Tuesday, June 26, 2007
Sjef J.H.M. van Erp (University of Maastricht) has posted European and National Property Law: Osmosis or Growing Antagonism? on SSRN. Here's the abstract:
One of the pillars of the economic constitution of the European Union is what might be called freedom of property. Article 17 of the Charter of Fundamental Rights of the European Union and the corresponding article II-77 of the Treaty establishing a Constitution for Europe therefore declare that everyone has the right to own, use, dispose and bequeth his or her lawfully acquired possessions. It is, however, not really very clear what is meant by property and property rights in a private law sense. How can property rights or, to put it differently, rights against the world be defined at a European level? In the area of property law a search for common policies, principles, concepts and rules is badly needed. In this lecture a research map is drawn in which problem areas are presented as well as some suggestions are made as to where this search could lead to, taking the work on the Ius Commune Casebook Property Law as a starting-point. In this casebook an analysis will be made of the property laws of various Member-States to see which similarities and dissimilarities exist. To give but one example: the concept of ownership seems, at first sight, to be a typically civil law concept, whereas the trust with its fragmented ownership seems to be a typically common law concept. However, the common law freehold estate comes for all practical purposes very close to civilian ownership. At the same time civil law systems are more and more willing to accept trust relationships, with as a result a division between management and entitlement to benefits without however abandoning their traditionally unitary concept of ownership. This example, as well as other examples, show that under the surface of the differing rules, European property law systems share several leading policies and principles, although existing differences should also not be ignored.
[Comments are held for approval, so there will be some delay in posting]