Ownership and liability

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

2. 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?

3. 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

4. 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 - 1999: the ownership of a good extends over the image of a good - 2001: owner of a good must prove a “certain nuisance”

5. Conflicts: only one right of ownership (2) - 2004: “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

6. 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

7. 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

8. 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

9. 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?

10. 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)

11. 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?

12. 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