Eric Descheemaeker (ed.)
- Published in print:
- 2014
- Published Online:
- May 2015
- ISBN:
- 9780748693641
- eISBN:
- 9781474400930
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748693641.001.0001
- Subject:
- Law, Comparative Law
The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. ...
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The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. Bringing together contributions of scholars from the civilian tradition (France, Germany, Italy), the common-law world (England) and mixed legal systems (Quebec, Scotland, South Africa), The Consequences of Possession examines from a historical and comparative perspective the consequences which the law derives from the recognition of a possessory relationship between a person and a thing. Excluding rights which require more than possession to be triggered (such as prescriptive acquisition or transfer of title by delivery), it focuses on the protection of possession across the divide between the two great western legal traditions.Less
The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. Bringing together contributions of scholars from the civilian tradition (France, Germany, Italy), the common-law world (England) and mixed legal systems (Quebec, Scotland, South Africa), The Consequences of Possession examines from a historical and comparative perspective the consequences which the law derives from the recognition of a possessory relationship between a person and a thing. Excluding rights which require more than possession to be triggered (such as prescriptive acquisition or transfer of title by delivery), it focuses on the protection of possession across the divide between the two great western legal traditions.
Descheemaeker Eric
- Published in print:
- 2014
- Published Online:
- May 2015
- ISBN:
- 9780748693641
- eISBN:
- 9781474400930
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748693641.003.0008
- Subject:
- Law, Comparative Law
This chapter explores the notion of possession of incorporeal (intangible) things in its historical development and ask the question what – if any – role it can play in modern legal systems. When the ...
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This chapter explores the notion of possession of incorporeal (intangible) things in its historical development and ask the question what – if any – role it can play in modern legal systems. When the Roman sources use the term res (things), they usually referred to corporeal things; however, in a few texts, it is explicitly stated that the term comprises both corporeal (or tangible) and incorporeal things (res incorporales). Besides, possession in Roman law was, at least in principle, based on physical control. Since it is hardly conceivable that incorporeal things be physically controlled in a similar way, there was no possession of res incorporales. However, again, a few texts allude to a ‘quasi-possessio’ of certain intangibles. Taken together, these texts gave later interpreters the opportunity to develop a broader concept of possession of incorporeal assets. The writers of the ius commune were ready to accept as ‘things’ in the legal sense objects that the Roman lawyers probably never would have included in that category (like the view from a certain geographical point). They were also ready to extend the notion of quasi possessio beyond the situations in which it had been used in Roman law. Modern German law only recognises the possession of corporeal things. In other legal systems, like the Austrian, the situation is less clear. This chapter asks whether the notion of quasi possession of intangible property can have any legitimate place in the modern economic world where intangible assets are more important than ever. In particular, it discusses which of the traditional remedies granted to the possessor of a corporeal thing can be granted to the quasi possessor of an intangible assets and how the extension of the concept of possession needs to be limited.Less
This chapter explores the notion of possession of incorporeal (intangible) things in its historical development and ask the question what – if any – role it can play in modern legal systems. When the Roman sources use the term res (things), they usually referred to corporeal things; however, in a few texts, it is explicitly stated that the term comprises both corporeal (or tangible) and incorporeal things (res incorporales). Besides, possession in Roman law was, at least in principle, based on physical control. Since it is hardly conceivable that incorporeal things be physically controlled in a similar way, there was no possession of res incorporales. However, again, a few texts allude to a ‘quasi-possessio’ of certain intangibles. Taken together, these texts gave later interpreters the opportunity to develop a broader concept of possession of incorporeal assets. The writers of the ius commune were ready to accept as ‘things’ in the legal sense objects that the Roman lawyers probably never would have included in that category (like the view from a certain geographical point). They were also ready to extend the notion of quasi possessio beyond the situations in which it had been used in Roman law. Modern German law only recognises the possession of corporeal things. In other legal systems, like the Austrian, the situation is less clear. This chapter asks whether the notion of quasi possession of intangible property can have any legitimate place in the modern economic world where intangible assets are more important than ever. In particular, it discusses which of the traditional remedies granted to the possessor of a corporeal thing can be granted to the quasi possessor of an intangible assets and how the extension of the concept of possession needs to be limited.
Descheemaeker Eric
- Published in print:
- 2014
- Published Online:
- May 2015
- ISBN:
- 9780748693641
- eISBN:
- 9781474400930
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748693641.003.0009
- Subject:
- Law, Comparative Law
Property law in South Africa is strongly based on Roman law, where a strict divide between ownership and possession was followed. In South Africa possession is protected by the mandament van spolie ...
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Property law in South Africa is strongly based on Roman law, where a strict divide between ownership and possession was followed. In South Africa possession is protected by the mandament van spolie (spoliation order) which has its roots in canon law. However possessory doctrine rests on its Roman foundations. Quasi-possession refers to the possession of rights (real or personal). A strict divide is made between the petitory and possessory trials. During the possessory trial the court does not consider the rights of the parties. However the Supreme Court of Appeal has lately, to a certain extent, started to do so in the case of the protection of quasi-possession. This chapter examines these developments against the historical background of the development of South African law.Less
Property law in South Africa is strongly based on Roman law, where a strict divide between ownership and possession was followed. In South Africa possession is protected by the mandament van spolie (spoliation order) which has its roots in canon law. However possessory doctrine rests on its Roman foundations. Quasi-possession refers to the possession of rights (real or personal). A strict divide is made between the petitory and possessory trials. During the possessory trial the court does not consider the rights of the parties. However the Supreme Court of Appeal has lately, to a certain extent, started to do so in the case of the protection of quasi-possession. This chapter examines these developments against the historical background of the development of South African law.
