Law of Obligations and Contracts

Japanese Law ◽  
2021 ◽  
pp. 144-175
Author(s):  
Hiroshi Oda
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Public Welfare ◽  
Real Property ◽  
Commercial Practice

The Constitution protects property rights, but it is not ‘sacrosanct’. Property rights can be restricted on the ground of public welfare. Real security rights are covered in this part. Although real property rights are to be created by statutes only, in reality, there have been cases where property rights were created by case law on the basis of commercial practice.

Property Law

Japanese Law ◽  
2021 ◽  
pp. 176-191
Author(s):  
Hiroshi Oda
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Civil Code ◽  
Public Welfare ◽  
Property Law ◽  
Real Property ◽  
Commercial Practice

The Constitution protects property rights, but they are not ‘sacrosanct’. Property rights can be restricted on the ground of public welfare. Real security rights are covered in this part. Although real property rights are to be created by statutes only, in reality, there have been cases where property rights were created by case law on the basis of commercial practice. The Civil Code lists ten kinds of real rights. In addition to ownership, there are four types of real rights which allow a person to use another’s property: superficies, emphyteusis, servitude, and commonage. There are four types of real security rights: rights of retention, preferential rights, pledge, and hypothec.

Real Property Security Interests in Nigeria: Constraints of the Land Use Act

1994 ◽  
Vol 38 (1) ◽  
pp. 1-18
Author(s):  
Emmanuel O. Nwabuzor
Keyword(s):  
Land Use ◽  
Property Rights ◽  
Transaction Costs ◽  
Economic Efficiency ◽  
Real Property ◽  
Commercial Practice ◽  
Secured Transactions ◽  
Efficiency Theory ◽  
Efficient Regime ◽  
The Cost

The modern idea of secured transactions is based on the notion of economic efficiency, which implies the minimization of transaction costs while ensuring optimal returns. The efficiency theory posits that unclear definitions and unprotected allocation of property rights inhibit the production of wealth, because they raise the transaction costs of land and impede exchange. The more precisely property rights are stated and assigned, the lower the cost of establishing ownership, and the extent of one's interest in any given piece of land.1 Proceeding from the efficiency theory, contemporary commercial practice is not willing to accommodate the ancient, unnecessarily complicated system of conveyancing, which makes the taking of security in real property expensive. Thus, an efficient regime of secured transactions should be simple, fast, cheap and predictable.

Property Rights, Fiduciary Duties, and the Control of Assets

2018 ◽  
Author(s):  
Aruna Nair
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Property Right ◽  
Formal Structure ◽  
Fiduciary Duties ◽  
Legal Power ◽  
The Law ◽  
Fiduciary Relationships ◽  
Relationship Of

This chapter examines the law governing the availability of claims to traceable proceeds. It argues that the language used in the case law—which uses the terminology of property rights and of fiduciary relationships—cannot fully explain the law, since such claims are often available in the absence of fiduciary duties and are not available to holders of many types of property right. It argues that such claims instead presuppose a relationship of ‘control of assets’: where the defendant has a legal power to deal with some asset, correlating to a vulnerability to a loss of rights in that asset on the part of the claimant, and coupled with a duty not to exercise the power. It argues that relationships that have this formal structure also share normative characteristics that justify the subordination of defendant autonomy that has been shown to be at the heart of the tracing concept.

Property

2020 ◽  
pp. 276-292
Author(s):  
J. E. Penner
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Property Law ◽  
Private Law ◽  
Making Sense ◽  
The Social ◽  
Bundle Of Rights ◽  
High Level

This chapter discusses property law. It considers the idea that property had a “nominalist” ontology, and it was in danger of “disintegration” as a working legal category for that very reason. Nominalism about property has had a significant impact in U.S. case law. The concern here, however, is whether it is a helpful stance to take as a theorist of property. The chapter argues that it is not. There are indeed “high” level abstractions about property which one cannot plausibly do without if one is to understand property rights and property law doctrine. Moreover, the “bundle of rights” (BOR) challenge does not assist one in making sense of these abstractions. The chapter then looks at the conceptual failure of BOR and the New Private Law as it relates to property. BOR is generally regarded as being underpinned by what might be called the Hohfeld-Honoré synthesis. The synthesis rests upon a fairly serious mistake, which is that while the Hohfeldian examination of jural norms is analytic if it is anything, Honor’s elaboration of the incidents making up ownership is anything but—it is functional. This means that Honoré describes the situation of the owner not principally in terms of his Hohfeldian powers, duties, and rights vis-à-vis others, but in terms of the social or economic advantages that an owner has by virtue of his position, and the terms and limitations of those advantages.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

scholarly journals Problems Associated with the Legal Substance of Real Estate Encumbrances

2015 ◽  
Vol 1 (1) ◽  
pp. 54
Author(s):  
Inga Kudeikina
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Common Good ◽  
Case Law ◽  
Related Case ◽  
The Real Estate ◽  
Special Procedure ◽  
Estate Owner ◽  
Entire Society ◽  
Real Estate Owner

The article is devoted to the problems pertaining to the establishment of encumbrances on real estate. Encumbrances that are created on the basis of law have a different legal substance. As a rule, encumbrances by law are significant and bring benefits to an unlimited number of rightholders. This type of encumbrances includes various protection zones, roads, nature reserves, etc. It is assumed that these encumbrances are for the common good; therefore, the rights of an owner may be restricted. Legislation allows establishing encumbrances without any authorisation from the real estate owner. The objective of the thesis is to analyse the legitimacy of encumbrances based on law in the context of the impairment of owner's property rights. To this end, both descriptive and analytical methods have been employed to analyse the legal grounds for encumbrances and related case-law. The study has relied on both legislation and case-law. The results of the study give strong grounds to conclude that a special procedure could be applied to the establishment of encumbrances in situations when those are intended to meet the needs of the entire society or individual communities of certain regions. Like any other encumbrances, those established by law restrict owner's property rights. A real estate encumbrance should be recognised as a restriction on owner's property rights. Certain remedies should be introduced with a view to balancing the rights and interests of the society and the owner and minimising the adverse effects of encumbrances. Such remedies could comprise an owner's right to claim reasonable compensation, challenge the establishment of encumbrances and initiate their annulment.

1. Introduction to Property and Land

2019 ◽  
pp. 1-27
Author(s):  
Martin George ◽  
Antonia Layard
Keyword(s):  
Property Rights ◽  
Residential Area ◽  
Third Party ◽  
Real Property ◽  
Personal Property ◽  
The Third ◽  
English Law ◽  
The Third Party ◽  
The Right ◽  
Ownership Rights

Land is an important commodity in society that it is both permanent and indestructible, two features which distinguish it from other forms of property. More than one person can have a relationship with the land and share the right to possess it. The right to possess a land is known as ownership right, but it is also common for people to have enforceable rights in other people’s land. This is the third party right, an example of which is where the owner of a house in a residential area agrees with neighbours that the house will only be used as a residence. This chapter discusses land and property rights, ownership rights, third party rights, and conveyancing. It also examines the distinction in English law between real property and personal property, the meaning of land, items attached to the land, fixtures and fittings, and incorporeal hereditaments.

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