Property Law (YR2 LLB RUG)

What is property law?

An area of law that is concerned with legal relationships between a person anda thing (right)

Characteristics of the law of obligations

a) Law of obligations: Concerned with legal relationships between persons

• Relative rights, personal rights, rights in personam

• Relative: Only binding on the parties therefore, only includes few formalities

• Freedom of contract

Characteristics of property law

Property law: Concerned with legal relationships between persons and things/rights

• Absolute rights, real rights, rights in rem

• Once property is transferred from A to B, B is the owner and his right of ownership must be respected. If you want to become the owner, you now have to deal with B. N now has rights in rem which are absolute.

• Absolute rights: Enforceable against the whole world (ergo omnes)

More formalities:

• A can sell an airplane to B if there is an offer + acceptance

• However A cannot make B the owner of the airplane as it is registered somewhere= more formalities required, such as registering the transfer in public registers.

Mandatory rules

• Nearly anything can be agreed on in a contract, but not everything can be given propriety effect= More limitations than in the law of obligations

Differences between personal and property rights

Personal right:

• Rights against a person

• Juridical relation between two or more specific persons

• Relative

Property right:

• Right to a thing

• Juridical relation between a person and a thing

• Absolute

What is the principle of droit de suite?

If you have a property right over an object, your right will follow that object

E.g. if B steals A’s bicycle, A’s ownership right follows the stolen bicycle= If A locates the bicycle, he can claim it back based on his right of ownership.

Droit de suite applies to other property right too, such as the right of usufruct and is not limited to ownership

What is the Nemu plus principle?

“A person cannot transfer something that he himself does not have

• To transfer a thing, the transferor must have the privilege to dispose of that thing

• If you do not have property rights, you cannot transfer them to someone else

What is the principle of priority?

The principle of priority determines which of two conflicting limited real rights prevails. Generally, the earlier right has priority over the later right, although the later right may become fully effective once the earlier right expires.

What is the principle of specificity?

Property right sonly exist with respect to a specific thing. As property rights are relevant for the whole world, it has to be sufficiently clear which object you actually own. If it is unclear or cannot be established over which object ownership rights exists a right of ownership does not exist= only specific things can be owned.

What is the principle of publicity/

The creation or transfer of property rights usually requires a form of publicity. If not published, 3rd parties are often protected against real rights they did not know existed.

What is the unity principle?

That what in common opinion is regarded as a unit is treated as such in law= small units together assemble a big unit.

What is the right of separation?

The holder of a property right is able to enforce his property right despite the fact that the possessor or holder of the item is bankrupt.

The bankruptcy must respect property rights of third parties

What is numerus clausus?

It is only possible to create and enforce those specific property rights that have been established in law. If a right is not on the list, it can be a right but not a property right.

• Typenzwang: Which property rights can be created?

• Typenfixierung: What content can a property right have?

What are examples of property rights?

1. Ownership

2. Limited real rights: Rights that are less than ownership, but still property rights

• Security rights: Rights that secure an obligation

• Rights of use

What are the objects of property rights?

1. Things

• Movables

• Immovables

2. Other assets

• Claims can be an asset over which a property right exists (claims that are neither movable or immovable, but intangible)

• Digital data

What is the difference between ownership and possession? (End of W1)

Ownership

• Right over a thing

• Property

Possession

• Direct/indirect control over a thing

• Pretention of ownership

What is combination (accessio)?

Where a movable thing becomes part of another movable thing, which must be regarded as the principal thing, which must be regarded as the principal thing.

When does something become ‘part’ of a thing?

1. A component part of a thing is anything commonly considered to form part of that thing.

2. A thing attached to a principal thing in such a manner that it cannot be separated therefrom without substantial damage to either, is a component of that thing.

What is the principal thing?

A thing shall be considered a principal thing where its value considerably exceeds that of a the other thing or it is regarded by common opinion.

What is commingling?

Commingling occurs when movable things belonging to different owners are intermixed so that they form a single thing. The usual consequence is that the former owners become co-owners of the resulting thing.

What is production? (End of W3)

The creation of a new thing. Who owns the new thing? The owners of original materials, or the persons creating the thing?

Dutch Civil Code: If a person creates a new thing out of one or more movable things, this thing is owned by the owner of the original things. If a person creates a thing for himself or has such a thing so created wholly or partially out of one or more movable things not belonging to him, he becomes the owner of the new thing, unless this is not justified having regard to the insignificant cost of its creation.

How to acquire ownership?

1. Original acquisition: A new property right comes into existence.

2. Derivative acquisition: The property right is derived from a predecessor instead of a new property/ownership right being created.

What are transfer systems?

In general transfers are characterized by 3 relevant elements:

1. Right of disposal

2. Legal basis (usually a contract)

3. Delivery

• Elements 2 and 3 are required for a valid transfer

• Element 1, the right of disposal is usually required, however exceptionally a transfer by a person with the right of disposal can be valid.

What is the consensual transfer system?

Solo consensu rule: The agreement/consensus between the parties alone causes the transfer, and ownership can be passed by a sales contract alone.

Creating an obligation to deliver actually transfers the ownership, meaning that just an offer and acceptance is a contract, even if you do not transfer the item yet and even if the the new owner has not paid yet.

What is the tradition transfer system?

The obligation does not transfer ownership: ownership is transferred only when a delivery is mad.

• Delivery: A formal act that makes ownership pass from one party to another

Tradition systems differentiate between obligatory and real agreements:

• Obligatory: Not only gives rise to rights and obligations but also triggers the propriety effects in the agreement: obliges the transferor to transfer property rights.

• Real: Affects the transfer of property rights: the transferor must have the power to dispose of the property rights which are the object of the real agreement.

What is the causal transfer system?

The legal reason for the transfer of ownership.

Requires a valid legal ground for a valid transfer. If there is something wrong with the title, the transferor fails.

• Avoidance or nullity of the causa traditiones (legal reason) invalidates the transfer and ownership remains with the original party.

A consensual system is necessarily causal

• In a consensual system, the contract itself passes ownership and without a contract (legal basis) there is no transfer.

What is the abstract transfer system?

Not necessary to have a valid title/legal basis on which to base a transfer on Tradition systems can be causal or abstract, as they distinguish between the underlying contract (causa traditionis) and the delivery that effectuates the transfer

• If the transfer is dependent on the contract → causal system, if not → abstract system

Transfer systems of different countries

Germany: Abstract tradition system

Netherlands: Causal tradition system

France: Causal consensual system

What is possession?

Control over an asset.

Relationship between ownership and possession:

• Requirement for transfer

• Presumption of ownership

• Acquisitive prescription

What is the right of disposal?

In order to transfer a thing, the transferor must have the right to dispose of that thing

• In general, the owner has the power to dispose

• However, it may happen that a non-owner has the right of disposal

E.g., the trustee in bankruptcy often has the right to dispose of another’s property

What is 3rd party protection? (End of W3)

An act of disposal by a person who lacks the right to dispose is invalid and no transfer occurs. However some protection exists such as if the 3rd party had no idea that the “item” was stolen.

What is a claim?

The right of one person (the creditor) to demand of another person (the debtor) a performance (to do, omit, or give something) → Personal obligation, active side of an obligation.