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Questions and Answers
What does 'Droit de suite' refer to in property law?
What does 'Droit de suite' refer to in property law?
What type of rights are termed 'absolute rights'?
What type of rights are termed 'absolute rights'?
The principle of numerus clausus allows parties to create any obligations they want in contracts.
The principle of numerus clausus allows parties to create any obligations they want in contracts.
False
What is the principle of publicity in property law?
What is the principle of publicity in property law?
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Which rule states that older property rights take precedence over newer rights?
Which rule states that older property rights take precedence over newer rights?
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The __________ rule indicates that only a person with full ownership can transfer full ownership.
The __________ rule indicates that only a person with full ownership can transfer full ownership.
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Match the following principles with their descriptions:
Match the following principles with their descriptions:
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What is required for the transfer of immovable property ownership in Germany?
What is required for the transfer of immovable property ownership in Germany?
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Ownership of specific goods in England is transferred upon the conclusion of a contract.
Ownership of specific goods in England is transferred upon the conclusion of a contract.
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What happens to the ownership of individual quantities in co-ownership?
What happens to the ownership of individual quantities in co-ownership?
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In quasi commingling, the separate objects mix together and lose their identifiable status.
In quasi commingling, the separate objects mix together and lose their identifiable status.
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According to German law, what is required for co-ownership in commingling?
According to German law, what is required for co-ownership in commingling?
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What is the principle of specificity in property rights?
What is the principle of specificity in property rights?
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What does specificatio refer to?
What does specificatio refer to?
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According to Dutch law, ownership is determined by the person who has a decisive influence on the production process.
According to Dutch law, ownership is determined by the person who has a decisive influence on the production process.
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Under German law, specificatio is possible if the value of labor added is more than 60% of the material's value.
Under German law, specificatio is possible if the value of labor added is more than 60% of the material's value.
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Who has the proof of ownership in cases of specificatio?
Who has the proof of ownership in cases of specificatio?
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What term is used for one who holds the object for the owner?
What term is used for one who holds the object for the owner?
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What is required for ownership of immovables?
What is required for ownership of immovables?
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In causal transfer systems, ownership automatically reverts if the contract is invalid.
In causal transfer systems, ownership automatically reverts if the contract is invalid.
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What does the principle of abstraction imply?
What does the principle of abstraction imply?
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Which of the following is a valid requirement for possession in France?
Which of the following is a valid requirement for possession in France?
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What are the two types of interference against property rights?
What are the two types of interference against property rights?
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What is the action for complaint used for in France?
What is the action for complaint used for in France?
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What is 'self-help' in the context of property rights in Germany?
What is 'self-help' in the context of property rights in Germany?
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In German law, a possessor can recover the object immediately after an interfering act.
In German law, a possessor can recover the object immediately after an interfering act.
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What are the owners' rights in terms of ownership?
What are the owners' rights in terms of ownership?
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Which of the following describes co-ownership?
Which of the following describes co-ownership?
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What legal rights do property owners have against interference in France?
What legal rights do property owners have against interference in France?
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In common law, ownership and possession are treated as separate concepts.
In common law, ownership and possession are treated as separate concepts.
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What is 'derivative acquisition of property'?
What is 'derivative acquisition of property'?
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What is 'usucapio'?
What is 'usucapio'?
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What is the effect of acquisitive prescription in French law?
What is the effect of acquisitive prescription in French law?
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Under German law, acquisition of ownership cannot be claimed against those listed in the public land register.
Under German law, acquisition of ownership cannot be claimed against those listed in the public land register.
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What defines genuine commingling in Dutch law?
What defines genuine commingling in Dutch law?
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Study Notes
Property Law
- Governs property rights (absolute rights)
- Droit de suite: the right follows the object
Relative Rights
- Effects between the parties.
- Personal rights arise from contracts and bind two or more parties
Absolute Rights
- Effects against anyone.
- Rights always pertain to something.
- Property rights: rights between an individual and an object, enforceable.
Civil Law vs. Common Law
-
Civil Law: Unitary system
- The right of ownership is the same regardless of whether it is held on immovable or movable objects.
-
Common Law: Fragmented system
- Two kinds of property law: Land law & Personal property law.
- Division follows the distinction between immovable objects and movable objects.
Types of Property Rights
-
Primary Rights:
- Right to use, control, possess, and alienate property.
- Limitations: owner cannot do everything (e.g., change a monument without permission from the government)
-
Secondary Rights:
- Rights held by non-owners to have certain rights without full ownership.
- Secondary right to use: Usufruct and servitude.
- Secondary security rights: Pledge and mortgage.
Principle of Numerus Clausus
- Concept: Persons can create almost any obligations they want in a contract.
- Example:
- An owner of land can create as many rights of servitudes as he wishes on his land.
- It is pointless to create more than one usufruct on a car.
Principle of Specificity
- Concept: Right created on goods/land should be specific.
- Mass objects cannot hold individual property rights if they are mixed with others.
Principle of Publicity
- Concept: If the property rights affect everyone, everyone must know who has which rights.
- Immovable objects: Publicity is realized through a land registry.
- Movable objects: Publicity of ownership expressed by possession.
Nemo Dat Rule
- Concept: You need competence to dispose of your property right.
- Who can transfer the right?:
- Only a person with full ownership can transfer full ownership.
- A person with limited rights, such as usufruct, has the right to transfer those limited rights.
Prior Tempore Rule
- Concept: When multiple rights or claims exist, older property rights are superior to newer rights.
- Example (Hypothecs):
- When land is sold, the owner of the older hypothec gets paid first, then the holder of the second hypothec, and creditors with no property rights get paid last.
- Pledges (movable property) - same concept: Security interest where elders take possession of personal property as security for obligations.
Rule of Accessority
- Concept: A property security right is created to secure a personal right, such as a debt or loan.
- The existence of the security right relies on the existence of the personal right.
- If the personal right is transferred, so is the security right.
Specific Protection
- Concept: The duty that comes from a property right can be enforced legally.
-
Civil Law: The right of ownership is protected by vindication.
- Allows someone to reclaim their property if someone else has it.
-
Common Law: Land rights are enforceable, movables are under the tort of conversion.
- Tort of conversion: Choose between paying damages, returning the object, or ending the interference with it.
Transfer to a Bank Account
- Does not amount to a transfer of ownership.
- Forms an obligation between the bank, debtor, and client.
- Ownership can exist and be transferred for banknotes and coins only.
Transferring Property Rights: Immovables
- Germany: Acquisition or abandonment of ownership requires agreement between parties before a notary public + registration of the right.
- England: Purchaser must investigate vendor's title, deeds go in a registered system.
-
France:
- Ownership passes with contractual agreement.
- Registration serves only as proof that one is legally entitled to the right.
Consensual System (France, Belgium & England)
- Concept: Ownership of property is transferred simply by the agreement of the parties involved in a valid contract of sale, even before the goods are delivered.
-
England:
- Movable goods:
- Specific goods: Directly as the contract is concluded.
- Unascertained goods: When both parties agree on the item.
- Immovables: Property right is transferred between the parties upon conclusion of the contract unless registered.
- Movable goods:
- Exceptions:
- Generic goods: Ownership transferred after identification and measure.
- Sale ex bulk: A specific portion of a bulk requires appropriation, but a share of the bulk can be transferred immediately.
- Unmanufactured goods: Transfers when goods are completed and deliverable.
Traditio System
- Concept: Requires an act to transfer property right.
- Causal or abstract system.
- Transfer of direct possession: Handing the object or giving access to it.
- Situations where it is not possession:
- ...
Transfer of Ownership
-
Causal Transfer Systems
- Transfer depends on the validity of the underlying contract.
- Ownership reverts if the contract is invalid.
- Causal Consensual System: No delivery required
- Causal Traditio System: Delivery is required
- Risks: No third-party protection -- a safeguard provision is needed if a third party is involved.
-
Abstract Transfer Systems
- Transfer is valid even if the contract is not valid.
- Ownership doesn't automatically revert, but the buyer must return the object to the seller to revert it.
- Germany: Allows the transfer of ownership from a second party to a third party on an invalid contract.
-
Mitigation/Exceptions:
- For immovables, the transfer is still tied to the validity of the contract.
- Fraud, duress, or minority will void the contract and ownership transfer.
- Mistakes only affect the validity of the contract, not ownership transfer.
- Principle of Abstraction: The obligation to transfer possession does not make one an owner, but only gives the right to claim possession.
Possession
-
Civil Law Systems: Ownership can be obtained through possession via usucapio.
-
France:
- Possession requires physical possession and the intent to possess.
- Detention ≠ possession, meaning no ownership is acquired through detention.
- Valid possession requires it to be uninterrupted, peaceful, visible, and clear.
-
Germany: Legally protected possessors are recognized.
- Direct possession: The possessor holds and controls the object personally.
-
Indirect possession: Someone holds an object on another's behalf.
- Ends if the direct possessor loses control, rejects the indirect possessor's role, or the indirect possessor loses the right to reclaim the property.
-
France:
-
France and Germany: Legal presumption that the possessor of movable objects is the owner.
- If one interferes with a movable, the owner can recover it through vindication.
Protection of Possession
- Property Rights: Protected from interference in the European Convention on Human Rights (ECoHR).
-
Types of Interference:
- Protection of a property right against dispossession.
- Protection against disturbance of the enjoyment of possession.
-
France:
-
Possessory Actions:
- Action for complaint: For disturbance or dispossession by a non-violent act.
- Denonciation de nouvel oeuvre: Against future interference by construction work.
- Action for restoration: Covers the loss of control by a violent act, for recovery of possession and restoration to the original condition.
- Possessory Protection: Possession is protected even if the possessor is not the owner, but only if possession is without flaw.
-
Possessory Actions:
-
Germany:
-
Self-Help:
- Grants the possessor the right to defend their position.
- Besitzehr: Self-defense against actual force.
- Besitzkehr: The possessor can immediately recover the object after an interfering act.
-
Possessory Actions:
- Regulated by the BGB (German Civil Code) through judicial action for interference/disturbance.
- The interferer cannot claim to be the owner. The rightful owner must assert ownership through separate legal actions.
-
Self-Help:
Ownership
-
Ownership Rights:
- Right to use: The owner has the right to use the property.
- Right to enjoy: The owner has the right to enjoy the property.
- Right to alienate: The owner can sell or transfer the property to others.
- Right to stop interference of third parties.
-
Remedies against Interference:
- Vindication: Seeking an order for the return of the object.
- Actio negatoria: Seeking an injunction against a third party, restraining them from interfering with the object.
-
Limitations:
- Public Law: Imposed by the state for certain services (e.g. taxes, zoning regulations).
- Private Law: Imposed a standard of reasonableness on the owner (e.g. right of path, contractual limitations).
Co-ownership
- Legal concept: Shares of the right to ownership.
- Each share entitles its holder to the whole right of ownership.
- Each has the right to use and enjoy the property.
- May include servitudes and usufructs.
- Parties: Bound to each other through the community and must share the object.
- Each may freely use the object as long as they do not affect or deprive the other co-owner.
- Each has the right to oblige the other to contribute to maintenance.
- None may modify or sell the object without the other’s consent.
- One may transfer their share individually.
-
Leaving co-ownership: Not possible if
- Agreed to keep the ownership undivided.
- The property is practically or legally indivisible - it must be sold, and the proceeds divided among the co-owners.
Apartment Rights - Co-ownership
- Concept: Co-ownership of common parts, sole ownership of private parts (for the owner).
- Owner Rights: Unitary ownership of private parts and co-ownership of public ones.
-
Co-Owner Rights:
- No illegal/harmful activities.
- Preserve their flat.
- Consent to reparations.
- Contribute to maintenance.
-
Quota: Each apartment owner holds a share of the common elements of the building expressed as a percentage.
- Can vary
- Co-owners are obliged to contribute according to their quota for maintenance, burdens and responsibilities.
-
Dutch Law: Exclusive entitlement to a certain space and co-ownership of common parts.
- The right to the exclusive part of the building is a right accessory to the share in the community, not one of ownership.
Protection of Ownership
-
France:
- Registration and vindication: Forms of protection.
- Damages for harm: The owner can claim damages for harm caused to the property.
-
Other Actions:
- Action en bornage: Landowner can request a neighbor to set boundaries.
- Action confession: Servitude/usufruct holder can assert their right.
- Action négative de servitude: Owner can ward off unjustified servitude claims.
- Abus de droit et trouble de voisinage: Neighbor has the right to claim compensation against an interfering neighbor.
- Germany: Rei vindicatio: The owner can request the return of the object held by others without entitlement.
- The owner must prove their ownership while the holder must prove their right to possession.
- Possessor is not obligated to return the object if they have a right of possession.
- Right to claim removal of an interference if sufficiently linked to human behavior.
Non-Domino Acquisition
- Concept: When a third party acquires property from someone who was not authorized (civil law) or did not have a better title (common law).
-
Requirements for Protection:
- Civil Law: Third party must obtain with good faith.
- Common Law: Third party must act in good faith, have given something of value in exchange and been unaware of someone else having a better legal claim.
-
Movable Property (Spanish Law): Possession in good faith = having a title.
- If the original owner lost or was deprived, they may reclaim it.
-
Immovable Property (Spanish Law): Third-party acquirers are protected if:
- Acquired in good faith.
- Acquired against payment (consideration).
- The transferor is listed in the property registry as the owner.
- The acquirer registers the new acquisition in the land registry.
- Even if the title is later annulled, the acquisition remains valid.
Common Law
-
English Law: No distinction between ownership and possession.
-
Land:
- Specific action for recovery: Can claim any damages against it.
- Trespass land: Can claim action for damages, file an action or injunction.
- Nuisance: Claim damages, injunction, self help (direct interference only).
- Goods: Recovery can also be attributed as a tort law remedy.
- Protected by tort law: Courts take into account who has the best title to possess.
-
Land:
-
Protection of Goods - Property Torts:
- Tort of Negligence: Entitlement to compensation when there is a breach in duty of care.
- Tort of Conversion: One who obtains the goods of another person and disposes of them for their own benefit is guilty of conversion (must be deliberate).
- Trespass: Direct physical interference with another's good (does not require material damage, and the right to sue lies with the possessor).
-
Remedies:
- Attribution of damages: Can oblige the tortfeasor to pay for damages.
- Right to claim an injunction: At the discretion of the court.
- Negative injunction: Right to claim that the defendant refrains from breaches in the future.
- Mandatory Injunction: Right to force the defendant to undo the effect of past breaches.
- Interlocutory Injunction: Provisional relief until the hearing of the case.
Common Law - Trust
-
Trust: One holds a right on behalf of another for a purpose.
- Arises from a declaration by a right holder with the intention to create a trust.
- Settlor: Creator of the trust.
- Trustee: Person holding the right; they have duties and powers (legal owner).
- Beneficiary: Person for whom the right is held (equitable owner).
-
Characteristics:
- A settlor places the property in a trust to provide for their family after they die.
- Trustee can be a professional or family member experienced in money management.
- Division of ownership between legal and equitable.
-
Fiduciary duty:
- Trustee's duty to the beneficiary to exercise their right in a way that benefits them.
- The vesting of a right in a person on trust in no way alters the nature of the right to be held nor the identity of the person who can exercise it.
- Legal Protection: The beneficiary's equitable ownership is protected by courts. If not exercised properly, the trustee will be liable to a money remedy in favor of the beneficiary.
- Equity courts: Enforce equitable ownership.
-
Common law courts: Enforce legal ownership.
- The origin of the remedy is in the jurisdiction of equity.
Acquisition of Property
- Derivative acquisition of property: Receiving a right that previously belonged to someone else (e.g. buying someone's car).
- Original acquisition of property: Acquisition of a new right, originating in the hands of the new owner (e.g. accession, commingling, specification).
Acquisition by Prescription (Usucapio)
-
Acquisitive prescription: Gaining or losing property rights through the passage of time and continuous possession.
- Depends on good faith and title.
- English Law: Adverse possession allows a person to acquire ownership of land by possessing it in an open, continuous, and adverse way to the owner's interests, over a specific period (usually 12 years).
-
Extinctive prescription: Loss of rights because action is not brought in time.
-
English Law: Principle of limitation of actions.
- Strong effect: Person no longer has the right or can take action after x time.
- Weak effect: Person still holds the right, but cannot take action/defend it.
-
English Law: Principle of limitation of actions.
Acquisition of Ownership by Acquisitive Prescription
-
French Law:
-
Acquisitive prescription: Allows someone to own a thing through possession without having to show a title and without having bad faith used against them.
- Typically applies to acquisition of small lands because of unclear borders between neighboring properties.
-
Effect of ownership rights:
- Extinctive prescription does not apply to ownership.
- If one meets the requirements for acquisitive prescription, they can become the owner, causing the original owner to lose their right.
-
Prescription periods:
- After 30 years, one can obtain ownership or any right, even if it began in bad faith.
- Prescription period is reduced to 10 years if the possessor:
- Acts in good faith.
- Acquired possession on valid legal grounds (sale or servitude agreement).
-
Permission and Detention:
- Detainer: If they have permission to use the land, this prevents acquisitive prescription.
- Interversion/Inversion: Change from detention to possession, occurring when the owner is aware of the change. This initiates the prescription period.
-
Succession of Possession:
- Possessor can add the duration of their predecessor’s possession to their own.
- Successors can be universal (inherits as an heir) or singular (acquires as a buyer).
- Continuous use by different possessors does not guarantee succession of possession without transfer.
-
Acquisitive prescription: Allows someone to own a thing through possession without having to show a title and without having bad faith used against them.
-
German Law:
-
Land Law: Cannot be used to claim ownership against those in the public land register.
- Requirements: Registered as the owner or holder for at least 30 years.
- Movables: Possessor must hold property for their own use, must act in good faith, and possessed the item for 10 years minimum.
-
Land Law: Cannot be used to claim ownership against those in the public land register.
-
English Law:
-
Prescription refers to acquiring property rights such as:
- Easement: Right of way over one's land.
- Profits a prendre: Right to take natural resources from one’s land.
-
Adverse possession: Acquire full ownership of land through long-term possession.
- Fee simple estate: Full ownership of land without fixed duration.
- Leasehold estate: Temporary right to hold land.
- One can apply, after 10 years of possession, to be registered as the legal owner (owner will be notified of the application).
- If opposed: Application is rejected, can reapply in two years if the owner doesn't take action to reclaim.
- If not opposed: Registered as legal owner.
-
Prescription refers to acquiring property rights such as:
Acquisition of Servitude by Acquisitive Prescription
-
French Law:
- Servitudes: Rights over one’s land can be acquired through acquisitive prescription after 30 years, same conditions as ownership (peaceful, public, and continuous possession).
-
Special Considerations:
- For a servitude to be acquired, it must be permanent. A right of way may not fulfill the permanence requirements as those are non-continuous.
- Servitudes involving physical structures in restricted zones can lead to acquisitive prescription if they have been in place for enough time.
- Possession of a servitude by a co-owner is equivocal and cannot lead to prescription.
- Right of way (enclave in French law): An owner whose land is landlocked can claim a right of way over neighboring land, but they must pay compensation for any damages.
-
German Law:
- Neither a right of way nor the presence of windows can be acquired by prescription.
- Disputes over right of way/view are resolved by extinctive prescription, meaning the right to bring a claim may expire after a set amount of time.
-
English Law:
- Only easements and profits a prendre are acquired through prescription.
- For prescription to apply, the use of the servitude must meet specific conditions.
- Usage must be without force, concealment, and permission.
- Right of way is considered continuous by definition.
- Prescription applies when the right is exercised by the owner against another.
- The usage of the right against a holder does not give rise to prescription.
Accession of Movables to Land
-
Concept: When a secondary object becomes part of the first one.
- Land is always the primary object. Structures built on the land are secondary (or attachments to the land).
- Value: When merged, the law ensures they are preserved and not destroyed by separation.
- Third Parties: When inspecting a property, they should know which objects are included with the land.
- Status: Attachment of a movable to land changes its status to immovable.
- Original Acquisition: The owner acquires ownership of the attached movable by virtue of accession. The owner has full ownership of the land and object.
-
Right of Removal: Allows tenants or others to remove the object attached to land.
- First Form (French law): The attachment never becomes part of the land, and the tenant retains ownership.
- Second Form (English Law): Object accedes to the land, but the tenant has the right to remove it.
-
German Law:
- Essential components: Movables that become part of the land through accession (building or crops).
- Conditions: Accession occurs when the components cannot be separated without causing damage or changing the object's nature.
-
English Law:
- Tenant fixtures: Items added to the land by a tenant that may be removed at the end of the lease, even if they became part of the land through accession.
-
Criteria:
- Physical criterion: If the removal would cause damage to the attachment or the land (includes objects attached by screws or bolts).
- Purpose of annexation: Intention behind the attaching object determines whether it accedes to the land. Intention is derived from its nature and mode of attachment.
-
French Law:
- Physical Criterion: Object is attached to land and cannot be taken without damages.
- Incompleteness: Accession may occur even if the removal does not cause damage. Things necessary for the building to be ‘complete’ are deemed immovable even if removed easily.
-
Lease:
- During: Tenant retains ownership.
- After: Landowner may acquire ownership, unless agreed otherwise.
Accession of Movables to Movables
- German Law: Accession only occurs with essential components.
-
Principle Object:
- When two movables are combined, one can be essential parts and the other accessory.
- Ownership of the accessory follows the essential parts.
-
Determining Ownership:
- Whether one object is viewed as primary depends on the nature of the objects and their relationship.
- If neither of the objects can be clearly considered the primary object, co-ownership of the combined object may result.
Commingling
-
Dutch Law:
- Genuine commingling (confusio): When different quantities of items are mixed into a single bulk, they become one thing. The owners of the individual quantities become co-owners of the entire bulk.
Quasi Commingling (Commixtio)
- When separate objects mix together, they remain identifiable as separate items
- Co-ownership is not possible with quasi commingling
- German law permits co-ownership in commingling only if the goods of different owners are mixed into a specific bulk
- The objects subject to the property right must be identifiable for co-ownership to exist
Specificatio
- Materials are transformed into new objects with a distinct identity from their original materials in Specificatio
- Previous ownership rights disappear in Specificatio
- Dutch law states ownership is determined by the person who has a decisive influence on the production process and bears the risk of the object's success or failure
- German law differentiates Specificatio from co-ownership when the value of the labour added to the material is 60% or less of the value of the materials used
- The owner of the materials or the person denying the manufacturer's right to ownership through specificatio bears the burden of proof
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Test your knowledge of key concepts in property law, including the Droit de suite and the principles governing the transfer of ownership. This quiz covers various legal principles, rights, and obligations relevant to property law across different jurisdictions, including Germany and England.
