Optioneel Goederenrecht en Internationaal Privaatrecht (LPR) (Optional Property Law and Private International Law)
Sjef J. H. M. Van Erp
Maastricht European Private Law Institute; University of Maastricht - Faculty of Law
Maastricht University - Maastricht European Private Law Institute (M-EPLI)
January 10, 2011
HET GROENBOEK EUROPEES CONTRACTENRECHT: NAAR EEN OPTIONEEL INSTRUMENT?, M.W. Hesselink, A.A.H. van Hoek, M.B.M. Loos & A.F. Salomons, eds., pp. 105-124, Den Haag: Boom Juridische uitgevers, 2011
These are turbulent times for European property law. After decennia of relative calm, the publication of the Draft Common Frame of Reference (DCFR), which includes three books with model rules on property law, provides new impetus to the debate. Now that, especially with the publication of the Green Paper on policy options for European Contract Law for Consumers and undertakings, the discussion seems to focus on an optional instrument, the need to discuss the role of property law in such an optional instrument increases. The DCFR and the discussion on an optional instrument are carried out on the basis of the German law inspired strict separation between the law of obligations and the law of property (the Trennungsprinzip or principle of separation). This principle, which is certainly not adhered to in all member states, makes it possible to leave property law completely aside in the desire to solve contractual problems. This choice will lead to problems in legal systems that do not adhere to such a strict separation. Although it is relatively easy to refer property line to the outer field in the debate, there are strong arguments to at least consider including aspects of property law in an optional instrument. However, there are many, usually very fundamental, arguments against this.
Optional Property law can be created, but freedom to choose the applicable law in property law should be limited, besides to national law, to the European optional instrument. Member States will have to accommodate the rules of the European optional model into their national legal system to ensure stability and legal certainty, both inside property law as well as in insolvency law and private international law. It is possible, especially inrespect to security rights, to replace the national, often fragmented, system with the European system, which seems to be the direction taken with other international initiatives.
Note: Downloadable document is in Dutch.
Number of Pages in PDF File: 20
Keywords: european property law, draft common frame of reference, optional instrument, green paper
JEL Classification: K11Accepted Paper Series
Date posted: June 18, 2011
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