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van Erp, Sjef; Akkermans, Bram --- "Property Rights: A Comparative View" [2010] ELECD 380; in Bouckaert, Boudewijn (ed), "Property Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Property Law and Economics

Editor(s): Bouckaert, Boudewijn

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847205650

Section: Chapter 3

Section Title: Property Rights: A Comparative View

Author(s): van Erp, Sjef; Akkermans, Bram

Number of pages: 22

Extract:

3 Property rights: a comparative view
Sjef van Erp and Bram Akkermans


1. Introduction
Property rights take a central place in any legal system. These rights offer
the holder exclusive power over an object with effect against the whole
world. Property rights are therefore different from personal rights, which
generally only have effect between the parties who create them. Parties are,
therefore, far more free to create contractual relations (rights and duties)
than they are in the creation of property relations. Because of their far-
reaching effect property rights are limited in number and content and their
creation, transfer and extinguishment requires that a special, mandatory,
procedure is followed. Property law is therefore different from contract
law, characterised more by limitations than by freedom.
Property law still is very nationally (in the sense of: locally) oriented.
Each legal system has its own property law, which, although it may be
rooted in a particular legal tradition, still follows its own path based upon
its own policy choices. This element of localism in property law systems,
aggravated by a tendency to argue along doctrinal lines and develop the
law in a highly technical and black letter rule-oriented way, makes the
comparison of these systems complicated. At the same time, however, all
(Western) property law systems seem to share a basic framework. The
constituent elements of this framework can be classified in terms of general
principles, policy choices, ground rules and technical rules (Van Erp 2006a,
13). This distinction in constituent elements ...