was the case in Roman law, but out of the need to give expression to the relations between vassals and lords in the feudal system.

English ownership concerning land is, like medieval ownership, based

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on the feudal system and can be defined as divided. As in the Middle Ages on the European continent divided ownership can be explained as splitting of the right of ownership in a right of use and in a right of bare ownership.

With the French Revolution the natural interaction between society and ownership ended abruptly. One of the core notions of the French Revolution was equality, but equality was not found in the feudal system. The commitments derived from the feudal system were in general formulated in the interest and advantage of the aristocracy. The legal basis for these commitments was given by the possibility to split the ownership. By bringing down the feudal system, divided ownership was abolished; the only kind of ownership accepted was the dominium utile. From that moment on ownership was defined as absolute and unitary.

The unitary and absolute concept of ownership has, even after the Napoleonic era, been continued by the different countries on the mainland of Europe, mainly out of fear of inequality. The English divided ownership, on the other hand, was not replaced by the unitary concept of ownership, because England was not involved in the French Revolution.

The consequence of strict adherence to the unitary and absolute ownership is that ownership can no longer adapt freely to the needs of society. However, in the centuries following the introduction of the absolute and uniform ownership the possibilities to restrict the absoluteness of ownership have grown. Infringements on the absolute ownership characteristic are possible when they result out of written or unwritten law, or when resulting from the rights of others. In this way the social needs are reflected in the reach of ownership.

Concerning the unitary ownership characteristic, society has created different kinds of ownership, which can be seen as forms of divided ownership, as the Treuhand (German trust) and the fiducie-gestion (French trust). Both forms of divided ownership are codified.

With the possibility to limit absolute ownership and with the increase of the number of different kinds of ownership, the unitary and absolute concept of ownership has in fact come to an end.

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(the respective legal system applies only a principle of numerus clausus) (Akkermans 2008, 403). Secondly, once it has been established that the right which was created is a property right, a fundamental starting point of property law is that a property right cannot exist without a specific object. This general starting point is known as the principle of specificity (Johansson 2009, 88). Thirdly, connected to the principle of specificity, another fundamental starting point is that, because of the ‘against the whole world’ effect of property rights, third parties must be able to know about the existence of such a right. This is the principle of publicity and can take the form of possession, e.g. in case of movable objects, or registration, e.g. in case of immovable objects (Cámara-Lapuente 2005, 798; Cantero 1998, 363). Together, these two principles are also known as the principle of transparency (Van Erp 2006a, 14). Finally, there is the principle of accessority. This concept is more controversial as a principle and has been classified as a technical rule before (Van Erp 2006a, 14–17). Accessority explains dependence between two elements in the law of property. Traditionally this concerns the intricate relation between a property security right and the claim the performance of which is being secured by such right. However, accessority is also used, especially in the Romanic legal tradition, to describe the relationship between the object of a property right and the property right itself.

Ground rules are also of a general nature and apply in all legal systems. These ground rules are the following. First, a holder of a right cannot transfer more than he has, known as the nemo dat rule. Second, the rule that older rights come before newer rights, the prior tempore rule. Third, the rule that limited property rights have priority over fuller rights, and, final and fourth, the rules that protect property rights.

These principles and ground rules create the basic framework that is characteristic of Western systems of property law. Taking this framework as a starting point offers a structured approach to find and analyse similarities and differences. Throughout this contribution these principles and ground rules will therefore be as a basis for comparison. What is highly intriguing to see is that systems of property law seem to share a common catalogue of property rights. Although differences exist, the core body of property rights in the various property law traditions is very similar. The explanation used for this similarity that the civil law systems share is that they are all rooted in Roman law and that certain aspects of the Roman law catalogue of rights seem to have influenced the development of the common law (Akkermans 2008, 411). Still, the differences at a technical level between the civil law and the common law traditions should not be forgotten or underestimated (Van Erp 2006b, 1043). This chapter therefore will first consider this common body of property rights. After that

Property rights: a comparative view 33

some important developments in the law of property, which is not a static area of law at all, but, on the contrary a highly dynamic legal field, will be discussed before the principles and ground rules will return once more in the conclusion.

2.Property rights

Property rights are rights that have effect against the whole world. It is this characteristic that distinguishes them from personal rights, which generally only take effect between the parties that create them (Reid 1997, 225). Consequently, property law and the law of obligations are separate areas of private law, each providing their own rules on creation, enforcement and destruction (Füller 2006, 10). Furthermore, in property law party autonomy is limited, whereas it is cherished in the law of contract.

The limitations on party autonomy in the law of property are best visible when looking at the numerus clausus of property rights. Parties are not free to create any property right they desire. Instead, they must comply with the requirements set forth by property law and choose one of the property rights made available in the legal system (Typenzwang) and abide by the restrictions the law imposes on the content of these rights (Typenfixierung) (Wiegand 1987, 633). These limitations make it possible to provide an overview of the property rights that are usually available. In this overview, the law of France, Germany, the Netherlands and England will be taken into account. French, German, and English law represent three of the major legal traditions in Europe (Glenn 2006, 125). The law of the Netherlands, which originally followed the French tradition, but which since 1992 is more in line with the German tradition, offers interesting insights into a system that attempts to combine these traditions.

2.1Primary rights: ownership

In any legal system there is one property right that forms the source from which the other property rights may be derived. This can be done on the basis of a subtraction of powers from the most extensive right or on the basis of limiting the powers contained in the most extensive right (Struycken 2007, 361). This most extensive property right has also been named primary right to emphasise its importance in respect to the other property rights, which have been named lesser rights (Akkermans 2008, 298). These lesser rights are also called limited property rights as they limit the owner in exercising his powers and the right itself is more limited than the right of ownership.

The most extensive or primary right in civil law systems is the right of ownership. This right is the paramount entitlement a person can have with regard to an object. Whether such an object may be tangible, movable

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and immovable, or intangible, depends on the legal system. In French law all of these objects can be subject matter of the right of ownership, in German and Dutch law the right of ownership is restricted to tangible objects. Intangible objects, especially claims, are subjects of property law, but incapable of being owned. Instead, the term entitlement is used. In practical terms the differences between ‘owning’ a movable or immovable tangible object and being ‘entitled’ to a claim may be limited, as both rights can be transferred and used as security by creating a limited security right (Gretton 2007, 802).

The right of ownership as the paramount entitlement provides its holder the right to use, enjoy and dispose of his right. Moreover, in French doctrine the right of ownership is awarded three characteristics. First, the right is absolute, it cannot be fragmented into two types of ownership (Terré and Simler 1998, 107). This characteristic should be seen as a rejection of the duplex dominium, i.e. fragmented ownership, that was known under the ancien régime, i.e. the law that applied in France before the French Revolution. Secondly, the right of ownership is an exclusive right (Chabas 1994, 84). This indicates that only the owner is entitled to use, enjoy and dispose of the object of ownership and only he may exclude anyone from interfering with these powers. Thirdly, the right of ownership is perpetual (Chabas 1994, p. 103). The perpetuity of the right of ownership is perhaps its most important characteristic; it exists as long as the object of ownership exists. When a limited property right is created that is derived from the right of ownership the right of ownership will always exist longer than the limited property right. Would the right of ownership cease to exist, the limited property right will automatically be extinguished also. This has been named the residuary characteristic of the right of ownership (Honoré 1961, 126–128).

Finally, the right of ownership is protected with a special action known as revindication, originating from the Roman rei vindicatio (Watson 1968, 96). This action enables the owner to take back the control of the object of his ownership. The revindication, contrary to the actions granted in contract law, entails specific enforceability only. Furthermore, the right of ownership is protected with a special action to stop interference with the enjoyment of the right. This action, known as the actio negatoria, stems from Roman law and also entails specific enforceability only (Kaser and Knütel 2003, 171). The right of ownership can therefore be protected in a positive way, against unlawful possessors such as thieves, as well as in a negative way, against interferers such as trespassers.

Because of its perpetual nature and the specific enforceability of the right of ownership, English law does not recognise such a right (Swadling 2007, 280–282). English property law follows a more fragmented approach and