Property Law Perspectives VI

Preface XIII

Part I General Principles and Fundamental Property Questions
1 The Role of the Numerus Clausus Principle in (Re)Characterizing Property Rights 3
Ghijsbrecht Degeest
1 Introduction on (Re)Characterization (of Agreements) 3
2 Rights to Use: Property and Personal Rights 5
3 The Closed System (Numerus Clausus) of Property Rights and the Open System of Personal Rights 5
4 The Nuanced Role of the Principle of Numerus Clausus in Characterizing
Agreements Granting a Right to Use 8
4.1 Nuancing (the Role in the Characterization Process of) Typenfixierung
4.1.1 Freedom of Contract within the Framework of the Different Property Rights 8
4.1.2 Lenient Approach towards Provisions of Mandatory Law and Essential Characteristics 9
4.2 Nuancing (the Role in the Characterization Process of) Typenzwang 12
5 General Remarks Concerning Characterization of Agreements 13
5.1 The Characterization as a Search for the Parties’ Common Intention 13
5.2 The Moment of Conclusion as Reference Point 14
5.3 Necessary Objectification of the Parties’ Common Intention 14
5.4 The Objectification of the Parties’ Common Intention Can Be Found (Primarily) in Intrinsic and (Secondarily) in Extrinsic Elements 15
6 In Search of the Primary Characterization Criterion 15
6.1 The Requirements for the Primary Characterization Criterion 16
6.1.1 Permanent 16
6.1.2 Objective 18
6.1.3 Intrinsic 18
6.1.4 Sufficiently Specific and Selective 19
6.2 The Obligations That Result from the Agreement as Primary Characterization Criterion? 20
7 The Internal and External Structure of the Agreement 21
7.1 Internal Structure of the Agreement: Principal versus Accessory Obligations 21
7.1.1 The Principal Obligation(s) 22
7.1.2 The Accessory Obligation(s) 25
7.2 External Structure of the Agreement: Named versus Unnamed Contracts 29
7.2.1 Named versus Unnamed Structure of the Agreement: Notion 29
7.2.2 The Characterization of the Agreement as Named or Unnamed 30
8 Applying the Characterization Criteria on the Given Agreement 33
9 The Necessity of Secondary (Contract- or Context-specific) Characterization Criteria 34
10 Conclusion and Closing Remarks 37

2 Relative Termination of Immovable Limited Rights In Rem in Belgian, French and Dutch Law 45
Benjamin Verheye
1 Introduction 45
2 The Relative Nature of Some Termination Grounds: General Principles 1.0 46
2.1 The Concept ‘Relative Nature of Termination Grounds’: Essentials 46
2.2 Termination Grounds without Relative Effect 47
2.2.1 Introduction 47
2.2.2 Usual Termination Grounds without Relative Effect 47
2.2.3 Unusual Termination Grounds without Relative Effect 51
2.2.4 Real Subrogation as a Remedy 52
2.3 Unusual Termination Grounds with Relative Effect 53
2.3.1 Renunciation 53
2.3.2 Termination by Mutual Consent 55
2.3.3 Denunciation 57
2.3.4 Confusion 60
2.3.5 Deprivation Because of Abuse of Rights 62
2.3.6 Termination Because of Changed Circumstances in Dutch Law 65
2.3.7 Resolution Because of Violation of a Contract 65
3 Conclusion 72

3 The Protection of the Transferee Against Bankruptcy of the Transferor: Towards a Functional Approach for Movables? 75
Sander Baeyens
1 Introduction 75
2 Transfer of Ownership in ‘Mainstream’ European Legal Systems 77
2.1 The Distinction between Consensual Systems and Delivery Systems 77
2.2 The Relevance of the Distinction between Consensual Systems and Delivery Systems in the Event of Bankruptcy 78
3 The Convergence between Consensual Systems and Delivery Systems 80
3.1 Consensual Systems as ‘Fictitious’ Delivery Systems 80
3.2 Generic Assets and Future Assets 81
3.3 Contractual Deviations: Retention of Title and Constructive Delivery 82
4 The Functional Approach 83
4.1 The Functional Approach: Concept 83
4.2 The Functional Approach in Scandinavian Legal Systems 84
4.3 The Functional Approach in ‘Mainstream’ European Legal Systems: Belgian Law as a Test Tube 85
5 Functional Analysis of the Position of the Transferee in the Event of Bankruptcy of the Transferor: A Bankruptcy Law Perspective 88
5.1 The Role of Bankruptcy Law 88
5.2 The Conflict between the Transferee and the General Creditors of the Transferor in the Event of Bankruptcy 89
6 Conclusion 90

4 The Effect of a Seller’s Insolvency on the Transfer of Immovable Property 93
Tiddo Bos
1 Introduction 93
2 The Transfer of Immovable Property and Insolvency: Substantive Law 95
2.1 The Transfer of Immovable Property 95
2.2 The Effects of Insolvency in General 96
2.3 Transferring Immovable Property after Bankruptcy: The Fixation Principle under Dutch Law 97
3 Purchaser Has Already Paid the Purchase Price 100
3.1 The Transfer of Immovable Property: The Dutch Procedure 100
3.2 The Baarns Beslag-Judgment in this Context: A Simultaneous Transfer? 101
3.3 The Retroactive Effect of the Fixation Principle 102
4 South African Law and Scots Law 104
4.1 South Africa 105
4.2 Scotland 106
5 Summary and Concluding Remarks 108

Part II National Developments
5 Is Company Law a Branch of Property Law Under Belgian Law? – The Company with Legal Personality as a Specific Form of Co-ownership or as a Sui Generis Construction 113
Johan Van de Voorde
1 Introduction 113
2 A Company with Legal Personality as a Special Form of Co-ownership (Coipel Thesis) 114
2.1 The Traditional Thesis 114
2.2 Shareholding as Co-ownership of the Company Patrimony (Coipel Thesis) 115
3 Critical Analysis of the Coipel Thesis 116
3.1 Arguments pro the Coipel Thesis 116
3.1.1 Developing the Company from Co-ownership 116
3.1.2 Case Law 118
3.2 Problems of the Coipel Thesis 119
3.2.1 Terminology and Legal Texts 119
3.2.2 The Limited Explanatory Value of the Coipel Thesis 121
3.2.3 Case Law 122
3.3 Interim Conclusion 123
4 Property Law and Company Law as ‘Third-Party Laws’: A Better Analysis 124
4.1 Introduction 124
4.2 Defining ‘Third-Party Law’ 124
4.3 Effects of the Qualification as a Third-Party Law 125
4.3.1 A Priori Limited Effects 125
4.3.2 Limiting Party Autonomy 125
4.3.3 Publicity 126
4.3.4 Abuse of Right 127
4.4 Interim Conclusion 127
5 General Conclusion 128

6 Transfer of Title to Goods by Intent in English Law 129
Zhicheng Wu
1 Introduction 129
2 Intent to Convey or Intent in Contract 131
3 Implication from Exigibility 135
4 Historical Exploration of the Rules 137
5 The Draftsman’s Assertion 141
6 A Consensual and Abstract System in Sale of Goods 143
7 Conclusion 146

7 Security Interests in Movable Property: A Need for Reform in Mexico? 149
Rafael Ibarra Garza
1 Introduction 149
2 Mexican Movable Security Law and the Reforms 151
2.1 Mexican Movable Security Law 151
2.2 The Reforms 155
3 The Success of the Reforms 156
3.1 The Harmonization of Security Law with the Needs of a Modern Economy 157
3.2 The Perpetual Access to New Credit 158
3.3 The Creation of Capital by the Debtor 159
3.4 The Security Registration System 160
4 The Failures of the Reforms 161
4.1 The Multiplicity of Security Techniques 161
4.2 The Foreclosure of Securities 162
4.3 The Disharmony of Insolvency Law 164
5 Conclusion 165

8 The Interaction between Preemption Rights and Security Trusts 167
Rafael Ibarra Garza and Eduardo Javier Odriozola Garza
1 Introduction 167
2 The Interaction between Preemption Rights and the Constitution of the Security Trust 170
2.1 The Existence of a Transfer of the Right of Ownership from the Settlor to the Trustee 170
2.2 A Non-Definitive Transfer of the Right of Ownership from the Settlor to the Trustee: The Non-Enforceability of Preemption Rights 171
3 The Interaction between Preemption Rights and the Enforcement of the Security Trust 173
3.1 The Enforcement of the Security Trust 173
3.2 A Definitive Transfer on the Enforcement of a Security Trust: The Enforceability of Preemption Rights 175
4 Conclusion 177

Part III New Avenues in Property Law Research
9 E-Books, Music and Film Files – Things as Defined by Section 90 BGB? 181
Stefan Bucher
1 Introduction 181
1.1 The Concept of the Thing: The Heart of Property Law 181
1.2 Classical and Modern Channels of Distribution for Media Content 182
1.3 Analysis of the Neglected Aspects of Property Law of the Problematic 184
2 The Legal Nature of Pieces of Digital Media 184
2.1 The External Structure of Section 90 BGB as the Starting Point of the Investigation 186
2.2 The Opinion in the Literature on the Concept of the Thing Pursuant to Section 90 BGB 186
2.3 Criticism of the Present Approach 187
2.3.1 Inconsistencies of the Results of the Prevailing Opinion 187
2.3.2 Background and Consequence of the Prevailing Opinion 188
2.4 Own Approach 189
2.4.1 Uniform Assessment According to Current State of Natural Science 190
2.4.2 Things as a Subset of Corporeal Objects 191
2.4.3 Interim Result 193
3 The Concept of the Thing as Defined by the BGB 194
3.1 Presently Demanded Criteria of the Concept of the Thing 194
3.2 Marketability 194
3.3 Function of the Determined Criteria and the Relationship between Them 195
3.3.1 Present Approach 196
3.3.2 Own Approach: Criteria as Indices Rather Than Mandatory Requirements 197
3.4 Interim Result 197
4 Subsumption 198
4.1 Physical Definition 198
4.2 Controllability 199
4.3 Sensuous Noticeability 199
4.4 Marketability 200
5 Existing Rights Regarding E-Books, Music and Film Files 201
5.1 Possession 201
5.2 Ownership 201
6 Summary and Result 202

10 3D Printing as a Challenge for Patent Law in Europe – Legal and Practical Limits, and Practical Chances for Rights Holders 203
Constantin Blanke-Roeser
1 Introduction 203
2 Technical Background of 3D Printing 204
3 Relevance of 3D Printing for the Current Patent Law 204
3.1 Overview: The Three Types of Patents 204
3.2 National Patent, Using the Example of the German Patent 205
3.2.1 Manufacture and Distribution of an Object 205
3.2.2 Actions in Relation to CAD Files 206
3.3 European Patent 209
3.4 Unitary Patent 209
4 Limits of the Current Legal Framework 210
5 Possible Solutions 211
5.1 Legal Solutions 211
5.2 Practical Measures for Rights Holders 214
6 Conclusion 215

11 Whose Freedom Is It Anyway? – Restrictions on In Rem Security as Obstacles to the Internal Market 219
Flavius Alexandru Boar
1 Negative Harmonization of In Rem Securities 219
2 Requirement of Trade Restrictions within Security Law 223
3 Absolute Benchmark of Efficiency for In Rem Securities 228
4 Impersonal Freedoms for Generic Efficiency of Securities 231