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The Principle of Numerus Clausus in European Property Law (Paperback)
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The Principle of Numerus Clausus in European Property Law (Paperback)
Series: Ius Commune: European and Comparative Law Series, 75
Expected to ship within 12 - 19 working days
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In order to develop a framework that can form a basis for the
development of a European property law, this book provides a
comparative analysis of property law from the perspective of four
European legal systems and European law, focusing on the numerus
clausus principle. The book offers theoretical insights on how
substantive property law, European law, and, to a certain extent,
private international law intersect. The principle of numerus
clausus, one of the fundamental principles of property law, is
adhered to by most legal systems. In this book, an analysis of the
property law systems of France, Germany, the Netherlands, and
England is provided. A description is given of the content of
available property rights in each of these systems, followed by an
examination as to whether these rights form a closed system and
whether private parties are given freedom to shape property rights,
or even create new types of rights. In the last decades, property
law has come under pressure to allow more party autonomy. In other
words, property law has become more and more subject to pressure
from contract law. Private parties attempt to draft their contracts
in such a way that their contractual arrangements are given
property effect. Sometimes they also attempt to make use of a
property right in a way that was not foreseen by legislature or
courts. As a result, rights have come into existence that are
intermediary between the law of contract and the law of property.
Moreover, the systems of property law are also subject to a growing
influence from European legislation. The development of the
internal market in the European Union increasingly forces Member
States to answer the question whether and, if the answer is
affirmative, in what way property rights created in another Member
State should be recognized. Substantive property law intersects
here. Until now, national legal systems generally resist this
influence of European law and use the principle of numerous clausus
as a justification. It is to be questioned whether the numerus
clauses principle can still act as a guardian against the influence
of foreign and European law.
General
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