scholarly journals Regards sur le nouveau droit de la famille au Canada anglais et au Québec

2005 ◽  
Vol 22 (3-4) ◽  
pp. 723-784
Author(s):  
Denyse Guay-Archambault
Keyword(s):  
Common Law ◽  
Civil Code ◽  
English Canada ◽  
Property Law ◽  
Private Law ◽  
Mother Country ◽  
Statutory Law ◽  
The Common ◽  
The Law ◽  
Code Civil

The English origin of the law in the Common law jurisdictions in Canada makes it mandatory to study common law and English statutory law. It is through those that we can follow the development of a family property law in English Canada. Starting from an individualistic view of the spouses' property, we shall witness the emergence of the idea of « family assets » which has been « enshrined » in recent legislation. The law of Québec has evolved differently. Though of Trench origin, it has not kept as near its mother-country as its neighbour's has done with English law. Turthermore, due to its civilian character, its principles of private law are to be found in the Civil Code. This favours a different approach. That is why we will generally confine our study to those rules which are to be found in the Code civil du Bas-Canada and to the newly adopted Code civil du Québec. We will see what has become of the original community of property and compare the present law of Québec with recent legislation in English Canada.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Intellectual Property Law and Redressive Autonomy

2020 ◽  
pp. 161-186
Author(s):  
Shyamkrishna Balganesh
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Property Law ◽  
Private Law ◽  
Intellectual Property Law ◽  
Additional Layer ◽  
The Common ◽  
Strong Commitment

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes—known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

scholarly journals Fragments of Europeanization of Georgian Property Law and Law of Obligations in the Context of Reception of German Law

2019 ◽  
Vol 9 (1) ◽  
pp. 140-156
Author(s):  
Tamar Zarandia ◽  
Natia Chitashvili
Keyword(s):  
Conceptual Framework ◽  
Civil Law ◽  
German Law ◽  
Civil Code ◽  
Property Law ◽  
Private Law ◽  
Approximation Process ◽  
Research Article ◽  
The Law ◽  
Legal Harmonization

AbstractThe present research article focuses on the description of the dynamics of Europeanization of two fundamental concepts of Georgian property law and the law of obligations—acquisition of a thing from a non-authorized alienator and the unified concept of breach of obligation—in the context of reception of German law. At the historical stage of formation of the Civil Code of Georgia (CCG), focusing on the conceptual framework of German civil law, the German law, in its turn, was an integral part of the Europeanization process. Hence, Europeanization influenced the development of Georgian civil law through the reception of German law. When referring to the reception of German law in this article we simultaneously mean the process of Europeanization of Georgian civil law, which penetrated not directly but rather through the reception of European (in this case, German) codification. The ongoing reform of Georgian civil law inevitably requires its legal harmonization with EU codifications in the context of central paradigms of acquisition of a thing from a non-authorized alienator and the unified concept of breach of obligation. Analysis of the dynamics and often contradictory root of the Europeanization of Georgian private law will enable scholars and legislators conduct legal approximation process on the basis of research-based recommendations.

The Unity of Property Law

1991 ◽  
Vol 4 (01) ◽  
pp. 3-66
Author(s):  
Alan Brudner
Keyword(s):  
Common Law ◽  
Property Law ◽  
Legal Practice ◽  
Object A ◽  
Normal Product ◽  
The Common ◽  
The Law ◽  
Moral Respect

This essay defends the thesis that the common law of property exhibits an internal unity worthy of moral respect. There are three distinct elements to this claim, each of which may be elucidated through a contrast with the position it opposes. First, the unity we seek in the law of property is an internal one. This means that we unabashedly seek property law’s own unity, regarding artificial constructions as a defect of interpretation rather than its normal product. We do not set out in advance the underlying ground for the possibility of faithful interpretations of legal practice; for that ground will emerge as the unifying theme of property law and so must be methodically drawn from the object rather than baldly asserted beforehand. Nevertheless, it is possible to indicate at the outset how an internalist understanding of property law will differ from interpretations that are constructionist, or that impose on the object a unity alien to it.

Illegal Earnings

2018 ◽  
Vol 9 (1) ◽  
pp. 54-80
Author(s):  
James Goudkamp ◽  
Lorenz König
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The United Kingdom ◽  
Considerable Promise ◽  
The Subject ◽  
The Common ◽  
The Law

AbstractThis article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

Philosophical Foundations of the Law of Equity

2020 ◽  
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Social Goals ◽  
Private Law ◽  
The Rule Of Law ◽  
Philosophical Foundations ◽  
Order Constraint ◽  
The Common ◽  
Law And Morality ◽  
The Law

A late-comer to the field of private law theory, the inquiry into the foundations of the law of Equity raises some fundamental questions about the relationships between law and morality, the nature of rights, the extent to which we are willing to compromise on the Rule of Law ideal in order to achieve various social goals. In this volume, leading scholars in the field address these and the questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of ‘equity’? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity—and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around ‘fusion’.

scholarly journals The Unjust Enrichment Fallacy And Private Law

2013 ◽  
Vol 26 (1) ◽  
pp. 115-136
Author(s):  
Peter Jaffey
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Contract Law ◽  
Property Law ◽  
Private Law ◽  
Unjust Enrichment ◽  
The Common

The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would seem, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.

scholarly journals PENGUATAN KEDUDUKAN PRANATA HAK SERVITUT DAN HUKUM BERTETANGGA DALAM YURISPRUDENSI

2016 ◽  
Vol 3 (1) ◽  
Author(s):  
Rizal Sofyan Gueci
Keyword(s):  
Common Law ◽  
Civil Code ◽  
Customary Law ◽  
Land Consolidation ◽  
The World ◽  
The Common ◽  
The Law ◽  
Agrarian Law ◽  
Almost All ◽  
The Village

The Constitution has laid the foundation of checks and balances amongst the main state organs namely the executive, the legislative and the judicial power. This order as a guideline in the state and society, till the Village  level and within groups in the village such as the Neighborhood and citizen groups. Servitut Rights and neighbors law answer challenges of development of human settlements sustainably and resilient.  Servitut rights as a property rights regulated in Neighbor law book II Indonsian Civil Code of 1848 or in adat law term called easement (hak melalui tanah orang lain) which known by adat community entity is not older than the easement is recognized by customary law in almost adat law community entity throughout the territory of Indonesia.  The servitut right is the easement of yard (erfdiensbaarheid) or burden to rest on the grounds that one for the benefit of the another yard such that the owner of the yard were crushed should let the owner of the yard oppressor to pass through, drain the water (clear) on it, take view out through the window etc. This devotion land does not end with the death or replacement of yard owners concerned (Article 674 of the Indon. Civil Code). There are still remnants of feudalism and colonialism in tribal society, reflecting the concrete cases in the community there is disturbance against the rights of servitut with vigilante, then the rule of law invoked repeatedly and generating permanent jurisprudence. Kedudukannya hak servitut tidak tergoyahkan dengan adanya UUPA 1960 yang mengatakan semua hak atas tanah mempunyai fungsi sosial dan hukum adat dijadikan dasar dari hukum agraria nasional. The position of Servitut rights is impregnable with the Basic Agrarian Law 1960 (BAL) that says all rights on land has social functions and customary law form the basis of the national agrarian law. In Article I point 6 of BAL No. 5 year 1960 proves Indonesia is in a row of civilized countries that accommodates this legal institution. Jurisprudence confirm customary law as a living law as well as the Civil Code 1848 according to Supreme Court Circuler of 1963 treat as unwritten customary law in order to prevent the legal vacuum and reaching the objectives of the law. Jurisprudence has been recognized as one of the legitimate source of law in the Republic of Indonesia.  Indonesian Judges have shown its class in the world of justice, who did not want to look different in servitut rights issues which is an universal phenomenon. Almost all civilized countries of the UN members have recognized the existence of this institute servitut rights, both in the Code book as well as in its jurisprudence. Servitut rights institution is rooted in the common law ius commune since Roman Empire, which can not be ignored, despite overall individualistic Roman law, but in particular there are elements of social function. Servitut (lat.) is accommodated into the book of the law in almost all countries in the world, through colonialize, import law, voluntary transplants in the law of one self. Boedi Harsono, as nationalist and socialist thinker and R. Supomo as father of Indonesian customary law and by youth in 1928 is regarded as a national law with the smooth call it "right through another person's land" which is also known by the common law. The permanent Jurisprudence remains threngthen unwritten norm servitut rights or land rights through anothers person’s land showed the class of Indonesian Judges comparabele with justices of developed nations in assessing this servitut rights. Implementation build without displacing has been regulated in Law No. 4 year 1992 art. 22-32 and Act No. 1 year 2011 on Housing and Settlement Region art. 106-113 law institute land consolidation, which is compatible with the institute servitut right and reconfirmed the servitut.  Implementation, if one developer alone could make the plot and make the land ready to build cosolidate up to 6,000 ha orderly development of land, so a province or a local government / city are challenged to be able to hold up to 6,000 ha of land consolidation to reduce the backlog and combating land speculators. For the assessment of achievement of the Governor / Regional Office of BPN how long had a special local street, public street or road of servitut rights through land consolidation and how many special streets that have been submitted become public streets.Keywords: Reinforcement, top notch institutions, rights servituut

Land Tenure, Property, and Development

2000 ◽  
Author(s):  
Peter Dale ◽  
John McLaughlin
Keyword(s):  
Land Tenure ◽  
Common Law ◽  
Land Rights ◽  
Customary Law ◽  
Natural Object ◽  
Statutory Law ◽  
Present Context ◽  
The Common ◽  
The Law ◽  
Over Time

The law provides a complex set of rules that have evolved within each society to ensure its orderly running and the peaceful behaviour of its members. The law may take several forms, amongst which broadly speaking, there is statutory law and customary law. Under statutory law, all rules and regulations are written down and codified; under customary law there is no written record but it is assumed that the code is well known by all members of society. In some jurisdictions there is the common law which grew out of customary law; over time the judgements of the courts have been written down and now create precedents whereby new cases can be judged. many jurisdictions have legal regimes that combine in some fashion statutory and customary law. The law of property deals both with relations between people (in personam) and of persons to things (in rem). The law recognizes different types of interest in property and makes a distinction between the physical objects and the abstract rights associated with their use. Land as real or immovable property is in many jurisdictions taken to include all things attached to it such as buildings and other permanent fixtures. It also usually includes the minerals below the soil and the air above, unless these are specifically excluded. In some countries, however, a distinction is made between ‘land’ as a natural object with soil and a surface and ‘property’, which is taken to mean the buildings and other man-made objects attached to the land. In the present context, land will be regarded as including all construction and development, while the word ‘property’ will normally be used more specifically to relate to the abstract nature of land. Rights describe what may be done with property; they are abstract but none the less real in their effect. They have been described as being like a bundle of sticks associated with any property, one stick for each thing that can be done with the property.

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

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