Volume 9 (2009)
Most Downloaded Articles
- Definition of "Investment": Could a Persistent Objector to the Salini Tests be Found in ICSID Arbitral Practice? by Martin, Antoine
- Comparative Personal Property: The Case of Shares by Pretto, Arianna
- Female Circumcision as Female Genital Mutilation: Human Rights or Cultural Imperialism? by Oba, Abdulmumini A
- The E-Commerce Directive and Formation of Contract in a Comparative Perspective by Ramberg, Christina Hultmark
- The International Legal Personality of Multinational Enterprises: Treaty, Custom and the Governance Gap by Hansen, Robin F.
Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes
1Ghent University, email@example.com
2George Mason University, firstname.lastname@example.org
Citation Information: Global Jurist Frontiers. Volume 3, Issue 1, Pages –, ISSN (Online) 1535-1653, DOI: 10.2202/1535-1653.1081, March 2003
- Published Online:
This Article argues that recent developments in economic theory provide a new rationale for the dichotomous approach of land use arrangements in the law of servitudes that is almost universal in the modern Western legal tradition. The treatment of certain land-related promises as enforceable contracts between parties, rather than real rights that run with the land in perpetuity, can be explained as an attempt to minimize the transaction and strategic costs resulting from dysfunctional property arrangements. As demonstrated by the Authors, benchmark doctrines such as touch and concern, and the civil law principles of prediality and numerus clausus, have served as instruments to limit excessive or dysfunctional fragmentation of property rights. Section I of this Article describes the dichotomous approach of land use arrangements in the law of servitudes in Common Law and Civil Law systems. Section II provides a functional explanation of the legal rules in this area. Section III documents and explains the changing approach to land use law in both Common Law and Civil Law jurisdictions. Section IV discusses the role of property law in a changing economy. Section V reflects on the appropriate scope of freedom of contract in the law of servitudes. Section VI concludes.