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Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes
Ben W. F. Depoorter, Ghent University
Francesco Parisi, George Mason University
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.
SUGGESTED CITATION:
Ben W. F. Depoorter and Francesco Parisi,
"Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes"
(May 22, 2003).
Yale Law School.
Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy Working Paper Series.
Paper 284.
http://lsr.nellco.org/yale/lepp/papers/284
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