Jan Felix Hoffmann, ‘The Proprium of Property Law’

ABSTRACT
Classical property law is not only losing economic relevance with the progressing dephysicalization of economic processes but is also increasingly perceived as a static field of private law, pursued by specialized lawyers working with rather inaccessible national concepts and dogmas that seem to have no significant relevance for the development of a digital economy. The mostly codification-driven comparative research on property law continues in the tradition of national property law codifications primarily addressing tangible objects. The research on property law should not restrict itself to this rather pragmatic approach, because in the end this arbitrarily delimits the concept of property law and reinforces the impression of classical property law only dealing with tangibles. Comparative property law should look beyond issues of codification and address the question of what is the essence of property law. Property law deals with the erga omnes effects of rights. It therefore not only addresses full-fledged property rights over movables or immovables but also covers partially absolute rights over these assets on the threshold to contract law. Property law also addresses absolute rights with regard to intangibles. This awareness should on one hand demand from any discussion on creating new (partially) absolute property rights to take notice of the state of the art of current (comparative) property law. It should on the other hand incite classical property lawyers to take part in these debates and to question the traditional concepts and principles in light of the new developments. Classical institutions of property law should be reconsidered from this point of view.

Jan Felix Hoffmann, The Proprium of Property Law, European Property Law Journal, https://doi.org/10.1515/eplj-2021-0012. Published Online: 2021-12-07.

First posted 2021-12-14 14:00:52

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