The Comparative Method in Property Law

Abstract

Property law systems diverge and there are many reasons for this. This does not only apply to common law and civil law systems (or Nordic or mixed legal systems), but basically for all systems of property law. Property lawyers can approach these differences with different methods. One of these methods is the comparative method, of which the functional method of comparative law is the most well known and used. That method is, depending on the ‘agenda’ of the comparative lawyer, used to find similarities or to find differences. Generally the method is used to (i) improve the own national legal system, (ii) to provide an overview of systems, (iii) to understand vertical dynamics, such as the influence of EU law on national property law, or (iv) to provide the basis to develop something completely new, such as a Common European Sales Law.Comparative lawyers compare equivalents in the systems they are investigating. They find these equivalents generally by looking for functionally similar concepts or institutions. For example to compare the right of ownership in civil law to the fee simple in common law as these are both primary rights. The danger of using this method is that, depending on the viewpoint of the comparative lawyer, it is very easy to find similarities and differences. It is therefore important for the comparative lawyer to make his or her intentions explicit. Although the comparative method is losing ground to other approaches, which enable a more normative approach to law, it remains of relevance, especially in light of the vertical dynamics that exist in multi-level systems such as the European Union.