Security Interests: A Secure Start for the Development of European Property Law

Abstract

In this paper it is examined if unification or even harmonisation of the law on security rights, both on movables, immovables and claims, is at all possible without (1) thorough analysis of the property law traditions in Europe, (2) study of the existing, albeit limited, acquis communautaire in the area of property law and (3) an overall framework of property law, in other words: a common frame of reference, as is now being developed with regard to particularly contract law. In my Van Gerven lecture European and national property law: Osmosis or growing antagonism? http://ssrn.com/abstract=995979 I answered question (1) already negatively. As to the acquis communautaire in the area of property law some research has been done and is now being published. It is on question (3) that I focus: the need to develop an overall framework of property law and what the constituent elements of such a framework should be. Several policy choices are being discussed: should more freedom of contract in the law of property be allowed?, is there a need for civil law systems to allow more flexibility with regard to their unitary concept of ownership?, should protection of ownership or protection of commerce have priority?