Classification collisions in the distinction of movable and immovable property in European Private Law
PhD student: Mr S.M. Charlton
Promotor: H. Schulte-Nölke
Duration: 1/9/2010 - 1/6/2014
This project investigates the fundamental classifications of property in English, French and German Law and the often different legal consequences with flow from them. Specifically, the legal concepts chosen for analysis are that of realty and personalty, excluding choses in action, bewegliche and unbewegliche Sachen, and as well as biens meubles and immeubles, excluding biens incorporels, in English, German and French law respectively. Given the increasing complexity and depth of European legislation, there is a need to explore fundamental principles and terminology of property law of the different European legal systems, without which the attainment of the goals set by such legislation could be seriously hampered and may even have a detrimental effect upon the national systems themselves. The projects methodology approaches the problems of comparing abstract legal concepts from the starting point of concrete examples which are, at first glance, qualified differently in the legal systems studied. Examples include the questions of whether and to what extent growing crops or factory machinery is part of the land or movable. The working-hypothesis is that a wholly unitary concept of the distinction is illusory. The distinction between movable and immovable property is multi-functional, any particular objects qualification as movable or immovable depends on which of the functions is at stake and a qualification of property under one function does not necessarily apply to the qualification of another function. The projects distinguishes three conceptual frameworks. Each framework focuses upon one function of the classification of property. These are, first, its use for resolving issues mainly in the law of obligations, second, internal aspects of the law of property (i.e. within the catalogue of real rights in land) and, thirdly, the qualification of property in third party relations for the purpose of resolving classification collisions.