Understanding Heritage and Property Rights in Civil Law
Heritage and Property Rights
Definition of Heritage
Heritage encompasses all rights and obligations belonging to a person, appreciable in monetary value. Net worth is calculated by subtracting liabilities from assets.
Elements of Heritage
Heritage consists of two elements:
- Assets: Property and rights with monetary value.
- Liabilities: Debts and expenses subject to monetary recovery.
Classical Theory of Heritage-Personality
According to the French Classical School, assets, rights, obligations, and charges constitute an abstract entity.
Key Principles by Aubry and Rau:
- Only individuals can possess heritage, as only they can have rights and obligations.
- Every person must have a heritage, encompassing present and potential property.
- A person can only have one heritage.
- Heritage is inalienable during the owner’s lifetime.
Legal Universality
The totality of a person’s assets, rights, obligations, and charges constitutes a legal universality. This can be a universality of fact (independent entity) or a universality of law (covering goods for an economic purpose).
Twelve Principles of Heritage-Personality (Aubry and Rau):
- Heritage is a set of active and passive elements with monetary value, forming a legal universality.
- Heritage and person are inextricably linked.
- Heritage has subjective (future acquisition) and objective (current assets) aspects.
- Every person must have a heritage.
- Heritage is indivisible.
- Heritage is inalienable during the owner’s lifetime.
- Heritage is an abstract legal universality, independent of its elements.
- The person-heritage relationship is similar to owner-thing relationship.
- Heritage acts as an implicit pledge to creditors.
- Unsecured creditors have equal priority.
- Heritage transmission can be integral (inheritance) or partial.
- Legal universality protects heritage through actions for unjust enrichment, inheritance demand, and return of property.
Economic and Non-Property Rights
Property rights are subject to monetary assessment, while non-property rights are not.
Dualist and Monistic Doctrines:
- Dualist: Absolute separation between real and personal rights (French School of Exegesis, Bonnecase’s economic theory).
- Monistic: Identity of real and personal rights (Ortolan, Planiol, Demogue’s personalist thesis; Gaudemet, Jallu, Gazin, Saleilles’ objectivist thesis).
- Eclectic: External identity, internal differentiation (Aubry, Rau, Baudry Lacantinerie).
Elements of Real Right (Classical School):
- Existence of legal power.
- Direct and immediate exercise of power.
- Economic nature of legal power.
- Absolute validity against third parties.
Personal Right (Credit)
A legal relationship allowing the creditor to demand performance from the debtor.
Elements of Personal Right:
- Legal relationship between active and passive subjects.
- Creditor’s power to demand debtor’s performance.
- Purpose: Performance or omission of moral or economic character.
Key Differences Between Real and Personal Rights:
- Real right is a legal power; personal right is a right to obtain or require.
- Real right applies directly to a thing; personal right aims at debtor’s performance.
Preference in Real Right:
- First in time, first in right (within the same category).
- Higher-grade real rights have preference over lower-grade ones.
Bonnecase’s Theory
Advocates absolute separation (legal and economic) between real and personal rights, based on appropriation of wealth and provision of service.
Personal and Objectivist Theories
- Personalist: Real and personal rights have the same nature (Ortolan, Planiol, Demogue).
- Objectivist: Personal rights have the same nature as real rights (Gaudemet, Jallu, Gazin, Saleilles).
Eclectic Classical Theory and Personality
Real right is a legal power exercised directly on a thing, effective against all third parties. Real obligation (propter rem) differs from personal obligation.
Different Real Obligations:
- Obligations correlating with rights of use or security.
- Obligations due to neighborhood or contiguity.
- Obligations arising from co-ownership.
- Obligations imposed on the owner of rights of use for the benefit of the owner of the subject matter.
Bonnecase’s Theory on Real Obligations:
- Real requirement is a single notion.
- Propter rem obligation differs from personal credit and in rem scripta obligation.
- Real duties differ from easements.
- Bilateral structure of law applies to real obligations.
Nature of Accessory Real Rights Obligations
These obligations are ancillary to certain powers and correlated with rights of another subject.
Nature of Real Obligations in Co-ownership
Co-ownership involves two types of propter rem obligations: those relating to property in general and those inherent in undivided ownership.
Autonomy and Duality of Personal and Real Obligations
Personal obligations are autonomous, independent of things, while real obligations are linked to specific things.
Thing Provision in Real Obligations:
- Transfer of ownership.
- Temporary transfer of use or enjoyment.
- Restitution of another’s thing or due payment.
Liability in Real and Personal Obligations
- Personal obligations: Debtor liable with all present and future assets.
- Real obligations: Liability limited to the value of the thing.
Transmission of Real and Personal Obligations
- Personal obligations: Transfer requires creditor’s consent.
- Real obligations: Transfer occurs with the transfer of ownership or possession.
Sources of Real and Personal Obligations
Contract, unilateral declaration of will, unjust enrichment, business management, tort, strict liability, and professional risk.
Goods
Definition of Goods
From a legal standpoint, goods are anything that can be appropriated.
Legal vs. Economic Sense:
Legally, goods are appropriable things. Economically, goods are anything useful to humans.
Criteria for Classification of Goods:
- Tangible/intangible.
- Movable/immovable.
- Corporeal/incorporeal.
- Public/private.
Classification of Tangible Property:
- Expendable/non-expendable.
- Consumable by first use/non-consumable.
- Owned with known owner/abandoned or unclaimed.
Movable and Immovable Property:
- Immovable: Properties by nature (fixed), fixtures (accessories necessary for property use), properties by destination (rights in property).
- Movable: Furniture by nature, by determination of law, and by anticipation.
Public and Private Property:
- Public: Common-use goods, goods for public service, state’s own property.
- Private: Owned by individuals.
Real Rights
Definition of Real Right
Legal power exercised directly and immediately on a thing, effective against all third parties.
Property
Legal power to seize a tangible asset entirely, effective against a universal taxpayer.
Comparison of Real Right and Ownership:
- Both are legal powers exercised directly and immediately.
- Ownership applies to tangible assets; other real rights may apply to intangible assets.
- Ownership implies full control; other real rights imply partial control.
- Both involve a legal relationship between the holder and a universal taxpayer.
Means of Acquiring Property:
- Universal/particular title.
- Original/derivative.
- Onerous/gratuitous.
Acquisition by Universal Title:
Transfer of wealth as a whole (e.g., inheritance).
Acquisition by Original Title:
Acquisition of unclaimed property (e.g., first occupancy).
Acquisition by Onerous Title:
Acquisition in exchange for payment or service (e.g., purchase, exchange).
Acquisition of Movable Property:
- Transfer of existing property.
- Universal succession (inheritance).
- Usucapion (adverse possession).
- Appropriation of ownerless things.
- Accession (joining, mixing, specification).
- Separation (fruits).
- Silence of owners (found things).
- Treasure trove.
- Actual subrogation.
- Act of the state (e.g., expropriation).
Other Means of Acquiring Property:
- Contract.
- Inheritance.
- Prescription (limitation).
- Law.
- Occupancy.
- Accession.
- Judicial award.
Extension of Property Rights:
Includes domain over fruits, products, subsoil, and airspace.
Action for Repossession:
Legal means to reclaim possession of owned property held by another person.
Co-ownership
Undivided ownership of a thing or right by two or more persons.
Forms of Co-ownership:
- Voluntary/forced.
- Temporary/permanent.
- Regulated/unregulated.
- Specific assets/universality of assets.
- Inter vivos/mortis causa.
- By legal fact/by legal act.