Comparative_Property_Law

the holder of that right which comes into existence once the right has been given protection as an exclusive right, and of the resulting disadvantages that may arise for others. The development of digital technology also provides a further example of a possible new object of property law. Can the right to use a wireless network be regarded as an asset that can be the object of the law of property? When I have the right to use a wireless telephone or data network, is my right of such a nature that I can sell and

transfer it to someone else? Is this not what an individual mobile phone user does when he sells and transfers his mobile phone with a prepaid sim card? Telephone companies that set up a mobile phone network and take care

of maintenance may sell the right to use that network (‘capacity’) to other phone companies. Does the right to use the network thus become an object of property law? A different species of new objects of property law consists of rights created by public authorities, such as licences. To implement the Kyoto Treaty, the European Union has created a system of trade in emission rights, following developments in the United States allowing such trade.52 An emission right is defined as ‘an allowance to emit one tonne of carbon dioxide equivalent during a specified period, which shall be valid only for the purposes of meeting the requirements of this Directive and shall be transferable in accordance with the provisions of this Directive’.53 A public law licence (‘allowance’) is transformed into an object of private property law.

Of course, opinions will differ as to whether a new object of property law has to be accepted. A good example is the question whether the right to withdraw money under a given credit line can be seized by creditors. The German Federal Supreme Court has given a strongly affirmative reply; the Dutch Hoge Raad has given an equally strongly negative reply.54 Various aspects were considered. What is the nature of a client's right to withdraw money? Is it really a full-fledged right, or merely the power to create such a right (what in German law is called a Gestaltungsrecht)? If it is merely the

latter, than it has not reached the level of maturity required to be considered a right that someone might ‘own’ and thus could be seized by a creditor.

Once a new object of property law has been accepted the question arises how this new object can be fitted into the system of property law. Certain concepts and rules may be applied irrespective of the classification of the various objects (such as immovable, movable, a claim, intellectual property). With regard to the establishment, transfer, or termination of a property right, however, property law systems use requirements that differ according to the nature of the object. Delivery of an immovable is generally done by

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registration of a formal document of transfer, whereas delivery of a movable is performed by transfer of possession. The nature of the new object of property will thus play a prominent role. Licences, such as emission rights, originate in public law and have a very special content. This will influence the answer to the question which property concepts and rules should be considered applicable. It may even be that, if the new object cannot readily be fitted into the existing system of property law, new concepts and rules have to be developed. This can go as far as the creation of a new property right. ‘Ownership’ of emission rights does not necessarily have to mean the same as ‘ownership’ of a movable physical asset. Given the time limitation of such rights, it may be questioned, for example, whether the pledging or mortgaging of emission rights should be possible.

Whether a new property right has to be created is a question that does not only arise with regard to new, but also with regard to old and well-recognized objects of property law. Thus, the question is sometimes asked whether

a special property right should be created giving ownership of a cable network, or a pipeline, to the person operating the cable network or pipeline. Generally, the law of servitudes is sufficiently flexible to accommodate the interests of the companies building and using cable networks or pipelines, vis-à-vis those who own the land through which or over which the network or pipeline passes. However, it may be extremely burdensome and expensive to agree on the creation of a servitude with all of the landowners involved. One way to solve this problem might be a reformulation of the law of servitudes, as can be found in the American Restatement on Property Third (Servitudes).55 The restatement follows a pragmatic and non-formalistic approach. It leaves the parties involved all the freedom they need to pursue their individual interests, albeit within a mandatory framework aimed at protecting the general interest. The leading maxim seems to be: no more mandatory rules than needed. An alternative solution might be the creation of a new property right for the benefit of those who exploit a network

or pipeline, entitling them to the network or pipeline irrespective of its location.56 These questions have become very acute in jurisdictions where networks used to be in the hands of the government, but have subsequently been sold and transferred to private enterprises. In such circumstances it becomes important to know exactly what is sold and transferred, not just with respect to the physical aspects of the network, but also with respect to the property rights involved.

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V. The Osmosis of National, Regional, and Global Property Law

The integration of markets has a growing impact on property law. Reference has already been made to the influence of European law on the property law regimes of the member states of the European Union. I have mentioned the EU directive on trading in emissions, which was enacted to implement the Kyoto Protocol. Whether a member state is willing to accept emission rights as a new object of property law or not has become irrelevant. European

law obliges the member states to accept this. How these new rights are to be fitted into the various national legal orders is another matter. To some degree the directive gives guidance, but for the rest the solution depends on the various national legislatures. The result is a paradox. The EU emissions directive creates supranational legal unity. At the same time, the result is fragmentation and inconsistency. The member states are free to fill the lacunae in the directive by national law. Consequently, divergence between the various national legal systems may increase rather than decrease. Furthermore, fragmentation is increasing at the national level because next to property law rules emanating from the national legislatures, those based on European law have to be applied.

The same phenomenon can be seen at a global level. The UNIDROIT Cape Town Convention on International Interests in Mobile Equipment introduces a uniform security interest for, among other objects, aircraft engines and railway rolling stock.57 This interest has to be registered in a worldwide accessible computer registration system. Particularly for railway rolling stock this will be an innovation in many countries. Should national legal systems now treat a rail carriage as if it were registered immovable property? What are the consequences for other movable objects of great value, such as trucks? Should not trucks also become objects of registration, which can be mortgaged by way of entry of a mortgage deed in a computerized system? These matters are not resolved by the Convention and must therefore be settled at national level, with the risk of diverging national responses. A comparative analysis of the impact of the uniform regime may provide an insight into the problems caused by it, how the various legal systems have reacted, and in which way these problems can be solved uniformly and avoided in the future.

The preparation of a uniform regime and the analysis of the impact of such a regime on national law can only be done adequately on a comparative basis. In this way models can be discovered, compared, and evaluated, and their advantages and disadvantages can be assessed. In view of the

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pragmatic, flexible and open approach adopted by it, Article 9 UCC has become a leading model in the area of personal property security interests. The Cape Town Convention is clearly to a large degree inspired by Article 9 UCC. The same is true of the model law on secured transactions drafted by the European Bank for Reconstruction and Development, which has been designed for countries with economies in transition after the collapse of communism.58 The European Bank for Reconstruction and Development model is also inspired by the English floating charge: a charge on the whole of a company's assets, both present and future. The latter aspect of that model, in particular, may create problems in civilian law systems that adhere strictly to the principle of specificity. A floating charge is essentially what was called before the French Revolution a general mortgage; it had been abandoned following the Revolution given its negative effect on economic life. The renewed acceptance of such mortgages (a phenomenon that can be described as Wiederkehr der Rechtsfiguren) does, however, fit in well with a broader global development towards acceptance of general security interests that rest on both present and future property to secure both present and future debt.59 With regard to real security on immovables, German mortgage law is regarded as an interesting model. Under German law a mortgage over an immovable does not have to be accessory, which means that when the loan is repaid the mortgage is not automatically extinguished. This type

of mortgage is referred to as Grundschuld and it has inspired proposals to introduce a European-wide uniform mortgage on real property, the so-called ‘euromortgage’.60 Also, recently a French working group chaired by Michel Grimaldi, which proposes a fundamental revision of the law on personal and real security interests and the addition of a new book on security interests to the French Code civil, suggested the introduction, in France, of a nonaccessory type of mortgage (hypothèque rechargeable).61 The new Dutch Civil Code has also acted as a point of reference, especially in countries with an economy in transition. To what degree Dutch property law can continue to be a model at the European level is unclear. Various fundamental policy choices made during the drafting of the Dutch rules on property law are now being questioned as a direct result of European and global developments. This is especially true for the ban on the use of ownership for security purposes, as laid down in Article 3:84(3) BW. Ownership is used very widely for security purposes and it can therefore cause no surprise that in the Grimaldi report this is accepted for France.

I have only referred to a few legal systems that may be a potential model for a future uniform property law. Other legal systems could have been mentioned. An alternative would be not to take a particular national model

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as a starting-point for legal unification, but rather a truly international one that would have to be devised on the basis of thorough comparative analysis. That model would then be tested by making it compete with the existing (national) models. A European example in the area of private law is the socalled ‘Common Frame of Reference’ which is, as yet, in its drafting stage. It aims at establishing a system of principles and rules that can be used as a tool to analyse the existing European law (the acquis communautaire) from the point of view of consistency and effectiveness, and that can serve as a basis for future European law.62 Based on this common frame of reference

a so-called ‘optional instrument’ will be developed that may be chosen by contracting parties involved in European business transactions. This common frame of reference, although its focus is primarily on contract law, may also deal with certain property law issues such as personal property security interests, given the importance of security for intra-European trade.

VI. Final Remarks

Property law, and hence comparative property law, once considered to be fairly static, is turning into an increasingly dynamic field of law. This is to a considerable degree a consequence of European and global economic

integration, and the resulting legal integration.63 The national property laws, whether belonging to the civilian or the common law tradition, will all be affected by this change.

The law on land registries provides a good example as to how the development may proceed. Here the impetus for unification is a desire to make information from a land registry that is available at the national level also accessible to others outside the boundaries of national jurisdiction.

In this way foreign service providers, such as notaries and advocates, would have the same information as local service providers and could use that information to assist their clients more effectively when they want to enter the foreign real estate market. National land registries will then have become an international source of information.64 The very moment when this happens, however, further steps will be required. Foreign lawyers will want to understand the information given to them. The mere translation of foreign legal terms (what does ‘owner’ mean?) will then hardly be sufficient. A simple translation can hide more than the original term. Also, it may lead the foreign lawyer to believe that he or she fully understands the foreign legal regime. To avoid misunderstandings, it will be necessary to draft not only a list of translations of legal terms, but to provide the context of these translations. In other words, multilingual glossaries will be needed. They

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cannot be written without in-depth comparative property law studies. The creation of an integrated market of legal services may, however, require even more. In order not only to understand the information available from the various land registries, but also to use it, pressure will arise to create a uniform legal regime, particularly with regard to security interests. This is the only way in which, at the end of the day, truly efficient access to other markets will be possible. In fact, this development has already started in Europe in the form of proposals concerning the euro-mortgage and worldwide through the creation of the (UNIDROIT) international security interest in mobile equipment.

My final conclusion, therefore, is that comparative property law has, for some time, been in the shadow of the more dynamic law of obligations. But this is now changing, and the comparative study of property law will rapidly gain importance.

Bibliography

Frederick H. Lawson and Athanassios Yiannopoulos (chief eds), International Encyclopedia of Comparative Law, vol VI: Property and Trust (1973–present) Find This Resource

•

•Worldcat

•Google Preview

Jean Georges Sauveplanne (ed), Security over Corporeal Movables (1974) Find This Resource

•

•Worldcat

•Google Preview

G. E. van Maanen and A. J. van der Walt (eds), Property Law on the Threshold of the 21st Century (1996)

Find This Resource

•Worldcat

•Google Preview

Peter von Wilmowsky, Europäisches Kreditsicherungsrecht: Sachenrecht und

Insolvenzrecht unter dem EG-Vertrag (1996) Find This Resource

•

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•Worldcat

•Google Preview

Richard H. Helmholz and Reinhard Zimmermann, Itinera Fiduciae: Trust and

Treuhand in Historical Perspective (1998)

Find This Resource

•

•Worldcat

•Google Preview

David J. Hayton, S. C. J. J. Kortmann, and H. L. E. Verhagen (eds), Principles of European Trust Law (1999)

Find This Resource

•

•Worldcat

•Google Preview

Jacobien W. Rutgers, International Reservation of Title Clauses: A Study of

Dutch, French and German Private International Law in the Light of European Law (1999)

Find This Resource

•

•Worldcat

•Google Preview

Ugo Mattei, Basic Principles of Property Law: A Comparative Legal and

Economic Introduction (2000)

Find This Resource

•

•Worldcat

•Google Preview

Jan-Peter Loof and Hendrik Ploeger, The Right to Property: The Influence of Article 1 Protocol no. 1 ECHR on Several Fields of Domestic Law (2000) Find This Resource

•

•Worldcat

•Google Preview

Anna Veneziano, Le garanzie mobiliari non possessorie: profili di diritto

comparato e di diritto del commercio internazionale (2000) Find This Resource

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•

•Worldcat

•Google Preview

L. P. W. van Vliet, Transfer of Movables in German, French, English and Dutch Law (2000)

Find This Resource

•Worldcat

•Google Preview

Christian von Bar and Ulrich Drobnig, The Interaction of Contract Law and Tort and Property Law in Europe: A Comparative Study (2004)

Find This Resource

•

•Worldcat

•Google Preview

Eva-Maria Kieninger, Security Rights in Movable Property in European Private

Law (2004)

Find This Resource

•

•Worldcat

•Google Preview

Reinhard Zimmermann, Daniel Visser, and Kenneth Reid (eds), Mixed Legal

Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004)

Find This Resource

•

•Worldcat

•Google Preview

Michele Graziadei, Ugo Mattei, and Lionel Smith (eds), Commercial Trusts in

European Private Law (2005)

Find This Resource

•

•Worldcat

•Google Preview

James Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (2006)

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Notes:

(1)Courses on comparative private law frequently focus on the law of obligations, because here, in spite of conceptual differences, convergence rather than divergance dominates the scene. This convergence-oriented comparative approach fits well into the growing tendency on a European as well a global level to harmonize or even unify large areas of the law of obligations, and particularly of contract law, to facilitate international trade. Within the framework of the European Union the first directives in the area

of private law dealt with tort and contract law, rather than with property law. Even the European timeshare Directive—and timeshare is most certainly

a property concept—only deals with precontractual information duties. Cf Directive 94/47/EC of the European Parliament and the Council of 26

October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, [1994] OJ L 280/94, p 83.

(2)Grant Gilmore, The Death of Contract (1974).

(3)Pierre Joseph Proudhon, Quʼest-ce que la propriété? Ou recherches sur le principe du droit et du gouvernement (1848–9). Cf also the opposite view by Frédéric Bastiat, ‘Propriété et Loi’, [1848] Journal des Economistes (15 May): ‘lʼhomme naît propriétaire’(a person is born being owner).

(4)For an analysis of modern Russian law see Evgueny A. Sukhanov, ‘The Right of Ownership in the Contemporary Civil Law of Russia’, (1999) 44 McGill LJ 301 ff.

(5)See, for Australia, the well-known case of Mabo and others v Queensland (No 2) [1992] HCA 23; and for South Africa, see Richtersveld Community and others v Alexxor Ltd and another, 2001(3) SA 1293 (LCC).

(6)Frederick H. Lawson and Athanassios Yiannopoulos (chief eds),

International Encyclopedia of Comparative Law (vol VI, 1973 ff). For a recent comparative study, see Ugo Mattei, Basic Principles of Property Law: A

Comparative Legal and Economic Introduction (2000).

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(7)G. E. van Maanen and A. J. van der Walt (eds), Property Law on the Threshold of the 21st Century (1996).

(8)Elizabeth Cooke (ed), Modern Studies in Property Law (2001); eadem, Modern Studies in Property Law (vol II, 2003; vol III, 2005).

(9)Reinhard Zimmermann, Daniel Visser, and Kenneth Reid (eds), Mixed

Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004).

(10)cf Anna Veneziano, Le garanzie mobiliari non possessorie: profili di diritto comparato e di diritto del commercio internazionale (2000).

(11)cf case C–222/97 Trummer v Mayer [1999] ECR I–1661.

(12)Eva-Maria Kieninger, Security Rights in Movable Property in European Private Law (2004); Michele Graziadei, Ugo Mattei, and Lionel Smith,

Commercial Trusts in European Private Law (2005). On trust law, see also

Richard H. Helmholz and Reinhard Zimmermann, Itinera fiduciae: Trust and

Treuhand in Historical Perspective. Comparative Studies in Continental and Anglo-American Legal History (1998); D. J. Hayton, S. C. J. J. Kortmann, and H. L. E. Verhagen (eds), Principles of European Trust Law (1999).

(13)Christian von Bar and Ulrich Drobnig, The Interaction of Contract Law and Tort and Property Law in Europe: A Comparative Study (2004).

(14)See also Peter von Wilmowsky, Europäisches Kreditsicherungsrecht: Sachenrecht und Insolvenzrecht unter dem EG-Vertrag (1996); Eva-Maria

Kieninger, Mobiliarsicherheiten im Europäischen Binnenmarkt: Zum Einfluß

der Warenverkehrsfreiheit auf das nationale und internationale Sachenrecht der Mitgliedstaaten (1996); Jacobien W. Rutgers, International Reservation of

Title Clauses: A Study of Dutch, French and German Private International Law in the Light of European Law (1999). For an earlier study, see Jean Georges Sauveplanne (ed), Security over Corporeal Movables (1974).

(15) More information can be found on the website of the Study Group: <http://www.sgecc.net/>. See also Christian von Bar (ed.), Sachenrecht in

Europa: Systematische Einführungen und Gesetzestexte (vols I–IV, 1999– 2001). With regard to European trust law, see also: Hayton et al. (n 12).

(16) Arthur Hartkamp, Martijn Hesselink, Ewoud Hondius, Carla Joustra, Edgar du Perron, and Muriel Veldman (eds), Towards a European Civil Code (3rd edn, 2004).

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