Law of Things Lectures (1) PDF

Introduction to Civil Law: Property Law (Law of Things). Lectures 4-6 Dr. Aleksandrs Fillers, LL.M Associate Professor  Law of Succession I  When a natural person dies all rights/obligations pass to heirs  Unless they are personal (e...

Introduction to Civil Law: Property Law (Law of Things). Lectures 4-6 Dr. Aleksandrs Fillers, LL.M Associate Professor  Law of Succession I  When a natural person dies all rights/obligations pass to heirs  Unless they are personal (e.g., labor, rights/rights to pension, etc.)  2 principal methods: testamentary/intestate  Law of Succession II  Testamentary:  A person leaves a will:  Unilateral act that the testator can unilaterally change/terminate  In the will: Decides that one or more people get all patrimony or its share or decides to give legacies: specific objects given to specific person (legatee): e.g., car, piece of land, jewelry, etc.  Different traditions on the validity of wills  In the Continent: some of the intestate heirs are protected as “forced heirs”: they get some monetary equivalent of their ”normal” share even if in the will their share diminished or removed altogether: usually such “forced heirs” are children/spouse of the passed away person  Law of Succession III  Intestate succession:  No will; the law itself decides who will succeed  Usually spouse, children, possibly parents  Different hierarchies of succession in different states  Some might always prefer children and spouse and allow further relatives to inherit only in case there are no children/spouse  In some countries only close relatives may inherit; in other the circle is very wide  Plan: Sessions 4-6: Property Law (Law of Things)  1) Objects in Private Law  2) Ownership  3) Other in rem rights  4) Protection of Possession  Law of Things (Continental approach)  Law of Obligations: in personam rights vs  Law of Things (Property Law): in rem rights Law of obligations establishes claims between persons to do or not to do something Law of things (property): rights regarding the tangible things  Objects of Private Law I  Tangible vs intangible things  Tangible: Land, objects around you: computers, cars, books, cows, dogs, cats….  Humans are not things; parts of body might be;  Air is not - unless it is in an isolated state  Intangible things  Rights (arising from the law of obligations) and rights related to property, intellectual property ---- > these things do not exist in “material” world  Movable/immovable  Computer, cow, book – movable  Real estate (including buildings) – immovable  In most legal systems: building is part of the land  Objects of Private Law II  Divisible/indivisible:  Divisible: land, fungible things (rice, liquids)  The sum of the parts of these objects has similar value to the whole and it does not affect the functionality of these objects  Indivisible: animals, book, computer, cars, etc.  Certainly, in a contract parties could agree that they sell/buy only an engine of the car or screen of the computer, etc. : but at that point the value of the thing will be significantly diminished, and they will lose most of their functionality.  Objects of Private Law III  Fungible/non-fungible things  Wine, money: counted by weight, size and quantity: thus, fungible  A specific book, a specific dog, specific piece of clothing, etc: not counted by weight, size, quantity, thus non-fungible  These objects have individual characteristics  Objects of Private Law IV  Consumable/non-consumable:  Money, food, drinks, medicine: destroyed while being used (consumables)  Clothes, cars, immovables, ships, planes… - not destroyed while used (non-consumables) Introduction to Civil Law: Ownership and other in rem rights Dr. Aleksandrs Fillers, LL.M Associate Professor  What is Ownership?  The most complete set of rights over an object (owner – master of the thing)  CL Art. 927: right to use, possess, obtain benefits, dispose of the thing and retrieve it from third parties  DCFR VIII.-1:202: refers to enjoy, modify, destroy dispose and recover the property. Limitations to ownership rights are usually established by public law or an agreement (other in rem rights are such limitations)  Protection of the owner I  1) Owner can reclaim property from others (rei vindicatio);  An owner can reclaim things from others who possess them without his consent (see, DCFR Art. VIII. – 6:101(1))  CL Art. 1044: Owners may bring an ownership action against any person who is illegally retaining their property; the objective thereof is declaration of ownership rights and in connection therewith, granting of possession.  As it follows from Art. 1045: “possession” here includes any physical control over the thing (including holding by a lessee, storer, etc.)  Protection of the owner II  2) Owner can ask others to not disturb their property (actio negatoria)  CL Art. 1039: Owners may prohibit all others from affecting their property, as well as from using or exploiting it, even if no losses are caused the owners themselves thereby. --- > terminology is not precise, but the claim follows from against disturbances follows from this provision  DCFR Art. VIII-6:101(2): “Where another person interferes with the owner’s rights as owner or where such interference is imminent, the owner is entitled to a declaration of ownership and to a protection order.” See also: DCFR Art. VIII-6:101(3)  Protection of the Owner III  Owner can also exercise reasonable and immediate self- help to protect your property: e.g., protect your home from robbers  Under delict (tort) law: every damage to the property is a delict (tort) --- > the victim must be compensated for the damage caused by another subject of law (CL Art. 1052 (“compensation for all that the plaintiff has lost”; DCFR VIII. – 6:401 and VI. – 2:206:)  How you obtain property?  Some of the original means of obtaining rights:  Mixing your property with that of another  Creating new things  Occupatio (control + intention):  1) Hunting wild animals; fish, birds  2) Obtaining things that do not belong to anyone (also abandoned things)  In Latvia you cannot have real estate without an owner: then it goes to the state  Under specific circumstances the finder of the things  Accession (e.g., house built on the land)  Etc.  Acquisitive prescription will be described later!  Derivative acquisition  Derivative acquisition:  1) through succession (e.g., daughter inherits property of the passed away mother) --- > law of succession  2) merger of companies (if two companies decide to join and become one company that new company will succeed to these companies in relation to their patrimony) – company law  3) contracts (sale, barter, gift, loan for consumption, etc.) Transfer of property: Consensual/Delivery I  1) Consensual system (France, Belgium):  A sells car to B: B is owner even though the car is still in A’s garage.  2) Delivery/register system (Germany, Switzerland., Latvia):  A) delivery for movables: A sells car to B: A is owner until he gives B the car: Transfer of property: Consensual/Delivery II  B) Registration of immovables: A sells his house to B: B has possession of the house, but in the register of property A is still an owner.  This is the situation in Germany, Switzerland, Latvia  Here possession (actual control) is irrelevant for transfer of property  Protection of possession is still dependent on possession of the immovable  Acquisitive prescription still depends on possession (see later on what is acquisitive prescription)  Delivery/registration in Latvia and DCFR  Delivery/registration as means to acquire property is described in Art. 987 – 997 of the Latvian LCL  For the delivery vs consensual system under the DCFR, see:  Arts. VIII. – 2:101 - VIII. – 2:203.  Basically: the DCFR requires delivery of the thing to transfer property unless the contract provides otherwise  ---- > in Latvia (and similar “classical” delivery systems) parties cannot derogate from the delivery by  Typical other in rem rights  1) Servitudes  2) Pledge/mortgage (discussed later in the “Contract Law” course)  Servitudes (see, eg., LCL 1130 and further)  Typical servitudes: 1) a road; 2) use of water; 3) support of buildings; 4) building projection (construct over the “airspace” of the neighbor; 5)Drainage (from roof of one to land of another); 5) Limiting height of buildings on the neighbor's land, etc.  Only applicable to immovables!  Creation of servitude  Created by: 1) law; 2) will (testament); 3) contract (most typical ground); 4) judgment  In Germanic systems : servitude is valid and binding on future owners of immovables only once it is in the Land Register