Ownership and liability

Ius Commune CongressMaastricht

26th and 27th of November

Thomas De Bie

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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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Aims of research

• Check whether the first analyses are correct

• Is the distinction between the fault liability regime and the no-fault liability regime fading away?

• Reconsideration of the Belgian system?

• Alternative?

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