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

Published online by Cambridge University Press:  22 December 2020

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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.

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Publisher: Intersentia
Print publication year: 2020

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