Most national law expositions leave a distinct impression of a naturalistic approach to the categorisation of property. The view advocated in this study is that the accession or severance of things to and from land as a 'natural scientific enquiry' based exclusively on blends of physical attachment to or socially-expressed intention in respect of land is misleading, or, at least, not decisive. National law accounts of the rules governing the distinction of land and goods need recalibrating to take account of the purpose, or the legal reasons, why land is being distinguished from goods. This is well illustrated by the example of standing timber, variously described doctrinally and in the national case-law as integral parts of land or (presently-existing or future) goods. Purpose of classification reveals the many nuances of competing policy considerations and, in turn, better reflects the law as it stands. The same principles may be applied to the case-law of the CJEU.
Foundations of Property Law: Things as Objects of Property Rights is an abridged translation of the first volume of Christian von Bar's Gemeineuropäisches Sachenrecht -a milestone in European private law theory, and in comparative property law more broadly. Radical in content and scope, the English version examines the dynamics of interaction between the objects, contents, and holders of property. The conceptual framework of 'property law' is presented as a domain of erga omnes monopoly rights that govern the relationship between persons and objects of value. Within that framework, a reciprocal relationship is illustrated between "property rights" and their objects; property rights play a role in constituting the very objects ("things") in which they are held. With comprehensive comparative analysis, insights are gleaned from all the jurisdictions of the European Union and the United Kingdom, presenting a critical evaluation of property law systems in both Common and Civil Law traditions. This book joins all the national legal systems in a single inquiry, treating their traditions and arguments with the respect they deserve and taking advantage of the knowledge embodied in the diversity of European private law. A scholastic work, offering deep and unique insights into the European property law systems, Foundations of Property Law will quickly become a go-to resource for anyone interested in European private law and comparative property law.
The vast majority of national law expositions of the rules for determining when something is a part of land, and therefore partakes in its legal nature, or leads a separate existence in the other category of corporeal property, goods, leaves a distinct impression of a naturalistic approach to the categorisation of property. The view advocated in this study is that the accession or severance of things to and from land as a 'natural scientific enquiry' based exclusively on blends of physical attachment to or socially-expressed intention in respect of land is misleading, or, at least, not decisive. National law accounts of the rules governing the distinction of land and goods need recalibrating to take account of the purpose, or the legal reason, why land is being distinguished from goods in a particular situation. This is well illustrated by the straightforward example of standing timber, variously described doctrinally and in the case-law as integral parts of land, (presently-existing or future) goods, or even the object of 'flying freeholds'. Purpose of classification reveals the many nuances of competing policy considerations and, in turn, better reflects the law as it stands.
This comparative analysis considers the differing approaches to important areas of law in England, France and Germany. In particular, constitutions, sources of law, rights against the state to prevent abuse of power, and rights of private individuals and organisations against each other in tort and contract are examined and compared, and the system of courts is also considered. Updated and revised, each sub-topic is introduced with the relevant material in the English system, allowing easy comparison and assimilation of the other systems. The text includes translations of relevant French and German codal material, and references to relevant cases from all of the jurisdictions. This new edition includes constitutional changes in France and the United Kingdom, in particular the new procedure for challenging existing legislation before the Conseil constitutionnel. It examines the consequences of the Lisbon Treaty, as well as other recent codal and legislative changes. Comprehensive and topical, the text explores a wide variety of new case law on issues such as: preventive detention; the use of evidence obtained by torture; the balance between suppression of terrorism and personal freedom; the internet; email monitoring; artificial reproductive techniques; use of global positioning systems (GPSs), deoxyribonucleic acid (DNA) and closed-circuit television (CCTV); the wearing of religious clothing (such as the headscarf) and symbols (such as the cross); circumcision; methods of crowd control; the prevention of human trafficking; the preservation of privacy, especially for celebrities; and the legality of pre-nuptial agreements and success fees for lawyers. Designed for students on comparative law courses, this textbook will also prove valuable to students who are familiar with English law, but require a readily comprehensible introduction to French or German law.
This book explores a range of comparative issues in, and in the relationship between, property law and contract law in English and Spanish law. It also draws on other jurisdictions. The purpose is to give readers access to discussions of these areas of private law that are not easily accessible elsewhere. It goes further, however, than simply setting out similarities and differences: it provides an insightful analysis of key points of interest in the comparison of the legal systems discussed.
International law is usually communicated in more than one language and reflects common norms that lawyers and adjudicators across national legal cultures agree on and develop together. As a result, the negotiation of the wording and meaning of international legislative texts is an integral part of legal interpretation in international law. This book sheds light on that essential interpretation process. Language and Legal Interpretation in International Law treats the subject from the perspective of recent legal and linguistic theories of meaning. Anne Lise Kjær and Joanna Lam bring together internationally renowned experts to provide strong theoretical and practical foundations for the study of legal interpretation in such fields as human rights law, international trade, investment and commercial law, EU law, and international criminal law. The volume explains how the positivist tradition--in which interpretation is understood as an automatic process by which judges simply apply the text of legislative instruments to specific fact situations--cannot be upheld in an era of pragmatic and cognitive meaning theories. Those theories instead focus on the context of interpretation and on the interpreter as a co-producer of meaning. Through a collection of thoroughly researched and timely essays, this book explores the linguistically and culturally diversified world of meaning-making in international law.
This volume examines the problems of legal and linguistic diversity in the EU legal system. In a union of 27 member states, with 23 different languages, how can the coherence of EU law be guaranteed? The volume addresses this central question from a range of theoretical and practical perspectives.
This casebook presents a deep comparative analysis of property law systems in Europe (ie the law of immovables, movables and claims), offering signposts and stepping stones for the reader wishing to explore this fascinating area. The subject matter is explained with careful attention given to its history, foundations, thought-patterns, underlying principles and basic concepts. The casebook focuses on uncovering differences and similarities between Europe's major legal systems: French, German, Dutch and English law are examined, while Austrian and Belgian law are also touched upon. The book combines excerpts from primary source materials (case law and legislation) and from doctrine and soft law. In doing so it presents a faithful picture of the systems concerned. Separate chapters deal with the various types of property rights, their creation, transfer and destruction, with security rights (such as mortgages, pledges, retention of title) as well as with harmonising and unifying efforts at the EU and global level. Through the functional approach taken by the Ius Commune Casebooks this volume clearly demonstrates that traditional comparative insights no longer hold. The law of property used to be regarded as a product of historical developments and political ideology, which were considered to be almost set in stone and assumed to render any substantial form of harmonisation or approximation very unlikely. Even experienced comparative lawyers considered the divide between common law and civil law to be so deep that no common ground - so it was thought - could be found. However economic integration, in particular integration of financial markets and freedom of establishment, has led to the integration of particular areas of property law such as mortgage law and enforceable security instruments (eg retention of title). This pressure towards integration has led comparative lawyers to refocus their interest from contract, tort and unjustified enrichment to property law and delve beneath its surface. This book reveals that today property law systems are closer to one another than previously assumed, that common ground can be found and that differences can be analysed in a new light to enable comparison and further the development of property law in Europe.
The book provides rule-by-rule commentaries on European contract law (general contract law, consumer contract law, the law of sale and related services), dealing with its modern manifestations as well as its historical and comparative foundations. After the collapse of the European Commission's plans to codify European contract law it is timely to reflect on what has been achieved over the past three to four decades, and for an assessment of the current situation. In particular, the production of a bewildering number of reference texts has contributed to a complex picture of European contract laws rather than a European contract law. The present book adopts a broad perspective and an integrative approach. All relevant reference texts (from the CISG to the Draft Common European Sales Law) are critically examined and compared with each other. As far as the acquis commun (ie the traditional private law as laid down in the national codifications) is concerned, the Principles of European Contract Law have been chosen as a point of departure. The rules contained in that document have, however, been complemented with some chapters, sections, and individual provisions drawn from other sources, primarily in order to account for the quickly growing acquis communautaire in the field of consumer contract law. In addition, the book ties the discussion concerning the reference texts back to the pertinent historical and comparative background; and it thus investigates whether, and to what extent, these texts can be taken to be genuinely European in nature, ie to constitute a manifestation of a common core of European contract law. Where this is not the case, the question is asked whether, and for what reasons, they should be seen as points of departure for the further development of European contract law.
