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Advanced Introduction to Private Law

Jan M. Smits

In this Advanced Introduction, one of the world's leading private law scholars takes the reader on an intellectual journey through the different facets and dimensions of the field, from the family home to Kuta Beach and from Thomas Piketty to Nina Hagen.
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Property law

Jan M. Smits

Extract

can be seen as channelling decision-making for scarce resources.2 The question of how to realise this, and which role the law plays in it, is discussed first (Section 4.2). This frees the way for considering the absoluteness of property rights: how far does the autonomy of the owner in making use of his property actually reach and upon what is this autonomy based? It will be shown that autonomy in property law is a two-edged sword: because property rights can be exercised against the entire world the use, creation and contents of such rights are necessarily limited. This is why the law emphasises the social function of ownership (Section 4.3) and adopts a closed system of property rights (Section 4.4). Three important aspects of the owner’s powers are subsequently examined: rights of use (Section 4.5); security rights (Section 4.6) and the right to keep and transfer property (Section 4.7).

However, any systematic treatment of property law must start with the question as to which goods property rights may be vested. Phrasing the question in this way already reveals an important aspect of property law: property lawyers are not interested in land, houses, ships or machinery as such but only in the invisible parallel life of rights in these material objects.3 These could be rights of ownership but also security rights (such as a pledge) or rights of use (such as an easement or servitude). This is well reflected in s. 16 of the English Sale of Goods Act,...

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