Causation in Tort Law PDF

Week 10 Causation in Fact - Establishing Causation Meaning: Causation in fact refers to the principle that the damage would not have occurred "but for" the tortfeasor's actions. This concept is used across all three jurisdictions. It is commonly known as the "but-for" test in the UK. Test for Caus...

Week 10 Causation in Fact - Establishing Causation Meaning: Causation in fact refers to the principle that the damage would not have occurred "but for" the tortfeasor's actions. This concept is used across all three jurisdictions. It is commonly known as the "but-for" test in the UK. Test for Causation in Fact: Condition sine qua non: The "but-for" test asks whether the damage would have occurred if the tortfeasor had not acted in the way they did. o If the answer is NO, this means there is a causal link between the tortfeasor's actions and the damage. o If the answer is YES, there is no causal link, and the defendant may not be liable. Deficiencies When Establishing Causation 1. Simultaneous or Multiple Causes (The "Two Hunters Problem"): In cases where multiple causes contribute to the damage, such as in Cook v. Lewis (1952), the "but-for" test may be either impossible to apply or lead to unfair results. In such cases, the test fails to distinguish between the individual contributions of multiple tortfeasors. 2. All-or-Nothing Solution: The "but-for" test does not provide a solution for cases where the defendant’s actions resulted in the claimant losing a chance or opportunity. For example, if a defendant's negligence caused a claimant to lose the chance to win a tournament or secure a potential contract, this would not be adequately addressed by the "but-for" test. Deficiencies When Limiting Causation 1. Acceptance of All Events as Possible Causes: The "but-for" test treats all events and circumstances as potential causes, regardless of their legal relevance. It does not differentiate between causes that are legally significant and those that are not. This approach can lead to overly broad causation and fails to exclude irrelevant factors, leading back to the most basic and historical causes, such as Adam and Eve's sin in paradise. 2. Equating All Consequences: The "but-for" test fails to distinguish between consequences that are likely or unlikely, foreseeable or unforeseeable, and direct or remote. This can result in treating all consequences equally, regardless of their probability or relevance.  Example: Consider a situation where an electricity mains cable is negligently cut. The cable’s owner suffers damage, but it also causes a nearby tile factory to halt operations. As a result, the factory cannot deliver to a builder, and the builder cannot finish a house within the agreed timeline. Consequently, the customer has to stay in a hotel where they are seriously injured in a fire. Here, the severed mains cable can be considered a condition sine qua non for all of these subsequent damages. However, this raises the question: Is it fair to treat all these far-reaching consequences equally under the "but- for" test? Causation in Law: Policies for Establishing and Limiting Causation Establishing Causation in Law: Causation in law involves determining whether a causal connection can be established between the defendant’s fault/tortious conduct and the harm caused. This is a key question in establishing liability. Limiting Causation: Legal instruments are used to limit the scope of consequences once causation has been established. These instruments ensure that only relevant causes are considered in establishing liability. More Than One Possible Cause When damage is caused by more than one tortfeasor, the issue arises of determining how each should be held liable. If it is possible to identify which tortfeasor caused which damage or to what extent, each will be liable only for the damage they caused. However, in cases where this is unclear, a further legal framework or judgment may be required to apportion liability. Adequacy Principle: The principle of adequacy in tort law holds that the defendant is only required to compensate for harmful consequences that were reasonably expected, foreseeable, or not highly unlikely to occur from the perspective of an objective and optimal observer. In other words, the defendant is responsible for consequences that were a foreseeable result of their actions. Intent and Adequacy: Consequences directly intended by the wrongdoer are always considered adequately caused. If the harm is within the scope of the wrongdoer’s intention, causation is deemed sufficiently established. Legal Causation Theories CAUSATION IN LAW The scope of the rule asks whether the purpose of the violated rule was to protect the victim against the type of damage they have suffered. Legal causation involves examining the legal relationship between the defendant’s conduct and the harm, considering whether the defendant’s actions directly led to the harm. The UK: Causation in Law Foresight Initially, English law focused on holding individuals liable only for the direct consequences of their actions, as seen in the Re Polemis case. However, in The Wagon Mound (No. 1) (1961), the Privy Council slightly adjusted this position. The key question became whether a reasonable person could have foreseen the consequences of the act. The extent of the damage does not have to be fully foreseeable, but the general nature of the harm must be. Jolley v. Sutton Borough Council further refined this concept, establishing that while the nature of the harm must be foreseeable, the exact series of events leading up to it need not be. This means that even if the precise events weren’t predictable, the overall harm was still foreseeable. Legal Causation Theory In the UK, the theory of legal causation focuses on the remoteness of the damage. It involves analyzing how far the consequences can be linked to the original act and determining whether they are too remote to hold the defendant liable. France: Causation in Law Direct Cause Under French law, a causal connection must be certain and direct. The legal requirement is that the cause must be clear and direct. In practice, however, it is sometimes difficult to distinguish between direct and indirect causes, as well as between certain and uncertain causes. Nevertheless, the requirement typically does not place significant restrictions on the scope of liability, as causal links are often established. Legal Causation Theory in France French legal causation theory places less emphasis on conceptualization compared to other jurisdictions. The focus is on probability, foreseeability, and the scope of the rule to assess causation. Theories related to limiting causation are often applied based on the probability of damage occurring and the foreseeability of the outcome. The Thin Skull Rule Liability for Unforeseeable Outcomes The Thin Skull Rule holds that a defendant is liable for outcomes that may be unforeseeable, particularly in the case of personal injury. The principle is captured by the famous words of Lord Parker, who stated: "It has always been the law of this country that a tortfeasor takes his victim as he finds him." This means that if the claimant is especially vulnerable or predisposed to injury, the defendant is still liable for the full extent of the harm caused, even if the harm is more severe than would have been the case for a person of ordinary health. The Thin Skull Rule in Practice The Thin Skull Rule is important because it ensures that defendants are responsible for all consequences of their actions, even if those consequences are more severe due to the claimant's vulnerabilities. This reflects a more victim-centered approach to tort liability. Conclusion: How Far We Went Today The study of causation has covered both factual and legal causation, as well as the ways in which different jurisdictions—such as the UK, France, and Germany—approach the issue of causality in tort law. We have examined principles such as foreseeability, direct cause, and remoteness of damage, all of which shape the determination of liability. Learning Goals At the end of this session, you should be able to: 1. Identify the requirements for causation under the UK, German, and French legal systems. 2. Distinguish between factual causation and legal causation, and effectively apply the relevant theories. 3. Understand the similarities and differences between causation principles in the UK, German, and French legal systems. Week 11 A. Definition of "Damages" Germany: "Damages" refer to any detriment that has been caused to a person concerning the person's rights or legally protected interests (as defined under Section 823 BGB in the German Civil Code). UK: "Damages" are defined as pecuniary compensation that can be obtained by a successful claim in an action for a wrong. The compensation is typically in the form of a lump sum.  France: The term "dommage" is left for interpretation by the courts in France, and the courts decide how to interpret and apply damages in individual cases. B. Guiding Principle of Compensation Germany: The guiding principle is "Full Compensation" — the goal is to put the victim in the same position they would have been in had the injury not occurred (i.e., the status quo ante). UK: Similar to Germany, the principle of "Full Compensation" applies in the UK, aiming to return the victim to the position they were in before the tortious act (the status quo ante). France: France also adheres to the "Full Compensation" principle, but it is more expansive in scope, allowing for the compensation of any harm caused by an unlawful act, even in cases of emotional or non-economic harm. C. Pecuniary vs Non-Pecuniary Damages Germany: o Pecuniary: Pecuniary damages refer to actual present wealth that is less than what the victim would have had without the damaging event. These can be compensated either in money or in kind (e.g., through replacement or restoration). o Non-Pecuniary: Non-pecuniary damages refer to impairments of a person’s rights or legally protected interests that do not result in a reduction of wealth. Examples include emotional distress or pain and suffering. In Germany, monetary compensation for non-pecuniary losses is limited by Section 253(1) of the German Civil Code to cases involving pain and suffering, body injury, health, freedom, the right to sexual self-determination, and personality rights. UK: o Pecuniary: Pecuniary damages in the UK cover only those expenses that were reasonably incurred as a result of the harm. For instance, choosing a private doctor over the NHS might not be fully compensated, as only reasonable expenses are considered. o Non-Pecuniary: Non-pecuniary damages in the UK can include emotional distress, pain, suffering, and loss of amenity (e.g., the loss of enjoyment of life or a specific activity). France: o Pecuniary: Pecuniary damages in France are recoverable and are similar to the German  and UK systems, encompassing expenses or financial losses incurred due to the wrongful act. o Non-Pecuniary: In France, non-pecuniary damages are recoverable, especially in cases of personal injury. Recovery is also possible for damage to personality rights, the death of an animal, or loss/damage to property with emotional value, but not necessarily with market value. For example, the breaking of a grandmother’s necklace, which holds sentimental value, could be compensated even if it has no market value. Implied Consent Definition: Implied consent is consent that is not explicitly given, either orally or in writing, but is inferred by the circumstances or behavior of the parties involved. The courts will consider the reasonableness and proportionality of the situation to determine if implied consent exists. Sports: In the context of sports, there is implied consent to the physical contact that occurs within the ordinary conduct of a game or sport. This principle was established in the case R v Billinghurst (1978), where it was determined that players consent to physical contact as part of participating in the game. Voluntary Participation in Fights: In cases where an individual voluntarily participates in a fight, they may be deemed to have implied consent to battery. This was established in Lane v Holloway (1968), where the court held that participating in a fight implies consent to the physical contact that occurs. Express or Implied Consent Definition: Consent, whether expressed or implied, often involves the assumption of risk. In cases involving express or implied consent, the defendant must show that the claimant had full knowledge of both the nature and extent of the risk. Case Example: In Morris v Murray (1991), the defendant demonstrated that the claimant had full knowledge of the risks involved, which led to the claim being dismissed. Employees and Risk Acceptance: There is an interesting application of consent when it comes to employees, where the power imbalance means that employees can only be found liable if they voluntarily and knowingly accepted the risk. This principle was established in cases like Smith v Charles Baker & Sons (1891) and ICI Ltd v Shatwell (1965), which focused on situations where the employee knew of the inherent risks and chose to accept them. Necessity Definition: Necessity is a justification ground used in cases of trespass to persons, where the defendant's actions are considered necessary to protect themselves or others from harm. This defense is available in both German and French legal systems. Germany: o Section 228: In Germany, under Section 228 of the German Civil Code, necessity allows for damaging an object that is the source of danger. However, if the danger was provoked by the defendant’s actions (e.g., provoking a dog), they must compensate the owner of the damaged property. o Section 904: If an object that is not the source of danger is damaged out of necessity, the defendant must compensate the owner for the damage. France: In the French legal system, necessity is addressed under the Criminal Code (Article 122-7), which excludes liability based on fault if the act was necessary. However, the victim of the act must still be compensated. In practice, claims based on necessity are often denied due to proportionality concerns or because the danger was not considered actual or imminent. UK: In Leigh v Gladstone, a suffragette on hunger strike claimed damages for trespass when prison staff forcibly fed her to save her life. The defense argued that the force used was necessary to preserve her life, which was a justification under necessity. The court ruled that it was lawful for prison officials to intervene as they had a duty to preserve the health and life of individuals in their custody. Self-Defense Definition: Self-defense is a justification ground that allows for the use of force to protect oneself or others from harm. This defense is applicable in cases of trespass to persons, and it can be complete or partial depending on the circumstances. Germany: o Section 227: In Germany, self-defense is defined as the right to repel an attack on oneself or another person, as long as the attacked person agrees to the defense. The attack refers to any act that violates legally protected rights or interests. Children can also be considered attackers, and animals fall under Section 228 (necessity). o Proportionality: The principle of proportionality limits the use of self-defense in Germany. The response to the attack must be sufficient to avert the injury, but it must also be reasonable. The proportionality test is objective, meaning the court evaluates whether the level of force used was reasonable under the circumstances. France Derived from art. 122-5 of the Criminal Code.  When is it possible? If the force used is reasonable and proportionate to the threat. The purpose of the force is to repel the threat and must be no more substantial than necessary to do that (Cockroft v Smith, 1705). What if there was no real threat? Where the self-defender acted in a mistaken belief that they were being attacked, this mistaken belief must be honest and reasonable (Bici v Ministry of Defence, 2004). Self-Defense in the UK System Trespass to Persons o Contributory Fault The victim contributes to the damage. UK System: Defense used in cases of negligence (partial or total defense). Section 254: A specific expression of the general principle of good faith. It does not exclude the victim’s claim as a whole; in most cases, responsibility is proportionally distributed among the parties according to the individual circumstances. The specific circumstances of a case may, however, indicate a reduction of the victim’s claim to zero. Yet, the victim’s carelessness may be found insignificant if the wrongdoer has willfully caused the damage. Fault: It does not refer to the culpable and unlawful violation of a legal duty, since the victim is under no such duty to the tortfeasor. It rather refers to the victim’s careless behavior with respect to their own interests and belongings (culpable conduct against oneself). Germany - Contributory Fault Contributory fault can reduce or exclude the victim's right to compensation. Assessed in connection with causation, given that the claimant’s attitude is a concurrent cause of the harm suffered. This may result in joint liability or even extinction of the right to compensation (in cases where intent or provocation by the victim causes force majeure). The assessment of contributory fault is based on the same rules governing the defendant’s fault (arts. 1240 and 1241). France - Contributory Fault  When does contributory fault apply? When the claimant’s own fault has contributed to the damages suffered. Consequence: Damages payable are reduced in proportion to the claimant’s degree of fault. Fault from both parties: There must be fault on the part of both parties, i.e., defendant AND claimant (Jackson v Murray, 2015). Rationale Embedded in the broader duty of good faith, a person who acts wrongfully or illegally may be denied legal protection or remedies arising from their own wrongful conduct. ILLEGALITY: Germany Requirements: 1. Violation of Good Faith by the claimant's actions. 2. Connection to the claim: The claimant's wrongful actions should have a connection to the claim being pursued. 3. Consideration of Equity: Courts will assess the equities involved and whether denying the claim aligns with principles of justice and fairness. Rationale A person cannot rely on their own illegal or immoral actions as a basis for a legal claim. If the claimant's actions are considered morally reprehensible or illegal, they may be barred from seeking legal remedies for the harm they suffered. ILLEGALITY: France Requirements: 1. Illegality or Immorality of the claimant's actions. 2. Connection between claimant's wrongful conduct and the harm. 3. Public Policy Considerations: Courts will consider whether allowing a claim based on the claimant's own wrongdoing would violate public policy. ILLEGALITY: UK System Rationale: No right of action arises from a disgraceful or base cause. Otherwise, it would be "an affront to the public conscience" and might encourage others in illegal activities. The effect of this defense is to completely absolve the defendant of liability for damage. Example: Vellino v Chief Constable, 2001. Joint Criminal Enterprise: It is foreseeable that the parties may be subject to unusual/increased risks of harm due to their criminal  activities. If the risk materializes and is caused by the criminal act, even if it results from the negligent or intentional act of one of the parties (e.g., Joyce v O’Brien). Negligence: Exturpicausanon oritur actio. ILLEGALITY: UK System Requirements: 1. Illegality or Immorality (of the claimant's action). This can include engaging in criminal activities, fraud, or other wrongful conduct. 2. Causal Connection between the claimant's illegal or immoral conduct and the harms suffered. 3. Public Policy Considerations: Courts will assess whether allowing the claim would be contrary to the public interest or undermine the legal system's integrity. 485. Conclusion: How far we went today 49. How much do you know? LEARNING GOALS 1. Understand the meaning and purpose of remedies and defenses. 2. Identify what kind of damages are recoverable and how. 3. Identify and apply the most common defenses in the UK, DE, and FR systems. 4. Understand the differences and similarities between remedies and damages under the UK, DE, and FR systems. Why Contract Law? Contract law provides the aggrieved party with compensation when an inter partes obligation (promise) has been breached. Compensation and deterrence. Limitation of Liability: INTERPLAY BETWEEN CONTRACT AND TORT LAW Contract law often allows parties to limit or exclude liability through agreed terms. Tort law steps in to ensure public safety by overriding unfair exclusions. Example: A supplier cannot exclude liability for gross negligence in tort, even if their contract attempts to do so. Imagine you hire a builder to construct a new patio. If the patio collapses due to substandard materials, you might sue: In contract law: For failing to deliver the agreed quality.  In tort law: The builder if the collapse injures you, your family, or guests, as the builder owes a general duty of care to avoid harm. Tort and contract law ensure comprehensive protection for the economic and physical consequences of wrongful actions. Key Theories: GERMANY: Concurrent Liability: o Primacy of contract law and the subsidiary role of tort law vs. independence of both regimes, allowing concurrent liability. UK: Concurrent Liability: o To return the victim to its status quo ante. FRANCE: Non-cumul raison d’être: o Party autonomy should prevail. CONCLUDING REMARKS “The applicable contracting party is liable to you only for direct damages caused by the actions of the contracting party and up to the amount of the fees paid in the last 12 months prior to the damaging event. We are not liable for any third parties such as notaries or other experts retained for the service delivery with your consent. Where a limitation of liability is not permitted by applicable law – such as for willful misconduct or gross negligence – the liability is unlimited.” Example: An example of a limitation of liability clause in a contract, taking tort law into account. See, e.g., section 309 BGB or the Unfair Contract Terms Act. Factors to Consider WHEN TO PURSUE WHICH AVENUE IN CONCURRENT CASES: 1. Time limit o Contract: Claim starts when the breach occurs (e.g., solicitor gives wrongful advice). o Tort: Claim starts when the damage is suffered (e.g., when the advice causes financial loss). 2. Scope of Duties o Contract: Duties are defined by the contract terms (specific to the agreement). o Tort: Duties are based on general obligations (e.g., duty of care to avoid harm). 3. Remoteness (Limits on Damages) o Contract: Damages must have been foreseeable to both parties when the contract was formed (Hadley v Baxendale).  Tort: Damages must be reasonably foreseeable at the time of the harm (Wagon o Mound case). 4. Damages Available o Contract: See contract. o Tort: A wider range of damages, including: ▪ Personal injury ▪ Property damage ▪ Immaterial losses (e.g., pain and suffering) Week 12 An Introduction to Property Law (1) 1. What is Property Law? Property Law is the law that deals with entitlements (rights) to objects (property). Property Law is the law that “concerns rights that a person has against a considerable group of other persons concerning an object.” (S. van Erp, Cases, Materials and Text on Property Law, p. 39) An Introduction to Property Law: Objects of Property Law (2) An Introduction to Property Law: Objects of Property Law (3) An Introduction to Property Law (4) 1. Objects of Property Law Tangible (corporeal) objects a) Movables/goods b) Immovable/land Intangible (incorporeal) objects o e.g., Intellectual property rights ▪ Technical inventions ▪ Aesthetic creations ▪ Distinctive signs Property Law in France, Germany, and England & Wales (1) Civil law (civil code basis) and Common law traditions (case law basis) o Civil law: France & Germany  ▪ France: ▪ Property law: Part of patrimonial law ▪ French Civil Code (1804) ▪ Focus on land ▪ Historical development: From the feudal regime to the French Civil Code Property Law in France, Germany, and England & Wales (2) France: o Concept of ownership: ▪ Article 544 C. civ.: “Ownership is the right to enjoy and dispose of objects in the most complete manner, provided they are not used in a way prohibited by statutes or regulations.” o Types of property rights (limited enumeration): ▪ Article 543 C. civ.: “[...] on an object one may have a right of ownership, a mere right of enjoyment or only a right of servitude.” Property Law in France, Germany, and England & Wales (3) Germany: o German Civil Code - BGB (1900) o Based on Roman Law o Content similar to French law o Right of ownership (para. 903) Property Law in France, Germany, and England & Wales (4) Common law: England & Wales o No Civil Codes o Amalgam of statutory and judge-made rules o Distinction between real property (land) and personal property (things) o Be careful: ‘Personal property’ is different from ‘personal right’ Example: A PUBLIC ROAD vs. PRIVATE ROAD OWNED BY A How can B have access to the public road? 1. Property right: e.g., servitude (limited property right) o If A sells to C: C has to continue to allow B to use his/her private road. 2. Personal right: Agreement between A and B  o If A sells to C: C does not have to continue to allow B to use his/her private road. The agreement is only between A and B. Nature of Property Rights: Property Rights vs. Personal Rights Principle of Numerus Clausus and Transparency Property law and law of obligations Two tests used to qualify a right as a property right: a) Principle of Numerus Clausus b) Principle of Transparency Principle of Numerus Clausus What is the principle of numerus clausus? o Two aspects: 1. Number and content of property rights 2. The way in which these rights can be created, transferred, or destroyed Reasons behind the principle of numerus clausus o Property law is mandatory law (e.g., lex rei sitae rule) o Limitation on parties’ autonomy and authority to create new property rights Principle of Numerus Clausus - Examples Examples of types of property rights recognized in civil law systems (see: lecture 2): o Right of ownership o Right of real servitude o Right of personal servitude: usufruct and use and habitation o Right of superficies o Right of emphyteusis REMEMBER: It is a closed list of property rights, which has its basis in Roman Law and is defined in legislation (only on an exceptional basis by case law) Principle of Transparency Two aspects: 1. Specificity 2. Publicity 3. Possession 4. Registration Policy Ground Rules of Property Law Ground rules of property law I. Nemo plus iuris rule II. Prior tempore, potior iure rule III. Limited property rights have priority over fuller rights (e.g., usufruct and right of ownership) IV. Special protection (e.g., revindication) Questions for Individual Study & Preparations for the Workshop What is property law? How has property law in France, Germany, and England & Wales been developed? What is the principle of numerus clausus? What is the principle of transparency? What distinguishes property rights from personal rights? What are the ground rules of property law? Protection of Possession: Common Law Mainly by tort law (property torts). Primary remedy = attribution of damages. Damages can be awarded even if there is no real damage to the property but the mere infringement of a property right. Remedies follow the distinction between land and goods. Two Types of Interference 1. Dispossession of the holder of a property right and/or the possessor 2. Disturbance of the enjoyment of the possession Dispossession & Disturbance: Examples Possession vs Ownership: France (1) POSSESSION: o Art 2255 C. civ = definition & role of possession o Concerns corporeal objects and claims incorporated in corporeal title. o Possession extends to movable and immovable property but with quite different effects.  o Regulation of the protection of possession (Arts 2278 C. civ). OWNERSHIP: o Article 544 C. civ: “Ownership is the right to enjoy and dispose of objects in the most complete manner, provided they are not used in a way prohibited by statutes or regulations.” o Protection: ▪ Vindication ▪ Injunction Possession - Definition Article 2255 C. civ: Possession is the detention or enjoyment of a thing or of a right that we hold or that we exercise by ourselves, or by another who holds it or who exercises it in our name. Definition and Types of Possession: France (2) Possession requires 2 factors: o Actual control of the object (“corpus”) o The will to hold the object as an owner (“animus”) Possession terminates when animus or corpus is lost. Important: If only control (without will) = detention. o Detention is different from possession (detentor cannot acquire ownership by acquisitive prescription). o Article 2266 C. civ: ▪ Art 2256 C. civ: Always presumption to possess for oneself and in the capacity of an owner. Possession, Ownership, Detention: France (Examples) I possess the keys to my parents’ house (and the house), I control the object and have the will to hold it as owner. I am the owner of the house and I have the right to enjoy and dispose of it in the most complete manner. I am a farm tenant: I hold an object for another and I am an intermediary of the possessor (detentor = no animus). Protection of Possession: France Protection of possession of a movable object: o Article 2276 C. civ: (la possession vaut titre – ‘possession equals title’) = as an owner.  Protection of possession of an immovable: o Article 2278 C. civ: (possession is protected regardless of its legal basis). If the possessor is also an owner, he/she can choose between possessory protection and vindication of the object. Acquisitive prescription of movables (Art. 2276 and 2277 C. civ.) – the balance of interests: o Protection of owner (Art. 2276 C. civ.) o Protection of possessor in good faith (Art. 2277 C. civ.) Acquisitive Prescription of Movables (Art. 2276 and 2277 C.civ.) – The Balance of Interests Protection of owner (Art. 2276 C. civ.): o Owner of a lost or stolen object o Within 3 years from its loss or theft Protection of possessor in good faith (Art. 2277 C. civ.): o Possessor of a lost or stolen thing bought it at a fair/market/public sale/from a merchant o Owner = Reimbursement for possessor The Role of Possession in Acquisition of Ownership: Acquisition by Prescription Note: You will study this in lecture 4. It is now for you to better understand the role of possession. France: o Movables (Art. 2276 C. civ; continuous proprietary possession, 3 years, good faith) o Immovable goods (Art. 2272 C. civ; continuous proprietary possession, 30 years, or 10 years in good faith) Germany: o Movables (§937 BGB; proprietary possession, 10 years, + good faith) o Immovable goods (§900 BGB; plot of land in proprietary possession, person registered as the owner in the Land Register, 30 years) Common Law: o Adverse possession (holding of land that is not his, 10 years for registered land and 12 years for unregistered land) Protection of Possession: England and Wales The remedies of specific recovery that resemble the remedies available to owners in civil law countries: o Specific recovery of (the possession of) land. o Specific recovery of (the possession of) goods. o Injunction. Protection of Possession of Land: England and Wales Dispossession: o Holder of a title to land (exclusive possession) has the right to recover possession from a person who entered the land without his/her consent: ▪ (1) Self-help or ▪ (2) Obtain order from the court that possession of the land be returned to him/her. o Recovery of possession = roots in feudal law. Other interference: o Trespass to land: Torts of trespass to land ▪ Defendant has entered the land without the consent of the title-holder or actual possessor; ▪ Damages + injunction to prevent future interference. o Nuisance: Indirect interference, when pollutants (smoke, wastewater, smells, noises) cause a disturbance to the use and enjoyment of a land. ▪ Remedies: Damages, injunction, and very limited form of self-help. The Fundamental Difference Between Civil Law and Common Law Systems Civil law systems: o Distinguish between ownership and possession. o Provide for specific actions for the protection of possession and ownership. o Specific recovery & injunctive relief with regard to dispossession and disturbance of possession. o Also, tort law instruments. Common law systems: o No notion of ownership. o The protection of property rights = protection of possession. o Protection by means of tort law. Week 13 The Right of Ownership (8) Doctrine of abuse of rights (in French, abus de droit) used in jurisprudence (e.g., relations between neighbors): o If a party acts with the sole intent of causing a nuisance to his neighbor, this will constitute an abuse of his right of ownership. o Burden of proof: Effects of the act and intention of the owner to harm or at least cause nuisance. o Germany: §226 BGB Example  Cour de Cassation, 3 August 1915, Coquerel v. Clement-Bayard: o “The power of the owner and therefore the most comprehensive nature of the right of ownership do not go as far as to allow the owner to use his ownership purely to cause a nuisance to his neighbour.” o (Akkermans, p. 220) The Right of Ownership (10) Co-ownership: o E.g., Community in Marriage. o A share in the right of ownership which is jointly held. o Remember: Ownership as a unitary concept. Real Servitude (1) What is a real servitude? o A property right granting a neighbor access to the land of an owner. o Roman law. o A limited property right over an immovable. How does a real servitude come into existence? o a. Agreement o b. Law: Legal servitude only in France, in Germany not constructed as a limited property right (e.g., right of passage, §917 BGB). Real Servitude (2) Main legal provisions in France and Germany: o Article 637 French Code Civil: ▪ “A right of servitude is a charge on an immovable object for the use and utility of an immovable object of another owner.” o Article 686 French Code Civil: ▪ “Owners may create on their land or in favour of their land those servitudes as they seem fit, provided that the duties the servitude creates are not imposed on a person, nor in favour of a person, but solely on a piece of land and on behalf of a piece of land, and provided that these duties are not contrary to public policy. The use and the extent of the servitude are established by the title that creates it (...).” o §1018 BGB: ▪ “A piece of land can, for the benefit of an owner of another piece of land, be burdened in such a way in which the owner may use his piece of land for specific purposes or in which on the piece of land certain actions cannot be taken or a certain right which follows from the burdened piece of land against the other piece of land cannot be exercised.” Real Servitude (3) Features: o a. Two owners of two pieces of land o b. Two pieces of land - dominant and servient land - near to each other. o c. Content of the right of real servitude: ▪ The owner of the servient land has to tolerate or not do something. ▪ No positive duty for the owner of the servient land (with certain exceptions). o d. Benefit for the dominant land (e.g., monetary value or aesthetic value), not just for the owner. o No total restriction of the powers of the servient land’s owner. Real Servitude (4) Features: o a. Two owners of two pieces of land o b. Two pieces of land, dominant and servient land, near to each other. o c. Content of the right of real servitude: ▪ The owner of the servient land has to tolerate or not do something. ▪ No positive duty for the owner of the servient land with two exceptions (BGH, 25 February 1959). o d. Benefit for the dominant land (e.g., monetary value or aesthetic value), not just for the owner. o No total restriction of the powers of the servient land’s owner. Real Servitude (5) Example Aqueduct: o Owner A (Servient land) o Owner B (Dominant land) Personal Servitude – Usufruct (4) Legislative Framework in France and Germany o France (Articles 578–624): ▪ Article 578 French Code Civil: “The right of usufruct is the right to use and enjoy an object of another in the same way as an owner himself, but on condition that the substance of the object is preserved.” Personal Servitude – Usufruct (5)  Germany (Sections 1030-1084 BGB): o Section 1030 BGB: ▪ "(1) An object can be burdened in such a way, that the person for whose benefit this burdening occurs is entitled to the use of the object and to take the fruits (Usufruct). ▪ (2) The usufruct can be limited by the exclusion of certain powers of use.” Usufruct Article 578 French Civil Code: o “The right of usufruct is the right to use and enjoy an object of another in the same way as an owner himself, but on condition that the substance of the object is preserved.” Article 617 French Civil Code: o "A right of usufruct is extinguished: ▪ By the death of the usufructuary; ▪ By the expiry of the time for which it was granted; (...)." Usufruct and Principle of Numerus Clausus Example: Association of Owners v. Spouses Olive and others (Cour de Cassation Civ 3e, 18 January 1984) o "They reserved in perpetuity the right to post on one of the walls of the immovable" (Akkermans, p.68). o "A perpetual right cannot take the form of a right of usufruct, which by its nature can only exist for the duration of the life of the right holder (usufructuary)" (Akkermans, p.69). Personal Servitude – Usufruct (6) Rights of the holder of the right of usufruct o Use and enjoy (take the fruits) an object of another: ▪ France: See Articles 578, 582, 583, 584 ▪ The usufruct can also be assigned to a third party: Article 595 o Germany: ▪ §1030, §1036(1) BGB ▪ The usufruct cannot be assigned to a third party: §1059 BGB Personal Servitude – Usufruct (7) Obligations of the holder of the right of usufruct  o a. Take care of the object (standard of the “good usufructuary”): ▪ France: Article 601 ▪ Germany: §1036(2) BGB o b. Inventory of the assets in the usufruct: ▪ Duty in French law (Article 600) and an option in German law (§1034 BGB) o c. Pay the costs of repair and maintenance of the assets: ▪ France: Article 605 ▪ Germany: §1045, §1047, §1048(2) BGB o d. Preservation of object from substantial changes (the economic purpose of the assets): ▪ France: Article 578 ▪ Germany: §1036(2) BGB and §1037 Personal Servitude – Usufruct (8) Example: SARL Le Grand Verger v. Widow Cozon and others o “A usufructuary may use the object under usufruct, but must take care of the object as well as retain the same use of the object” (Akkermans, p.258). o “A holder of a usufruct has no power to change the use of the building from habitation to a commercial use” (Akkermans, p.258). o Important: The usufructuary can rent the house, but he/she cannot change the use of the building. o Article 578 French Civil Code: ▪ “The right of usufruct is the right to use and enjoy an object of another in the same way as an owner himself, but on condition that the substance of the object is preserved.” Personal Servitude – Right of Use and Right of Habitation (1) Roman origin Legislative framework o France: Articles 625–636 Civil Code Right to use: Both immovables and movables Right to habitation: Only immovables Personal Servitude – Right of Use and Right of Habitation (2) Content of those rights is more restricted compared to the right of usufruct o Right to use: No right to take fruits, only when needed for private purposes (see Article 630 Civil Code); not transferable. o Right to habitation: Use a building to live in with family; not transferable. Personal Servitude – Right of Use and Right of Habitation (3)  Strictly connected to the person to whom they have been granted. Both right of use and habitation cannot be assigned nor leased (see Articles 631 and 634 Civil Code). o Example: The person holding the right of habitation cannot rent the house. Person holding the rights of use and habitation: Same obligations as the usufructuary (e.g., see Articles 626, 627 Civil Code). Personal Servitude – Right of Use and Right of Habitation (4) Example: Cour de Cassation, Grenot v. Richardot o “The grazing right constituted a right to use, and this right was a property right. However, such a right is strictly connected to the person to whom it was granted, and thus cannot be transferred” (Akkermans, p.263). Right of Superficies (1) Definition and context: o Right of superficies allows the separation of ownership of buildings or construction from the ownership of land. Right of Superficies (2) Roman law origin and legislative framework o France: Article 552 and jurisprudence of the Cour de Cassation o Germany: **§1 Regulation on Superficies Separation of the ownership of a building or construction from the ownership of land. o Only immovables are involved in the right of superficies. o Superficies solo cedit: General rule, but through an agreement between parties, the ownership of the building can be separated from the ownership of the land. o Important: Derogation from the principle of accession (see Lecture 5). Right of Superficies (3) Two common situations: 1. A grants the right of superficies to B in order to allow B to build a construction (ius ad aedificandum). 2. A builds a construction on his property and he/she grants the right of superficies to B (ius in aedificato). Why a right of superficies? o Advantages for the owner of the land o Advantages for the holder of the right of superficies Right of Superficies (4) Right-holder of the right of superficies: Ownership of a building, construction, or plants until the right of superficies ends. Owner of the land: Becomes the owner of the building when the right of superficies ends. Content of the right of superficies: o BGH, 22 April 1994: “Content of a right of superficies may be a general right to construct buildings on a piece of land Week 14 Land – Concept of Estates No concept of ownership in common law (even though lawyers may use this term, it is imprecise). Land was held by a lord (or the king) in return for services = land held by a lord for different periods, called estates. Feudal ladder: o King (allocating lands) o Lord (right to hold land in exchange for services to the king) o Tenants (possessor against services/payment to the lord) o Seisin of the land. No Concept of Ownership Means... The only absolute owner is the Crown. Ordinary landowners hold from the Crown. Tenure = freehold. (Legal) Estates in Land Estate → Rights a person has over a plot of land. o (1) Fee simple absolute in possession (fee simple estate). o (2) A term of years absolute (leasehold estate). Land – Possession as a Basis of the Protection Against Dispossession When dispossession occurs, the dispossessed only needs to prove prior possession.  No need to prove “ownership”. Here, we talk about “title”. Title = entitlement to exclusive possession. Entitlement → fact of possession. o Possible transmission of the title + binding to third parties. o Case Law: Rosenberg v Cook (Court of Appeal, 19 December 1881): The mere taking of possession of land gives the possessor a fee simple estate over that land. “Fee simple” = absolute title to land (like ownership), and it is transmissible to the heirs. Estates in Land In the past, there were other types of estates, such as life estate, entail, etc. Example: Lease of land = type of estate (since 1925), even though it was never a feudal concept. o Lease of land is a property right in common law. For various (tax) reasons, today: o Fee simple absolute in possession – the most popular and, in fact, the only estate of any significance today. o Temporary interests in land are also available (e.g., lease of land). Fee Simple Estate Content of the right: o Case Law: ▪ Lord Bernstein v Skyviews (High Court, 10 February 1977): The holder of a fee simple title to land does not have a right to sue for trespass against those who fly over his land but do not interfere with his use of the land. ▪ Anchor Brewhouse v Berkley House (High Court, 1 January 1987): The holder of a fee simple estate has the right to an injunction to restrain cranes on neighboring land from invading his airspace. Land – Possession by Several Persons Fee simple estate (and other property rights) may be held by several persons (like co- owners in civil law). Even personal rights like the payment of debt or rent can be co-owned. o Possible to say “co-ownership” here. Two forms of “co-ownership” (here think about co-possession): o Joint tenancy: No individual share, together they own it all + the right of survivorship. o Tenancy in common: Distinct shares for each tenant but undivided through partition + no right of survivorship. Land – Leases (1) Leases give the holder a right to exclusive possession of land. More suitable for commercial holding of land. Appeared after the feudal structure. Lease and tenancy = interchangeable. Grant of a right of exclusive possession for a “term” (period with an end). The rights (interests) of the lessee can be assigned. The lessor/landlord can assign his interest (reversion), and the right of the lessee will bind the successor in title. The burden of the lease goes with the land. “Covenants” (commitments = promises between lessor and lessee) can also be binding upon successors in title of the lessor and the lessee. End of the lease: o Expiration of the term. o By the landlord if there is a breach of certain obligations by the tenant. Process of forfeiture. Profits A Prendre A right to take something from the land of another. Different from easement: o Easement = right to do something on the land of another. Examples: o Minerals, crops, wild animals living on it (agrarian rather than industrial). o Right to graze animals (pasture), right to fish (piscary), right to take game, right to cut turf (turbary), right to take timber (estovers), right to take minerals. No need for a dominant tenement. Land: Licenses Over Land A permission: Any use of land that occurs with the permission of a person with a right to exclusive possession of that land but is not pursuant to a recognized property right. Can be granted through: o A contract with the landlord or o For a guest staying in a hotel. Goods: From Title to Security Rights Over Goods Very few property rights over goods. Numerus clausus as well, but not clearly listed in legislation and case law. The law of property rights over goods is impoverished in comparison with land. “Property”: Often confusion between the property right in respect of a thing and the thing itself.  Two important considerations: o Feudal system never applied to goods. There is no doctrine of estate for goods. o No concept of ownership over goods in English law. Goods – No Concept of Ownership but Title Chattel = movable good. Re Hill (Court of Appeal, 19 February 1897): A gift of a chattel for life passes the property at law (impossible to recover possession, example of a wedding ring cannot be repossessed). No concept of ownership → possession (a proprietary right to possession) ≠ personal right to possession (based on a contract). Judges evaluate if one person’s title is better than another's over a good. “Title” = also called “property” or “the general property in the goods” (sometimes by abuse of language, referred to as “ownership”). o “A title” = a right to possession; exclusive possession of the goods (its content). A person with title over goods can allocate a license to others to use the thing (gratuitously or against reward), or can destroy the thing. Goods – No Concept of Ownership but Title Chattel = movable good. Court of Appeal (19/2/1897) Re Hill: A gift of a chattel for life passes the property at law (impossible to recover possession if there is no trust and no term, example of a wedding ring cannot be repossessed). o Mr. Hill asks for the recovery of possession of a diamond necklace and earrings from his stepmother. o Mr. Hill’s claim: His grandmother stated in a letter to her solicitor that she received the necklace and earrings upon marriage for life, and they were to be left as heirlooms. o Held: The terms of the gift did not give rise to a trust, meaning the jewelry passed to the grandmother completely and therefore passed to the stepmother. o Judgement: Common law does not recognize estate in a chattel. A gift of a chattel for life, accompanied by delivery, passes the property at law. Goods – No Estate in a Chattel Except... Goods – Limited Doctrine of Life Estate in Testamentary Dispositions Re Swan Witham and Swan (High Court, 23 February 1915): The first possessor is a trustee for the remainderman. Goods – Limited Doctrine of Life Estate in Testamentary Dispositions High Court (23/2/1915) Re Swan Witham and Swan: o Julia Swan receives diamond jewelry and a Brussels lace for her life, with the remainder going to her brother, Edward Swan. o Julia altered or lost a significant amount of the jewelry. o Julia's family, after her passing, argued that this is a tort claim. o Held: The first taker does not acquire the whole legal interest. The amount equal to the value of the lost or altered items should be awarded to Edward. Week 15 Accession What is an essential component (attachment)? o §93: “Components of a thing which cannot be separated without damaging or changing the nature of one of them (components) cannot be the object of separate rights.” o Therefore, two criteria: a. Without damaging b. Substantial change in nature: economic usefulness of the main object and the attachment after their separation. o If an object is an essential component, it is not to be treated independently, and no separate right of ownership exists. o CASE LAW – 3rd Criteria: If removal is very costly, accession is considered to have happened. Accession of Movables to Land §94: o (1) Essential components of the land include objects which are firmly attached to the land, especially buildings, and the products of the land as long as they are united with the land. ▪ Example: Seeds become an essential component of the land when they are sowed, and plants do so when they are planted. o (2) Essential components of a building include objects inserted for the construction of the building. ▪ Examples: Roof tiles (components of the house and hence components of the land), central heating, and shower cabins (criterion of completeness of the building or spatial relationship). Is a Quick Steam Generator an Essential Component in a Factory?  According to §93 and §94: o No, because it can be removed, separated, and reused elsewhere without being damaged or changing its nature. o It was not constructed pursuant to insertion for the building. §94(2) o OLG Oldenburg, 4 July 1962 Is a Heating Boiler an Essential Component of a School Building? According to §93 and §94: o Yes, because according to common opinion, a school is not finished without a heating system, considering the climate in Europe (criterion of completeness - §94(2) BGB). o 27 September 1978 Accession of Movables to Land – Case Law Cases in which accession to land is barred: o §95: ▪ (1) Objects attached to the land only for a temporary purpose do not belong to the components of the land. The same applies to a building or other construction attached to the land by the holder of a right over another’s land in the exercise of this right. ▪ (2) Objects inserted into a building only for a temporary purpose do not belong to the components of the building. Intention of the Parties (e.g., from a lease contract) BGH, 21 December 1956: “Things attached to the land for a temporary purpose do not pass to the landowner when the temporary purpose lapses.” o An agreement between the owner of the thing attached and the owner of the land is needed. o Example: Wooden house placed by a tenant. Accession in French Law Article 551: “Everything which is united with or incorporated into the thing belongs to the owner, (...).” Requirement for accession: o Incorporation. Two criteria for accession to immovable property: a. Physical: If the removal would cause damage. In other words, the “attachment (...) cannot be removed without causing damage to the thing itself or to the immovable  property.” b. Incompleteness: If the removal would make a building incomplete, even if removal does not cause damage. o Example: Roof tiles, keys, doors. Commingling German Law: o Confusio (inseparable thing – co-ownership); commixtio (still separate objects – pile of steel plates). o Currently, no distinction in the German Civil Code. o §948: ▪ (1) If movable things are inseparably intermixed or mingled with each other, the provisions of §947 apply with the necessary modifications. ▪ (2) The situation is equivalent to inseparability if the separation of the intermixed or mingled things would entail disproportionately high costs. o Co-ownership of the entire bulk. Commingling – English Law “Where B wrongfully mixes the goods of A with goods of his own, which are substantially of the same nature and quality, and they cannot in practice be separated, the mixture is held in common.” o (Akkermans, p. 675-676) Indian Oil Corporation Ltd v Greenstone Shippings S4 (Panama), High Court, Queen’s Bench Division, 18 March 1987: o “Commingling leads to co-ownership.” o (Akkermans, p. 676) 8. Exceptions to the Consensual System French Law – Case Law Generic Goods "The sale on approval passed ownership of the elected objects at the moment of approval." (Case on generic gems) The approval of generic objects made them specific. o Case Reference: Cour de Cassation, 12/04/2005, Reza Gem v. Lafont "Ownership of movables passes when the contract is made and the objects have been individualized." o Case Reference: Cour de Cassation, 19/02/2002, Balat et Lauzeral c. Pepinieres Boissay et Vinceneux Future Goods  Ownership and risk pass when the object is finished, delivered by the seller, and accepted by the buyer. o Case Reference: Cour de Cassation, 01/08/1950, Coder v. Ossude o "The sale of a future object passes ownership when the object is in a deliverable state." 9. Transfer of Land Germany BGB: §§ 873 and 925 o Acts Required: 1. Real Agreement: Agreement between parties, declared by both parties in front of a public notarial agent, with binding effect upon notarial authentication and both parties' signatures. 2. Registration: The property right must be registered in the land register (constitutive effect). o Constitutive Effect of Registration: After registration, the rights pass to the acquirer. Public faith principle: There is a legal presumption of the accuracy of the Land Register. Destruction of Property Right over Land: o § 875: Applies when a property right is destroyed. o § 928: Abandonment of ownership of land. England There are two systems of transferring titles to land: 1. Unregistered System (Deed Transfer) o A deed is a written document signed and attested by witnesses. o The vendor must be verified as having the power to sell. This system is in decline in favor of land registration. 2. Registered System (Land Registration Act 2002) o Transfer occurs through registration in the land register. o Formal Requirements for Sale Contracts: ▪ Must be made in writing. ▪ Incorporate all terms agreed upon by the parties. ▪ Signed by or on behalf of the parties. ▪ Electronic contracts are acceptable (since 2002). France  Consensual System: Ownership is transferred with the contractual agreement, without specific rules for land transfer. Land Registration: o The register has a publicity function, promoting transparency, but does not guarantee ownership. o No constitutive effect: The register does not confirm the legal entitlement to the land. o Exception: In Alsace-Lorraine, the system is similar to the German model. 10. Destruction of Property Rights Destruction of the Object Under French law, the destruction of the object (res) can lead to the loss of property rights. Examples include: Specificatio: A new item created from an existing one. Commingling: Mixing goods, resulting in loss of individual rights. French Law Examples: 1. Article 617 of the Civil Code: "A right of usufruct is destroyed by the total loss of the object on which the usufruct was created." 2. Article 703 of the Civil Code: "Rights of servitude are destroyed when the objects can no longer be used." Abandonment of Property Rights General Introduction: Abandonment refers to voluntarily giving up ownership or other property rights, and it is considered an act of will. Effects of Abandonment: Typically leads to objects becoming res nullius (without an owner). French Law: Article 539, 713, and 714 of the Civil Code: o Abandoned immovable objects may transfer ownership to the French state. o Example: Cour de Cassation, Civ 3e, 18 June 2003 - "Abandonment of ownership of immovable objects leads to a transfer of ownership to the French State." German Law: Movable Objects: § 959 BGB - A movable object becomes abandoned when the owner relinquishes possession with the intent to abandon it. Immovable Objects: § 928 BGB - Ownership abandonment must be declared to the land register. The German state acquires the ownership rights when the state decides to take ownership (different from France, where ownership is transferred automatically).