Benjamin Porat, ‘Ownership and Exclusivity: Two Visions, Two Traditions’

Abstract:
In recent years, many have come to consider the right to exclude as the Punctum Archimedis that the concept of property is based upon. In the present article, I seek to re-evaluate the relations between property and exclusivity from an unusual vantage point: a comparison between two deeply-rooted legal traditions – Anglo-American law and Jewish law. For this purpose, I analyze four fundamental doctrinal differences between these two legal traditions, namely the cases of unrequested improvement, of benefiting from someone else’s property, of performing legally binding actions regarding another person’s property, and of imposing positive duties on a non-owner in favor of the owner. The different solutions that were developed by each of the legal traditions explored herein are sharply and clearly reflected in these traditions’ unique respective visions regarding notions of property and exclusivity. This article intends to bring out the latent connections between the four aforementioned test cases, tracing the threads that weave the various doctrines into coherent conceptions. Ultimately, it also places each of the two legal systems discussed as a challenging mirror image for the other, calling for fresh thinking released from fixations.

Porat, Benjamin, Ownership and Exclusivity: Two Visions, Two Traditions (November 28, 2015). 64 American Journal of Comparative Law, 147-190 (2016); Hebrew University of Jerusalem Legal Research Paper No 15-31.

First posted 2016-04-21 06:17:59

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