The Proprium of Property Law

Classical property law is not only losing economic relevance with the progressing dephysicalization of economic processes but is also increasingly perceived as a static field of private law, pursued by specialized lawyers working with rather inaccessible national concepts and dogmas that seem to have no significant relevance for the development of a digital economy. The mostly codification-driven comparative research on property law continues in the tradition of national property law codifications primarily addressing tangible objects. The research on property law should not restrict itself to this rather pragmatic approach, because in the end this arbitrarily delimits the concept of property law and reinforces the impression of classical property law only dealing with tangibles. Comparative property law should look beyond issues of codification and address the question of what is the essence of property law. Property law deals with the erga omnes effects of rights. It therefore not only addresses full-fledged property rights over movables or immovables but also covers partially absolute rights over these assets on the threshold to contract law. Property law also addresses absolute rights with regard to intangibles. This awareness should on one hand demand from any discussion on creating new (partially) absolute property rights to take notice of the state of the art of current (comparative) property law. It should on the other hand incite classical property lawyers to take part in these debates and to question the traditional concepts and principles in light of the new developments. Classical institutions of property law should be reconsidered from this point of view.

The Collateral Directive and Financial Collateral: Ownership of, or entitlement to, collateral?

It is controversial if incorporeal moveables (or choses in action) can be the object of property rights. The Collateral Directive arguably attempts to take the middle-ground in this debate. It acknowledges that a person may have either ‘full ownership of’, or 'full entitlement' to, financial collateral, which are conceptualised as intangibles. The approach adopted by the Directive throws up some questions: Is there a difference between owning or being entitled to collateral? If there is a difference, does this matter? The article first highlights the underlying controversy between these two concepts: which arises because of the different conceptions of real rights, or right in rem, and the need to protect the boundary between real and personal rights. The article then argues that although ‘owning’ and ‘entitlement’ are different concepts, there are also functional similarities between both concepts which arguably the Directive extends further than necessary.

The Abuse of Ownership: A Social Justice Perspective

Given that property rights are politically sensitive, and that the right of ownership is the most extensive property right, this article undertakes a political analysis of the so-called abuse of ownership doctrine as a private law limitation to the right of ownership. The notion of the abuse of rights as is defined and described by the Serbian academic, Professor Vodinelić, is explained, and examined with respect to how it fits into four different social justice theories. This analysis shows that the doctrine of abuse of rights would change in structure, and in the way it is applied, depending on the underlying value system which is adopted in a society.

The necessity of data allocation: A plea for a private law (property law) perspective

Clarifying the legal status of data is one of the major issues and challenges the European legislator has to deal and cope with while establishing a legal frame for a European data economy. Albeit at the beginning of the policy-making process the idea of creating a data right (on non-personal data) was on the agenda of the European Commission, this idea now seems to be have been abandoned. Instead, the focus actually lies on the creation of access and management regimes (e.g. Open Data Directive, Proposal for a European Data Governance Act). This approach seems, from a private law perspective, questionable, since the access right is inherently connected to – or more precisely, flowing from – an allocative right (in its most classical form: ownership). This article is a plea for a private law, or more precisely, property law perspective, namely for the creation of an allocative data right. It explores why the access approach from a private law perspective appears to be inconsistent and outlines the contours of such allocative right. In this context, contemporary property law theories are also assessed, since it is primarily property law which shall serve as the doctrinal background and framework for the envisaged allocative data right.