Skip to main content Accessibility help
×
Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-09T07:29:17.402Z Has data issue: false hasContentIssue false

Property Law, Contract Law and Environmental Law: Shaking Hands with the (Historical) Enemy

Published online by Cambridge University Press:  22 December 2020

Get access

Summary

INTRODUCTION

1. Property, contract and environment: from a legal perspective, it seems to be a Bermuda triangle which swallows up all possibility of legal solutions. The basic principles of property law and environmental law are historically, at least on the European continent, quite opposite. Property law is said to be based on exclusion, while environmental law would reflect the commons interfering with exclusive property rights. Environmental law would, in this reasoning, threaten the idea of sovereignty on behalf of the private owner. A handshake between both would, in that historical mindset, risk to cause a regression in the historical acquisitions of property law, especially the acquis of the French Revolution.

We will analyse in this contribution the extent to which the increasing public awareness for environmental issues, and the search for legal devices granting possibilities to connect environmental obligations to land indirectly results in a private law earth quake: the division between property law and contract law, which is traditionally conceived as a main building block for the structure of private law across the bridge between civil law and common law, is refined and even re-articulated through this development. All legal systems which are under scrutiny in this volume, developed a specific legal device as a response to the environmental policy reasons. All national legal systems had to deal with the question whether they introduced a contractual device running with the land or a property law device.

2. We will take, in this contribution, existing property rights as starting point. Therefore, the scope of this contribution is limited: it questions neither the justification for the existence of property rights, nor the allocation on the basis of the available natural, economic and social needs.

A HISTORICAL APPROACH: THE ABSENCE OF ‘COMMONS ‘ IN PROPERTY LAW

OWNERSHIP AS EXCLUSIVE DOMINION

3. An owner has, in modern property law, absolute powers over the subject matter of his right and can exclude anyone from interfering with his ownership right. A land owner would have an unlimited right to exercise and develop his real estate according to his own needs. This absolute and exclusive ownership was, in other words, a free space for individual freedom and personal fulfilment.

Type
Chapter
Information
Publisher: Intersentia
Print publication year: 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×