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- Ignoring the Parties' Silence: the Controversial Borders of Implied Terms by Marchetti, Carlo
1University of California, Berkeley, (email)
Citation Information: Global Jurist Frontiers. Volume 3, Issue 1, ISSN (Online) 1535-1653, DOI: 10.2202/1535-1653.1080, March 2003
- Published Online:
The law governing servitudes might seem to resist principled explanation. It varies, not only between civil and common law jurisdictions, but within them. One might wonder how any principles that could explain the law of one jurisdiction could not explain that of others. This Essay claims that there is a principle that explains when the law should allow a landowner to create a servitude. The variety and confusion arise because the principle is hard to translate into a clear legal rule. Nevertheless, the principle itself is fairly simple. A servitude is created by parties who believe that it will serve their mutual interest. They expect the cost or inconvenience to the owner of the burdened property to be less than the advantage that the servitude confers on whomever it benefits. Therefore, the beneficiary is willing to pay an amount that compensates the owner of the burdened property for the cost or inconvenience. What matters in principle is whether this relationship is likely to persist: whether the advantage of the servitude those who succeed to its benefits will continue to outweigh the cost or inconvenience to those whom it burdens. If so, in principle, the law should recognize and enforce the servitude. Otherwise it should not. The first part of this Essay will take a comparative look at the law of servitudes. It will be seen that even the variety and confusion is understandable in light of the underlying principle. The Essay will then go on to explain why the Author finds his explanation of this principle in terms of fairness more compelling than Depoorter and Parisis economic explanation.