Looking at property law from only one particular national perspective – even if that perspective is impressive, as is the case with U.S. law – is, in our globalising world, no longer possible. Markets are integrating, both at a regional and at a worldwide level, and what happens elsewhere, in both economic and legal terms, affects all of us.
This is how European Union law, and the laws of the E.U. Member States, may begin to affect U.S. lawyers (but certainly not them alone) after the agreement on the Transatlantic Trade and Investment Partnership (TTIP) enters into force. The creation of one integrated transatlantic market will result in more and more areas where U.S. and E.U. law will meet and may result in legal conflict.
The European Union does not have one system of property law. Each Member State has its own law of property. However, E.U. internal market law, with its freedom of goods, services, capital, and persons, has an increasing impact on national property law. More and more the question is raised if a European property law could be developed.
In his recently published article (based upon his recently published book), Christian von Bar from the University of Osnabrück in Germany explains his view on how a European property law could look like.1 His approach is based on the civil law tradition, more particularly the German civil law tradition. In that tradition, the academic analysis of the law is highly abstract and aimed at overall systematisation by presenting strictly defined concepts and meticulously formulated rules. As a consequence, law professors play a prominent role in the process of lawmaking and adjudication.
The civil law tradition in France is less rigorous and more open. To give but one example from property law: Under the German Civil Code, “ownership” is the most complete right a person can have regarding a physical thing (§ 90 German Civil Code). As a consequence of this definition, ownership of claims does not exist; you can only be “entitled” to a claim.
It may be obvious that, given this very strict definition, German property law has considerable problems incorporating virtual ownership. In France, however, “ownership” is not so much a strictly delineated concept, but far more an open “notion.” Under French law, therefore, ownership of claims is possible. Do not make the mistake that this is just a play of words: In a codified civil law system, different rules may apply to ownership in comparison to entitlement. Understanding concepts is vital and definitions matter, also in legal practice.
Christian von Bar’s article clearly reflects the German style of legal thinking. In a long and carefully built line of arguments, he describes the common features of the European property law systems. His focus is on not only the civil law tradition in Germany, France, or the Scandinavian countries (which are far more open to a case-based than a rule-based approach), but also the common law tradition that can be found in England, Wales, Northern Ireland, and Ireland.
In Europe we also have several so-called “mixed” legal systems (Cyprus, Malta, and Scotland) and so-called “micro” legal systems (e.g. the Channel Islands, where old customary property law from the Duchy of Normandy still applies, and Liechtenstein). The article does not discuss these mixed and micro systems.
In his article von Bar asks himself three questions: (1) Can sufficient common elements be found in the legal systems of the European Union to establish a European law of patrimonial rights with effect against third parties (patrimony meaning a person’s assets or estate), (2) what can such a European “property” law say about the content of such rights, and (3) how can the various property law systems be analysed in such a way that they can be studied from an overall viewpoint, without ignoring regional differences? He then asks himself, first of all, what “property law” is and what “property rights” are, which objects of property law can be found, and which types of property rights can be distinguished.
The objects of property rights are classified by von Bar as, first of all, everything that is not a person, but still is an entity; things are those objects (entities) as to which property rights are possible. He then goes on to distinguish tangibles from intangibles (“normative things”) and qualifies a plot of land as a normative thing with a physical substratum (“normative Sachen mit einem physischen Substrat”).
It is the law that creates ownership of a particular plot of land, by delineating what the law accepts as plots of land. As long as there is no, by legal definition, plot of land, there can be no object of property law and hence no ownership of land. This qualification should be understood against the background of the German system of land registration under which, to mention but one aspect, a transfer of land cannot take place without the exact boundaries of the relevant plot of land having been set before the transfer becomes effective.
In a highly interesting part of von Bar’s article, he then discusses the various types of property rights by describing these in terms of physical characteristics of their object, and the temporal nature and content of such rights. Certain property rights are possible only with regard to tangibles (such as, in the German tradition, ownership), other property rights are possible with regard to both real and normative things (e.g. security rights). Some property rights are of unlimited duration (such as ownership), others are limited in time, whereas, again, some property rights give you almost complete power over an object (again: ownership) and others only limited powers (security rights).
The study offered by von Bar comes rather close to the “new private law” analysis, recently advocated by, among others, Henry Smith from Harvard Law School.2 The new private law analysis looks at interactions between individuals and firms from the perspective that contracts, torts, and property are connected to one another, belonging to one system of law: private law, distinguished from public law, which deals with interactions between individuals and the government. For property lawyers who are interested in this approach, von Bar’s study shows how European legal scholarship could contribute to this development in the U.S.
- His book is entitled: Gemeineuropäisches Sachenrecht Band I (C.H. Beck, 2015). He played a prominent role in the attempt to write a European Civil Code, which failed due to political pressure from leading European states, such as France, Germany, and the United Kingdom.
- See the “new private law” blog.