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Fragmentation of property rights: a functional interpretation of the law of servitudes.


Abstract

This Article argues that new developments in economic theory provide a novel rationale for the dichotomous approach of land use arrangements in the law of servitudes that is almost universal in the fresh Western legal tradition. The treatment of certain land--related promises as enforceable contracts between parties, rather than real rights that move swiftly with the land in perpetuity, can be explained as an attempt to minimize the transaction and strategic take away froms resulting from dysfunctional property arrangements. As demonstrated through the Authors, benchmark doctrines similar as 'touch and concern,' and the civil law principles of 'prediality' and numerus clausus, have


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