Ownership and liability Ius Commune Congress Maastricht 26th and 27th of November Thomas De Bie 1

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? 2

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 liability 3

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 : the ownership of a good extends over the image of a good : owner of a good must prove a “certain nuisance” 4

Conflicts: only one right of ownership (2) : “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 5

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 6

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 7

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 8

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? 9

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) 10

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? 11

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? 12