Milo, J. Michael --- "Property and Real Rights" [2006] ELECD 204; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 53

Section Title: Property and Real Rights

Author(s): Milo, J. Michael

Number of pages: 16

Extract:

53 Property and real rights*
J. Michael Milo


1 Introduction
Property refers to objects capable of being privately owned; private prop-
erty law regulates relations between (legal) persons with regard to (rights
in) those objects. It deals with the issue of which objects are recognized as
object of private property rights; with the determination of form and
content of property rights and their protection; with acquisition and loss
of property rights. Intellectual property law, though having many similar-
ities on the level of principles, is dealt with in its own specific, often inter-
national realm. There is one important distinguishing characteristic of
property rights, which may be seen in many jurisdictions: property rights
are exigible against an indefinite number of people or have an erga omnes
effect, and are as such opposed to personal rights (see, e.g., Rudden, 2002;
Swadling, 2000, p. 204, s.4.01; Westermann, 1998, s.3; Terré and Simler,
2002, no. 143). The consequence is that property rights, since they affect the
position of third parties, need to have a relatively high level of certainty and
predictability. Therefore the regulation of the mentioned issues in national
jurisdictions is often detailed, since interests of third parties need to be
taken into account, and is often mandatory. The regulations follow certain
principles which serve certainty and predictability, and which can also be
detected in those national jurisdictions: the principle of specificity of
objects of property rights; the principle of numerus clausus of property
rights; the principle of ...