Download - Ownership and liability
Summary
• Conflicts between two rights of ownership
• Conflicts that involve only one right of ownership
• Current system to solve those conflicts in Belgian Law
• Several problems
• Alternative?
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Conflicts between two rights of ownership: Belgian Law
• Article 544 Belgian Civil Code: broad definition of the right of ownership
• Two private restrictions: - article 1382 Belgian Civil Code= fault liability - article 544 Belgian Civil Code= “no-fault” liability
• Dual approach
• Dutch system: fault liability3
Conflicts: only one right of ownership (1)
• Belgium: article 1382 Belgian Civil Code: fault liability
• France: recent evolution: image of goods, conflict between a right of ownership and a right of image
- 1999: the ownership of a good extends over the image of a good
- 2001: owner of a good must prove a “certain nuisance”
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Conflicts: only one right of ownership (2)
- 2004: “owner of a good is able to resist the use of the image by a third party if it causes him an excessive, abnormal nuisance”
• France: no-fault liability regime
• Belgium: until now fault liability
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Conflicts between two rights of ownership: Neighbours nuisance (1)
• Neighbours nuisance: no-fault liability, the possibility to be held liable if someone causes his neighbour an excessive, abnormal nuisance while exercising his right of ownership
• Neighbours nuisance: article 544
• Foundation: article 544 (ownership), but not limited to “owners”, sufficient to be a holder of a property or a personal right and thus to dispose of an attribute of the right of ownership
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Conflicts between two rights of ownership: Neighbours nuisance (2)
• Holder of an attribute of the right of ownership: constructor?
• Requirement of accountability: - Consequence: a “subjectivation” of the theory of
neighbours nuisance - Problem: “in solidum” condemnation of the constructor
and the principal
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Conflicts between two rights of ownership: fault liability
• Fault liability: article 1382 Belgian Civil Code
• Research: analysis of the possible circumstances to be held responsible
• Special notice: prohibition of abuse of the law
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Provisional conclusion
• Traditional distinction between fault liability and no-fault liability of the theory of neighbours nuisance seems to fade away
• Research: check whether the current system can maintain
• Alternative?
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Conflicts that involve only one right of ownership
• Belgium: fault liability
• France: creation in this sphere of a no-fault liability regime
• Transfer to Belgium?
• Conflict between an owner of a good and an intellectual property right (image-creation)
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Foundations of the right of ownership
• If confirmation of the French solution: enormous consequences
• A third party may use your property (exploitation of the image of the good), under the express condition not to cause an abnormal, excessive nuisance
• Exclusivity of the right of ownership?
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