Details

Autor(en) / Beteiligte

• Vargas Weil, Ling Ernesto René

Titel

Stability and Change in Property Law : a Comparative Approach to the Principle of Numerus Clausus

Ort / Verlag

ProQuest Dissertations & Theses

Erscheinungsjahr

2022

Quelle

ProQuest Dissertations & Theses A&I

Beschreibungen/Notizen

• As a result of following a 'principle of numerus clausus', contemporary property systems are frequently described as static, rigid and formalistic. Under this principle, the number and content of property rights are limited by the law. This creates two sources of rigidity: first, it denies private parties the freedom to create new property forms by contract, and second, it restricts the power of courts to develop the property system. Despite this, modern property systems seem largely capable of accommodating the demands created by a vast array of external changes without undergoing noticeable transformations. This dissertation aims to contribute to the solution of this paradox through a comparative research of English and German property law. Contrary to recent views arguing for the relaxation of the numerus clausus principle and the expansion of the list of property rights to keep property law in step with society, this thesis puts forward that the numerus clausus provides property law with an 'internal' structure that can accommodate new realities without the need of constant reform. The core of this argument is that the restrictions that the numerus clausus imposes on the free creation of property rights ensure that property law retains a modular structure that preserves the liberty of third parties to 'functionally transform' the object of their property rights in the face of changing circumstances. To develop this argument, the dissertation relies on the distinction between trespassory and successor liability recently advanced in Anglo-American scholarship. By noticing that the numerus clausus has different effects in limiting the creation of duties that will affect all strangers and duties that will only affect successors in title to the thing, this dissertation brings to light the doctrinal and functional structures that allow contemporary German and English property law to accommodate real-world changes with limited legislative reforms.