Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes

44 Pages Posted: 22 May 2003  

Ben Depoorter

University of California Hastings College of Law; Ugent - CASLE; Stanford CIS

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Abstract

This Article argues that recent developments in economic theory provide a new rationale for the dichotomous approach of land use arrangements in the law of servitudes that is almost universal in the modern Western legal tradition. The treatment of certain land-related promises as enforceable contracts between parties, rather than real rights that run with the land in perpetuity, can be explained as an attempt to minimize the transaction and strategic costs resulting from dysfunctional property arrangements. As demonstrated by the Authors, benchmark doctrines such as touch and concern, and the civil law principles of prediality and numerus clausus, have served as instruments to limit excessive or dysfunctional fragmentation of property rights. Section I of this Article describes the dichotomous approach of land use arrangements in the law of servitudes in Common Law and Civil Law systems. Section II provides a functional explanation of the legal rules in this area. Section III documents and explains the changing approach to land use law in both Common Law and Civil Law jurisdictions. Section IV discusses the role of property law in a changing economy. Section V reflects on the appropriate scope of freedom of contract in the law of servitudes. Section VI concludes.

Keywords: property law, servitudes, fragmentation, anticommons

JEL Classification: K10, K11, K19, D62, D70

Suggested Citation

Depoorter, Ben and Parisi, Francesco, Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes. Global Jurist Frontiers, Vol. 3, No. 1, March 25, 2003; George Mason Law & Economics Research Paper No. 03-24; Yale Law & Economics Research Paper No. 284. Available at SSRN: https://ssrn.com/abstract=409380 or http://dx.doi.org/10.2139/ssrn.409380

Ben Depoorter (Contact Author)

University of California Hastings College of Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Ugent - CASLE ( email )

Universiteitstraat 4
Belgium

Stanford CIS ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Francesco Parisi

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

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