Why do We Need Grundstücke (Land Units), and What are They? On the Difficulties of Divining a European Concept of ?Thing' in Property Law

Author:Christian von Bar
Pages:3-15
 
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JURIDICA INTERNATIONAL 22/2014
Christian von Bar
Professor
University of Osnabrück
Why do We Need
Grundstücke (Land Units),
and What are They?
On the Dif culties of Divining a European Concept
of ‘Thing’ in Property Law
1. Things
Mutual understanding of the law of ‘property’ or ‘things’ in Europe is at present an especially arduous
undertaking. The problem starts with just isolating a suitable designation for the reference point for pro-
prietary rights. Whilst it is not possible to develop the thesis here,*1 I would maintain that, as a rst rough-
and-ready categorisa tion for the purposes of pan-European stock-taking appraisal, one should distinguish
between ‘objects’, ‘objects of commerce’, and ‘things’. ‘Objects’ encompasses every thing apart from ‘per-
sons’ that is susceptible to the application of rules of private law, an ‘object of commerce’ is an ‘object’ that
can be the subject matter of a sale or gift, and a ‘thing’ is anything that can be made the reference point for
a right that enjoys protection against third parties and is thus ‘absolute’ (in the sense that it is not merely
relative). The best approach is to distinguish between real and normative things. Real things exist indepen-
dently of law; have an intrinsically formed and demarcated corpus; and, in consequence of this attribute,
are capable of forming the subject matter of property rights. Normative things, in contrast, do not subsist
as a matter of nature; they owe their existence and their capacity to be the reference point of property rights
solely to an exercise of legal imagination—legal norms, in other words. This is the case, for example, not
merely with regard to debts and other rights to a performance and for shares in companies and partnerships
but also even in relation to parcels of land, or Grundstücke. Grundstücke belong to that set of normative
things that in most legal systems are capable both of being owned and of being the subject matter of other
property rights; claims and shares, on the other hand, are normative things that are susceptible only to
(mere) property rights, not to ownership as such.
1 Details and supporting material will appear in the rst volume of my forthcoming work Gemeineuropäisches Sachenrecht.
Publication is envisaged for 2015.
http://dx.doi.org/10.12697/JI.2014.22.01

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