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44 Cards in this Set
- Front
- Back
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What is the definition of property law? |
Deals w/ entitlements (right to objects) Concerned with the rights that a person has against a considerable group of other persons concerning objects (incl. land, personal property, claims, trust, etc.) |
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What are the two types of objects? |
Corporeal= car or table, buildings, etc. (physical things) Incorporeal= intellectual property & rights to performance by another party- contract claims |
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How is property law in France? |
Central concept is the concept of ownership Property is focused on land One may have a right of ownership, a mere right of enjoyment or only a right of servitude |
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How is property law in Germany? |
Distinction between law of obligations and property= principle of separation Primary property right= right of ownership RESTRICTED TO CORPOREAL OBJECTS ONLY! |
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How is property law in England? |
Mix of statutory and judge-made rules Main division between real property (land-feudal basis) and personal property (things other than land- no feudal basis) Numerus clausus NO RIGHT OF OWNERSHIP, focuses on possession |
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What is an equity? |
Device by which rights can be held for the benefit of other persons or certain purposes |
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What are property rights? |
Rights are stronger than contractual rights Against the world (erga omnes) Binding against more than one person Can be claimed by anyone who's in control of the object |
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What are personal rights? |
Contractual rights, rights to payments of damages, undo an unjustified enrichment Rights that someone has against one or more specific other persons Personal right corresponds with personal duties Inter partes |
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What two tests are used to qualify a right as a property right? |
(1) Principle of numerus clausus (2) Principle of transparency |
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What are the two aspects of numerus clausus? |
(1) The number and content of property rights (2) The way in which these rights can be created, transferred or destroyed |
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What is the rationale behind numerus clausus? |
To limit a party's autonomy & authority to create new property rights Property law is mandatory law |
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What is an usufruct? |
Limited property right
Only exists for the duration of the life of the right-holder |
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What is the principle of transparency? |
It should be transparent to everyone concerned |
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What are the two aspects of transparency? |
(1) Specificity (must be specific and clear) (2) Publicity (accessible for the world) Given the strength third parties must be able to obtain info about such a right Publicity is vital in property relations |
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What are the four ground rules once a right has been qualified as proprietary? |
(1) Nemo dat//nemo plus irusis= one cannot transfer more than one has (2) Prior tempore= earlier right prevails over a newer right (3) Special protection (e.g. to revindicate) (4) Limited property rights have priority over fuller rights |
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What are the three main categories of IP rights? |
(1) Copyrights= expression of an idea of support, protection starts from moment of expression (2) Patent= condition of novelty, non-obviousness, negative rights (3) Trademarks= Test of distinctiveness |
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What are the fundamental differences between civil & common law for possession & ownership? |
Civil law= Distinction= ownership & possession (separated from tort law instruments) Common law= Does NOT have a concept of ownership but focuses on the protection of possession (land and goods) -Protection of possession is achieved by tort law |
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What is the distinction between ownership and possession? |
Ownership & LPR= entitlements a person may have with respect to an object Possession= Factual control over an object. Function= to indicate the actual existence of property |
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What is the legal presumption in France & Germany regarding possession? |
That the possessor is also the owner |
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How is possession protected in civil law? |
Possessory actions Aim= fast judicial protections against an interference |
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How is ownership protected in civil law? |
(1) Vindication (2) The right of removal of actual interference and the right to an injunction |
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How is possession protected in common law? |
Covered mainly by tort law Primary remedy= attribution of damages -Can be awarded even if there is no real damage but an infringement of a property right |
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What two types of interferences are there in common law? |
(1) Dispossession of the holder of a property right and/or the possessor (2) The disturbance of the enjoyment of the possession |
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What does possession concern in France? |
Corporeal objects and claims in a corporeal title (e.g. claim on an official contract)W |
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What two factors does possession require in France? |
(1) Corpus= actual control over the object (2) Animus= will to hold the object as an owner -Possession termites when one of the two is lost -Corpus w/o animus= detention |
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What is detention? |
Corpus without animus Cannot acquire ownership through acquisitive prescription W |
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What is acquisitive prescription? |
Get ownership through a lapse of time |
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How 3 possessory actions are there for immovables in France? |
(1) Action of restoration= where a person who was forcefully evicted from his land may seek to return to his land (2) Action of complainte= where the enjoyment of possession was disturbed by other, non-violent acts. -Can only be brought when one has enjoyed possession for 1+ years (3) Action of denunication of new works= where a person can order halting of construction on adjacent land if he feels disturbed by it -Can only be brought when one has enjoyed possession for 1+ years |
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How is ownership protected in France? |
(1) Vindication= seek return of object (2) Injunction= court order |
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How is possession in Germany? |
Not defined Focuses on protection Corporeal objects ONLY |
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What four types of possession does Germany have? |
(1) Eigenbesitz= a person who holds an object for himself (e.g. a finder or a thief) -Wishes to keep (2) Fremdbesitz= a person who holds an object for another (e.g. a tenant or a borrower) -Will to return (3) Direct possessor= who has actual control of an object (by original or derivative acquisition) -Terminated by loss of control over object (4) Indirect possessor= who exercises possession via an intermediary or agent (result of legal transaction, i.e. lease) -Terminated by loss of intermediary |
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How is possession protected in Germany? |
(1) Self-help= right to defend their position (2) Possessory actions (judicial protection)= recovery of possessions and abatement of interference or injunction (3) Claim for restoration of possession= applies only to movables for former possessor |
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What two types of protection are there for possession of land in England? |
(1) Dispossession= right to recover possession from a person who entered the land w/o his consent -Self help or court order (2) Other interferences= trespass to land and nuisance -Nuisance= pollutants (smoke, wastewater, smells, noises) -Fault needs to be established -Three remedies: damages, injunction & limited form of self-help -Torts of trespass to land= damages, plus injunction |
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How are goods protected for possession in England? |
Conversion Any person who, however innocently, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of those goods for his own benefit or that of another person, is guilty of conversion |
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What are the two perspectives of ownership? |
(1) Relationship between the owner and the object -Right to use (usus) -Right to enjoy the fruits (fructuse) -Right to alienate (abusus) (2) Right of the owner vis-a-vis third parties (protection of ownership) -Vindication -Injunction |
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What are the four limitations on ownership rights? |
(1) By law (2) By contract (e.g. non-transferability clause) (3) Neighbour law (immovable property only) (4) Doctrine of abuse of rights (if party acts w/ sole intent of causing nuisance to his neighbour) |
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What is real servitude? |
Limited property right granting access to a neighbour over an owners land Comes into existence by agreement or law Only in France (not LPR in Germany) |
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What are the features of a real servitude? |
Two owners of two pieces of land Two pieces of land, dominant (benefit) and servient (has to tolerate/do something), near to eachother |
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What are personal servitudes? |
Limited property rights (movables and immovables) |
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What are the two types of personal servitudes? |
(1) Usufruct (2) Right of use & habitation |
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What is an usufruct? |
Limited property right which grants the holder right to use & enjoy thing of the owner & take the fruits If abusus= can no longer enjoy usus and fructus For life, or term agreed upon When done= ownership becomes full again -Can be assigned to a third party in France, in Germany NOT! |
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What are the obligations of an usufructory? |
Take care of the object Inventory of the assets Pay the costs of repair and maintenance Preservation of object from substantial changes |
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What are the rules on right of use & habitation? |
Use= movables and immovables Habitation= immovables only Both rights cannot be assigned nor leased Same obligations as an usufructory |
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What is the right of superficies? |
Separation of the ownership of a building or construction from the ownership of land (immovables only) General rule= owner of building on land follows ownership of land, but via agreement b/w parties, they can be separated Content detemind by agreement You can use and enjoy but NO transfer |
