Property law perspectives

著者

書誌事項

Property law perspectives

editors, Bram Akkermans, Eveline Ramaekers

（Ius commune, 106, 122, 132, 145）

Intersentia, c2012-

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注記

Editors of Vol. 2: Bram Akkermans, Ernst Marais, Eveline Ramaekers

Editors of Vol. 3: Ann Apers, Sofie Bouly, Elien Dewitte, Dorothy Gruyaert

Editors of Vol. 4: Dorothy Gruyaert, Eveline Ramaekers, Luke Rostill

"METRO"--Cover

"NUR 822"--T.p. verso

内容説明・目次

巻冊次

[1] ISBN 9781780680934

内容説明

This book is the result of the second edition of the Young Property Lawyers Forum (YPLF), an informal network of young property law researchers. The YPLF aims to bring property law scholars together from around the world and enable them to discuss their work with each other and with more experienced researchers. This book contains the contributions of the second edition of this conference which took place in Maastricht. The different chapters in the book deal with new developments in property law that challenge traditional property law theory. Although they deal with various aspects of property law, such as virtual property, prescription, and EU property law, they all share a vision on how to give shape to the property law of the 21st century. The Young Property Lawyers Forum (YPLF) continues to form a network for property law researchers around the world with new conferences and publications for both beginning and more advanced scholars.
巻冊次

2 ISBN 9781780682020

内容説明

This book contains selected contributions from the third Young Property Lawyers Forum (YPLF) and the YPLF Masterclass 2012. It offers new perspectives on property theory, constitutional property law, and private law-property law. Under these headings, young and renowned property law scholars present their current research and offer an exciting look into the challenges property law faces in the 21st century. In November 2012 the YPLF met in Stellenbosch, South Africa for the Forum's third edition. It is an informal network of young property law researchers that seeks to bring together property law researchers from around the world and to enable them to discuss their work with each other and with more experienced researchers. On this occasion a special Master Class was held after the YPLF in which some of the world's leading property law scholars presented their research. The YPLF continues to form a network for property law researchers around the word, leading to more conferences and publications.

目次

Introduction to Property Law Perspectives II 1. Introduction 2. Property Law in Development 3. Contributions in this Volume Bibliography List of Contributors PARTI: CONSTITUTIONAL PROPERTY LAW Eveline Ramaekers Lex situs and Article 1 Protocol 1. The influence of the European Convention on Human Rights on Private International Law 1. Scenario: a Property Right is Lost or Altered 2. The Different Elements of A1P1 3. Pye v United Kingdom 3.1. Lex Situs Evaluated along the Lines of Pye 4. Mary Green v Malta 4.1. Public Policy Justification 4.2. Rights of a Third Party 5. Concluding Remarks Bibliography Sabrina Praduroux How to Fairly Judge Restrictions to Property Rights: an Overview on ECtHR's view on Public and Private Interests in the regulation of Property 1. Introduction 2. Proportionality as Key Feature of Judicial Review under ECHR Law 3. Proportionality as Standard of Judicial Review under Article P1-1 ECHR 4. The Conduct of Public Authorities as decisive Factor to decide on Interferences with the Right to the Peaceful Enjoyment of Possessions 5. Fairly Balanced Takings in the Light of the ECtHR Case Law 5.1. The Availability and Amount of Compensation 5.2. The Existence of Adequate Procedural Protection for the Right of Property 6. Due Process as Factor tipping the Scale within Regulation of Property Cases 7. Conclusions Bibliography Bjorn Hoops South Africa's Communal Land Rights Act: Rating the Attempt to Translate Customary Land Tenure into Legislation 1. Introduction 2. Background 2.1. Customary Land Tenure 2.2. Juristic Persons as a Means to Provide for Security of Tenure 2.3. Customary Land Tenure and the Legitimacy of Juristic Persons 3. Methodology 4. Comparison 4.1. Rights of Access and Rights of Control 4.2. Multi-Level Governance 4.3. Exclusion of Outsiders 4.4. Flexible, Inclusive, Nested and Overlapping Rights of Access 4.5. Role of Traditional Leaders 5. Concluding Remarks Bibliography Susan Bright & Lisa Whitehouse The Opportunities and Challenges of Empirical Work: Housing Possession in Theory and in Practice 1. Why Empirical Work? 2. How: the Research Methods 3. Practical Research Challenges 4. Existential Research Challenges 5. Concluding Remarks Bibliography Jeannie van Wyk What to Do about Fracking in the Karoo? 1. Introduction 2. What is 'Fracking'? 3. Where will Fracking Take Place? 4. Advantages and Disadvantages of Fracking 5. Regulatory Framework 5.1. General Regulatory Framework 5.2. Authorizations /Permits/Approvals Required 5.3. Mineral and Petroleum Resources Development Act 28 of 2002 5.4. National Environmental Management Act 107 of 1998 5.5. National Water Act 36 of 1998 5.6. National Environmental Management: Waste Act 59 of 2008 5.7. Spatial Planning Legislation 6. Owners 7. Conclusion Bibliography PART II: CONCEPTS OF PROPERTY LAW Sofie Bouly Does the Expansion of the Concept 'Immovable' Influence Immovable Accession? 1. Introduction: Immobilization and Immovable Accession Require a 'Connection' between Two or More Things 2. Immovable Accession 3. Incorporation: a Criterion with two Dimensions 3.1. Immobilization 3.2. Transfer of Ownership 4. Incorporation: a Uniform or Multiform Criterion? 4.1. Multiform Interpretation of the Incorporation Criterion 4.2. Uniform Interpretation of the Incorporation Criterion 5. Concluding Remarks with Regard to Both Dimensions of the Incorporation Criterion Bibliography Shaun Charlton Putting Universal Classifications of Property into Question: Standing Timber 1. Introduction 1.1. An Example Taken from Germany 2. France 2.1. Meubles par Anticipation 2.2. Symbolic Possession of the Trees 2.3. Lease of the land (Bail) 2.4. Registration 2.5. Local Conclusion on French Law 3. Germany 3.1. Legal Bases Dependent upon the Classification of the Property Law Classification of Standing Trees 3.1.1. Legal Bases Dependent upon the Classification of the Trees as Immovable 3.1.2. Legal Bases Dependent upon the Classification of the Trees as Movable 3.1.3. German Property Law Classification of the Standing Trees 3.2. Legal Bases Independent of the Property Law Classification of Standing Trees 3.2.1. Legal Consequences Resulting from the Interpretation of the Estate Contract 3.2.2. Interpreting the Estate Contract 3.3. Local Conclusion on German Law 4. Great Britain 4.1. Profit a Prendre 4.1.1. The Sales Contract as the Grant of a Profit 4.1.2. Whether the Profit Will Bind Third Parties 4.1.3. By Way of Deed (Legal Profits) 4.1.4. By Way of a Signed Written Contract (Equitable Profits) 4.1.5. Informal Agreements (Purporting to grant a Profit) 4.2. Back to the Sales Contract 4.3. Local Conclusion for English and Scots Law 5. Conclusion Bibliography Dorothy Gruyaert Client Accounts: in Search of a Legal Foundation 1. Introduction 2. Legal Position Before 27 January 2011 2.1. Concept 2.2. Classification of the Legal Relationship 2.2.1. Introductory Note: The Principle of Exclusive Ownership 2.2.2. Indirect Representation 2.2.3. Fiduciary Ownership for Management Purposes 2.2.4. Concluding Remarks 3. Recent Developments in Case Law 4. Lessons to Be Learnt 4.1. Legislative Intervention 4.2. First Proposal 4.3. Second Proposal 4.3.1. Quo Vadis? 5. Conclusion Bibliography Ann Apers Party Autonomy in the Classification of Things: Expansion of the Term 'Immovable' 1. Introduction: the Classification Concept 2. Classification of Things 2.1. Objective Classification Criteria 2.2. Subjective Classification Criteria 2.3. Relation between Objective and Subjective Classification Criteria 3. Expansion of the Term 'Immovable by Nature' in Belgian and Dutch Law 3.1. Background of the Category 3.2. Interpretation of the Term 'Immovable' 3.2.1. Legal Provisions: Classification based on the Nature of the Property 3.2.2. Case Law Analysis: Shift towards Subjective Interpretation 3.3. Criticism on the Subjective Interpretation of the Term 'Immovable through Attachment' 4. Concluding Remarks Bibliography Brendan Edgeworth The Contractualization of Leases in Common Law Jurisdictions: Recent Developments 1. Introduction 2. In the Beginning: Highway Properties, Shevill and their Lineage 3. The Rise of the Anti-Shevill Clause 4. Some Other Common Law Jurisdictions 5. Contractual Termination and Notice Requirements 6. Conclusion Bibliography PART III: DEVELOPMENTS IN PROPERTY LAW AND PROPERTY THEORY Bram Akkermans Standardization of Property Rights in European Property Law 1. Introduction 2. Introducing the Issues: Perspectives on Numerus Clausus 3. Standardization Theory 4. Standardization Theory in a European Setting 4.1. Before we start - Systems of Publicity and Numerus Clausus in all Countries? 4.2. Back to Problem - Numerus Clausus in Comparative or Economic Perspective? 4.3. Back to Comparative Law: Composition of the Numerus Clausus 5. Optimization of Publicity and Property Rights 6. Conclusion Bibliography Joseph William Singer The Rule of Reason in Property Law 1. Rules and Standards 1.1. Conventional Analysis 1.2. Legal Realism about Rules and Standards in Property Law 1.2.1. Why Rules are Less Predictable than We Think 1.2.1.1. Informal Sources of Justified Expectations 1.2.1.2. Rules Do Not Determine their Own Scope 1.2.1.3. Competing Norms Limit the Scope of Legal Rules 1.2.2. Why Standards are More Predictable than We Think 1.2.2.1. Exemplars and Precedent Make Standards Concrete 1.2.2.2. Presumptions Make Standards Predictable 2. How Rules of Reason Maintain the Infrastructure of Property 2.1. Setting Minimum Standards Compatible with Democratic Norms 2.2. Consumer Protection: Things that We Would Like to Take for Granted 2.3. Managing Externalities and Systemic Effects of Property Rights 3. How Rules of Reason Shape the Scope of Property Law Rules 3.1. Distinguishing Cases 3.2. Resolving Conflicting Norms 3.3. Excusing Mistakes 3.4. Escaping the 'Dead Hand' of the Past 3.5. Deterring the 'Bad Man' 4. Conclusion Bibliography PART IV: PRIVATE LAW AND PROPERTY LAW Mitzi Wiese A Comparison between a Lien (right of retention) in South African Law and het retentierecht in Dutch Law before and after the Enactment of the Current Burgerlijk Wetboek 1. Introduction 2. South African Law 2.1. Three Types of Liens 2.2. The Legal Nature of Liens 3. Dutch Law 3.1. Development of Liens (retentierechten) 3.2. Before Enactment of the Current BW 3.3. After the Enactment of the Current BW 4. Evaluation Bibliography Valerie Tweehuysen A Comparative Analysis of the Principle of Indivisibility 1. Introduction 2. Dutch Law 2.1. Rules Derived from the Principle of Indivisibility 2.2. Exceptions to the Principle of Indivisibility 2.3. The Essence of the Principle of Indivisibility 3. French Law 4. German Law 5. Conclusion Bibliography Elien Dewitte Factual Universalities of Goods - Still Alive and Kicking? 1. Introduction 2. Factual Universality of Goods Versus Legal Universality of Goods 3. Application of Factual Universalities of Goods in Case Law 3.1. A Business Enterprise 3.1.1. Business Enterprise: Definition and Legal Nature 3.1.2. Usufruct of a Business Enterprise 3.1.3. Pledge of a Business Enterprise 3.1.4. Conveyance of a Business Enterprise 3.1.5. Conclusion 3.2. A Securities Portfolio 3.2.1. Securities Portfolio: Definition 3.2.2. Usufruct of a Securities Portfolio 3.2.3. An Insurance Portfolio 3.3. An Assembly of Future Receivables 4. Factual Universality of Goods: Functional Effects 5. Conclusion Bibliography Gerrit Pienaar The Reality of Fragmented Property Rights 1. Introduction 2. The Economic and Social Reality of Fragmented Ownership 3. The Nature of the Rights to Land 3.1. Sectional Title Ownership 3.2. Communal Land Tenure in Rural Areas 4. Registrability and Protection 4.1. Sectional Title Ownership 4.2. Communal Land Rights 5. Administrative System and Dispute Resolution 5.1. Sectional Title Community 5.2. Communal Property in Rural Areas 6. Conclusion Bibliography
巻冊次

3 ISBN 9781780682785

内容説明

The Young Property Lawyers Forum (YPLF) is an informal international network with an annual conference that gives young property law researchers the opportunity to present their research to both young and established property law scholars from around the world. Property Law Perspectives III contains selected contributions from the fourth edition of the Young Property Lawyers Forum and Masterclass. The book offers an interesting selection of recent developments in the broad field of property law, including contributions on constitutional property law (with topics such as expropriation procedures, South African tenure, and expropriation of waterfalls for hydropower development), national private property law (with for example chapters on the English Land Registration Act 2002 and on virtual property), and European and comparative property law (with contributions about French fiducie versus trust, the global art market, and factory machinery bought under hire-purchase agreements).The wide variety of topics discussed by a young and promising generation of property lawyers make this book a fascinating read for anyone interested in developments in property law.

目次

CONTENTS Preface PART I. CONSTITUTIONAL PROPERTY LAW The Voluntary Guidelines on the Responsible Governance of Tenure: Distilling Good Governance Standards for Expropriation Procedures (Bjorn Hoops) 1. Voluntary Guidelines on the Responsible Governance of Tenure 2. The Guidelines on Expropriation Procedures, Transparency and Participation 2.1. Participation and Transparency 2.2. The Menschenbild of the Guidelines 2.3. The Provision of Information to the Public 2.4. The Access to the Procedure 2.5. The Form of Participation 2.6. Obligation to Balance Interests and to Give Reasons 3. The Road Ahead 4. Concluding Remarks Bibliography A Comparison between the Extension of Security and Tenure Act, 1997 and the Land Tenure Security Bill (Marilie van Wyk) 1. Introduction 2. Background 2.1. The Land Redistribution Programme 2.2. The Land Restitution Programme 2.3. The Land Tenure Reform Programme 3. Draft Land Tenure Security Bill 3.1. Purpose and Objectives of the Land Tenure Security Bill 3.2. A Brief Analysis of the Extension of Security and Tenure Act 62 of 1997, the Land Reform (Labour Tenants) Act 3 of 1996 and the proposed Land Tenure Security Bill of 2010 4. State Duty 4.1. Constitutional Validity 4.2. Mirror Mirror - 5. Conclusion Bibliography New Imperialism (1870 - 1914) on the African Continent: How Natives' Landownership was Brought under the Yoke of European Sovereignty (Mieke van der Linden) 1. Introduction 2. New Imperialism 3. Property Rights in the 19th Century 4. Theoretical Premises 5. European and African Perspectives on Property Rights to Land 5.1. Land Law according to the European Conceptualisation 5.2. African Land Law 6. African Natives' Landownership within the Age of New Imperialism 7. Concluding Remarks Bibliography Norwegian Waterfalls: A Case Study of Commercial Expropriation in Light of Property as a Human Right (Sjur K. Dyrkolbotn) 1. Introduction 2. The Fair Balance that cannot be Achieved through Market Value Compensation 3. Market Value, but Whose Market? The New Approach to Compensating Waterfalls 4. Owners, but not Stakeholders: No Revision of Administrative Practices regarding Hydropower Development 5. Conclusion Bibliography PART II. CURRENT DEVELOPMENTS IN PROPERTY LAW AT THE NATIONAL LEVEL Determining the Property of Virtual Property (Wian Erlank) 1. Introduction 2. The Methodology for the Propertisation of Virtual Objects 3. Is it Virtual Property? Concerning the Characteristics of Virtual Property 4. Conclusion Bibliography The Development of the Distinction between Real and Personal Rights in South African Case Law: A Critical Perspective (Marda Horn) 1. Introduction 2. The Development of the Distinction between Real and Personal Rights in South African Law 2.1. Common (Roman Dutch) Law Position 2.2. Further Development of the Subtraction Test in Case Law regarding the Payment of a Sum of Money 2.3. Most Recent Development of the Subtraction Test in Case Law 3. Evaluation of the Twofold Subtraction Test 4. Possible Future Development of the Test 4.1. Follow the Road of the Ius Commune? 4.2. Follow the Intention of the Parties? 3. Conclusion Bibliography State Guaranteed Title: The Land Registration Act 2002 (Emma Lees) 1. What is Guaranteed by Section 58? 2. When is Registration Mistaken? 3. What Happens Where There Is More Than One Registered Title? 4. When Should the Register be Rectified? 5. How Should the Registration System Respond to Fraud? 6. Drawing the Threads Together 7. Law Commission Approach 8. Conclusion Bibliography Abbreviations The Reform of Security Law in Belgium (Eric Dirix) 1. Introduction 2. Present Situation 3. Reform 4. Importance of Comparative Law 5. Objectives of the Reform 6. Main Features of the Act 7. Registration 8. Conclusion Clarity regarding the Acquisition of a Right of Way of Necessity: A South African Perspective (Tshilidzi Norman Raphulu) 1. Introduction 2. Acquisition of a Way of Necessity 2.1. Operation of Law 2.2. Court Order 2.3. Agreement 2.4. Registration 2.5. Duty to Negotiate 3. Conclusion Bibliography PART III. PROPERTY LAW IN A EUROPEAN AND INTERNATIONAL PERSPECTIVE A Comparative Analysis of the Effect of the Lien against Third Parties (Merel Heilbron) 1. Introduction 2. The Definition of Right In Rem in the European Insolvency Regulation 3. Lien: the Concept 4. Requirements for the Lien 5. Dutch Law 5.1. Introduction 5.2. Effect of the Lien against Other (Secured) Creditors 5.3. Effect of the Lien against the Real Owner 5.4. Interim Conclusion 6. Belgian Law 6.1. Introduction 6.2. Effect of the Lien against Third Parties: Other Secured Creditors 6.3. Effect of the Lien against the Real Owner 6.4. Interim Conclusion 7. Future Belgian Securities Law 8. Comparison between Current Dutch and Belgian Law 9. Concluding Remarks Bibliography Abbreviations The Protection of the Trust Fund: A Comparative Study in French and English Law (Rafael Ibarra Garza) 1. Introduction 2. Preventive Measures of Protection 2.1. Protecting the Trust Fund from the Trustee 2.1.1. Duty of Loyalty 2.1.2. Duty of Care 2.2. Protecting the Trust Fund from Strangers 2.2.1. Ownership of the Trust Property as a Means of Protection 2.2.2. Ring Fencing the Trust Property as a Means of Protection 3. Corrective Measures which Protect the Trust Fund 3.1. Protecting the Trust Fund by Personal Remedies 3.1.1. Remedies for the Enforcement of the Trust 3.1.2. Remedies Restoring the Loss Caused to the Trust Fund 3.2. Protecting the Trust Fund by 'Real' Remedies 3.2.1. True Real Remedies in English Trust Law 3.2.2. False Real Remedies in French Law 4. Conclusion Bibliography Abbreviations New Challenges for the Global Art Market: The Enforcement of Cultural Property Law in International Trade (Francesca Fiorentini) 1. Conflicting Values in the Global Art Market 2. The Legal Structure of the Global Art Market 2.1. Hard-Law Rules: International Law 2.2. Hard-Law Rules: International Trade Agreements 2.3. The Lack of Coordination between the Hard-Law Supranational Regimes 2.4. Soft -Law Rules: A Double Role to Play in the Global Art Market 3. The Judicial Enforcement of Cultural Property Law: Potential and Limits 3.1. Enforcing Cultural Property Law through Human Rights Law and Fora 3.2. Enforcing Cultural Property Law through International Investment Law and Arbitration 4. Concluding Remarks Bibliography How Far Factory Machinery Follows the Land in England, France and Germany (Shaun Charlton) 1. The National Classifications of Property into Land and Not Land 1.1. Germany 1.2. France 1.3. England 2. The Legal Relationship 2.1. Of the Manufacturer to the Movable 2.1.1. An Ordinary Sale 2.1.2. Leases of Movable Property 2.1.3. Sales with a Security Element 2.2. Of the Manufacturer to the Land 3. The Physical Relationship 3.1. Machinery Resting on the Factory Floor by Sole Force of Gravity 3.2. Machinery Specially Adapted to the Factory Building 4. Conclusion Bibliography
巻冊次

4 ISBN 9781780683706

内容説明

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.

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