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961 results in Property Law

Page 28 of 49

Legal Certainty in Real Estate Transactions
  • A Comparison of England and France
  • Volume 147
  • Edited by Bertrand du Marais, David Marrani
  • Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016
  • This comparative research was triggered by the assessment of property registration law published in the World Bank Doing Business reports (DB). The international and interdisciplinary team aimed to assess how legal certainty was imagined and put in practice in French and English law, using commercial real estate as a case study. Not only this study identifies the economic impact of the law in both jurisdictions, it also looked at the practitioners' functions in the dealing with commercial real estate transactions. In other words, it analyses the topical position of practitioners such as the French notaires and the role of solicitors in England. Nowadays, the profession of notaires is confronted to numerous challenges. For instance, nationality requirement for its access, has been ruled by the ECJ as contrary to the freedom of establishment and art. 49 TFEU and not justified by the exercise of public authority". In this study, the authors argue that the actual nature and the quality of the work done by the practitioners should be considered as well as financial cost and delays. They also argue that a liberalisation of professions such as civil law notaires would have very little impact on the cost associated with doing business. As a matter of fact both the English and the French mechanisms are very similar in their objectives and outcome even though they handle the same transaction differently, because of the culturally different relevant angles.

Property Law Perspectives IV
  • Volume 145
  • Edited by Gruyaert Dorothy, Ramaekers Eveline, Rostill Luke
  • Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    05 January 2016
  • Property Law Perspectives IV contains a selection of the papers presented at the fifth meeting of the Young Property Lawyers Forum (YPLF), which took place at Wadham College, Oxford, in 2014. The YPLF is an informal, international network of property law researchers, which is primarily aimed at junior scholars. The papers presented at the YPLF are representative of the rapid developments currently taking place in property law scholarship, particularly in connection with EU law, environmental law, and internet law. Property Law Perspectives IV shows that attention is still being paid to the roots of property law. The papers in this volume take us on legal and historical journeys, exploring basic principles and well-known concepts of property law, such as the prior tempore rule, expropriation, proprietary security, and the rules on acquisitive and extinctive prescription. The wide variety of topics and jurisdictions discussed make this book a fascinating read for anyone interested in property law.

Pierson v. Post, The Hunt for the Fox
  • Law and Professionalization in American Legal Culture
  • Angela Fernandez
  • Published online:
    10 September 2018
    Print publication:
    27 September 2018
  • The 1805 New York foxhunting case Pierson v. Post has long been used in American property law classrooms to introduce law students to the concept of first possession by asking how one establishes possession of a wild animal. In this book, Angela Fernandez retells the history of the famous fox case, from its origins as a squabble between two wealthy young men on the South Fork of Long Island through its appeal to the New York Supreme Court and entry into legal treatises, law school casebooks, and law journal articles, where it still occupies a central place. Fernandez argues that the dissent is best understood as an example of legal solemn foolery. Yet it has been treated by legal professionals, the lawyers of its day, and subsequent legal academics in such a serious way, demonstrating how the solemn and the silly can occupy two sides of the same coin in American legal history.

  • 9 - Two Ways of Theorizing ‘Collective Ownership of the Earth’

  • Edited by James Penner, National University of Singapore, Michael Otsuka, London School of Economics and Political Science
  • Book:
    Property Theory
    Published online:
    10 August 2018
    Print publication:
    30 August 2018, pp 187-214

  • Summary

    Inspired by Hugo Grotius, Mathias Risse has recently argued forcefully that any property or territorial arrangement that fails to provide the global population with an equal opportunity to satisfy basic needs is unjust: it violates natural rights of common ownership. This chapter argues that Grotius and Risse theorize Collective Ownership of the Earth in rival ways. Risse develops a theory of justice: COE generates moral rights that restrain the acceptability of exclusionary regimes. Grotius, by contrast, advances a theory of property: what shape should we give to conventionally instituted individual property rights, given that the earth originally belongs to everyone? This chapter focuses on the right of necessity to illustrate the differences between these approaches. Grotius conceptualizes retained rights of common ownership, including rights of necessity, as partly definitive of individual property and territorial rights. These retained rights therefore bind each and every property-holder. Risse declares any pattern of holdings that fails to realize natural rights of common ownership ‘unjust’, while insisting that the duty to bring about just distributions is incumbent upon states alone. I conclude that Grotius’s model resolves theoretically more parsimoniously the question of who are bound by the obligations corresponding to rights of common ownership.

  • 7 - Rights, Distributed and Undistributed: On the Distributive Justice Implications of Lockean Property Rights, Especially in Land

  • Edited by James Penner, National University of Singapore, Michael Otsuka, London School of Economics and Political Science
  • Book:
    Property Theory
    Published online:
    10 August 2018
    Print publication:
    30 August 2018, pp 138-160

  • Summary

    This chapter concerns Locke’s understanding of the morality of exchange and the division of labour. I first consider whether the power to appropriate property is a right which we have as a natural right, a right which is not ‘distributed’ to individuals under social contractarian reasoning. Drawing upon the views of Otsuka and Gardner, I conclude that it is such a natural right. I then dispute the claims of Otsuka and Sreenivasan that a Lockean ‘enough and as good condition’ on appropriation, if taken seriously, leads to the conclusion that each individual has a claim right to an equal share of the earth’s resources. Once we focus on (1) the stringency of Locke’s spoilation proviso, and (2) Locke’s views on the value of labour, one can develop a theory of just contractual exchange which it seems fair to attribute to Locke, which shows that the distribution of titles to land, even in conditions of scarcity, is irrelevant to the question of economic or distributive justice in holdings. The real action lies in a just division of the fruits of a division of labour, which does not allow first acquirers of titles in land to exploit the landless.

  • 1 - The Public Nature of Private Property

  • Edited by James Penner, National University of Singapore, Michael Otsuka, London School of Economics and Political Science
  • Book:
    Property Theory
    Published online:
    10 August 2018
    Print publication:
    30 August 2018, pp 1-22

  • Summary

    The idea that private law is a distinct normative category is not self-evidently true, but neither is it self-evidently false. Critics of private law’s distinctiveness often disregard the important focus that the distinctiveness claims brings to questions of ‘legal architecture’ – legal doctrine and the relationships between legal doctrines. The label “private law” points us to useful structural features of law which many have claimed call for an “internal” perspective and cannot be fully understood (or even understood at all) if only looked at in relation to the external “public” ends they might be thought to achieve. This paper examines one prominent version of the distinctiveness claim – the corrective justice position as expounded by Ernest Weinrib – in relation to private property. According to Weinrib’s view, corrective justice primarily characterizes private law, but it also includes a public dimension, calls the “omnilateral” perspective, which ensures that the interpretation and enforcement of private rights are public. My argument is that Weinrib’s account of the priority of the structure of corrective justice over the omnilaterality of public institutions gets things backwards in relation to private property. The basic structure of property is not correlativity, but omnilaterality. Property is public through and through.

  • 3 - What Is the Right to Exclude and Why Does It Matter?

  • Edited by James Penner, National University of Singapore, Michael Otsuka, London School of Economics and Political Science
  • Book:
    Property Theory
    Published online:
    10 August 2018
    Print publication:
    30 August 2018, pp 38-68

  • Summary

    The “right to exclude” is commonly said to be a central element of the formal structure of property, and some relatively sweeping claims have been made about its role and effect. This chapter seeks to provide a clearer understanding of the right to exclude and its relationship to property. First, it sets out a precise account of what the term means. A right to exclude is any right to forbid a use or set of uses of a particular resource by one or more people; more formally, it is any negative claim-right concerning the use of a discrete “thing.” Second, the chapter sketches and briefly evaluates certain normative assertions about the right to exclude. It concludes, inter alia, that stronger versions of these arguments, both supportive and critical, conflate rights to exclude with rights of broad scope. Finally, the chapter critically evaluates various arguments for the primacy of the right to exclude. The essence of property, it concludes, is an authority structure, in which control or dominion over a particular subject is the animating idea, and rights to exclude have been unhelpfully cleaved from this parent concept, leading to considerable misunderstanding about what property is and how property works.

  • 2 - Legal Forms in Property Law Theory

  • Edited by James Penner, National University of Singapore, Michael Otsuka, London School of Economics and Political Science
  • Book:
    Property Theory
    Published online:
    10 August 2018
    Print publication:
    30 August 2018, pp 23-37

  • Summary

    In this paper, I argue that legal forms constitute the available ways of thinking legally about relations between persons in light of how we conceive of persons in law. Legal forms, as normative ideals, do not of course determine what positive law there is nor do they even set out the particularities of the law we ought to have: for that, we have politics. With this view of legal forms in mind, I suggest a way to bridge the divide between those who think there is a distinctively legal way of reasoning about human relations (‘formalists’) and those who take themselves to reject the very possibility of distinctively legal reasoning (‘moralists’). I suggest that there is a common threshold question for moralists and formalists alike: how ought we to conceive of persons for the purposes of law and how could people so-conceived possibly relate? Both the moralist and the formalist produce legal forms in answering that question, forms that constrain the available ways of reasoning about legal relations. But we are not all formalists now: there remains substantial disagreement about how to answer the threshold question and how far we get by just answering that threshold question.

  • 6 - Appropriating Lockean Appropriation on Behalf of Equality

  • Edited by James Penner, National University of Singapore, Michael Otsuka, London School of Economics and Political Science
  • Book:
    Property Theory
    Published online:
    10 August 2018
    Print publication:
    30 August 2018, pp 121-137

  • Summary

    I argue that the Lockean 'enough and as good' proviso provides support for egalitarian as opposed to libertarian or sufficientarian claims over worldly resources. These egalitarian claims apply to contemporary advanced industrial societies with money-based economies as well as primitive agrarian barter economies. But the full 'luck egalitarian' complement of equality of opportunity for welfare cannot be derived from a Lockean approach that focuses on our egalitarian claims to unowned bits of the world. For that, we need to reach beyond Locke, and appeal to complaints of unfairness that have nothing in particular to do with our claims to worldly resources.

Page 28 of 49