Commercial and Civil Law

Seminar No. 3
Absolut rights
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office: D 411
e-mail: reichert@pef.czu.cz

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 Seminars:

• Seminar 1. Introduction to Czech Private Law

• Seminar 2. Civil legal relations
• Seminar 3. Absolute rights
• Seminar 4. Relative rights (Obligations)
• Seminar 5. Liability for Damage
• Seminar 6. Law of inheritance
• Seminar 7. Essentials of family law
• Seminar 8. Civil proceedings

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 Seminar outline:
• Absolute rights
– Features
– Things
– Right of Ownership
– Co-ownership
– Possession
• Absolute rights to things owned by another person
– Easements
– Pledge
– Right of retention
– Building right

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 Absolute rights

- subjective rights with corresponding general obligation

of all other subjects not to infringe such rights

- negative nature of obligation – to refrain from acting

- effective against all subjects (erga omnes)

- only law can determinate, which rights are absolute

- numerus clausus (closed enumeration)

- peremptory (mandatory) regulation

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 Absolute rights

Rights in rem Inheritance law

(rights related to things) (6th seminar)
- important part of property rights
- complete or partial legal dominion over things
- object of rights is a THING – individually determinated (not
genericlly, if not specified)

Towards own things Towards things owned by other persons

- Possesion - Easements (servitude, real burdens)
- Ownership - Pledge
- Co-ownership - Right of renetion
- Rights on intellectual property - Building right

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 Things
• Positive & negative definition

– Positive:
• „Thing in legal sence is everything that differs from a person and
serves the needs of people.“ (§ 489 CivC)
• Controllable natural power in trade (e.g. electricity, heat)

– Negative – what is not considered as thing in legal sense

• human body or it´s parts (even if separated form body)
• living animal – senses endowed creature
- provisions on things are used, if it´s not againts it´s
nature as such creature

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 Things
• Value of thing
– usual value - determined in money = it´s price
– extraordinary value – special condictions or popularity
• Fruit
– what thing provides due to it´s nature
– with man´s action or without it
– e.g. crop on field, animal cub
• Benefeit
– „legal fruit“
– what thing provides due to it´s legal nature
– e.g. Interest, rent

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 Categories of things
• Corporeal
– controllable part of world
– separate subject
– can be touched
– e.g. plate, cups, cars, hard
copy of the book
• Movable
– everything, which is not
considered as immovable
• Incorpoeal
– human created category
– without material substance
– rights and other things, if their
nature admits so
– software, know-how, author´s
copyright to book
• Immovable
– land and unerground structures,
with specific designation
– X building is part of the land
(usually) – superficiary
principle
– rights to abovmentioned
• easements, building right…
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 Categories of things
• Consumable
– it´s consumed if used as usual
– e.g. toothpaste, food
• Substitutable
– can be replaced by other thing
of the same kind (not in
economical sense)
– e.g. apple, candles
• Unconsumable
– losing their utility value by using
slowely; (they wear slowly)
– e.g. shoes, laptop
• Unsubstitutable
– can not be replaced
– unsubstitutability depends on
human will (persuation)
– e.g. work of art, Lincoln´s Bible,
grandfather´s watch
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• Generics
Categories of things
• Individually determined
– determined generically
– determined by specific feature
– by quantity, measure, weight
– e.g. car with licence plate 1A3
– e.g. petrol, flour… 67 93, Peter´s cellphone…

• Realistically divisible • Realistically undevisible

– division does not lead to its – can not be divided without it´s
destruction destruction
– e.g. 4 kg of sugar, orchard – e.g. motor vehicle, house

One thing falls in more categories of this pair-based concept:

• Kieth Richards´ signed quitar - corporal, movable, unconsumable, unsubstitable,
individually determined and realistically undevisible
• Money – corporeal (as coins)/incorporeal (on account), movable, consumable,
substitable, generic, realistically divisible

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 Categories of things
• Bulk thing
– set of things, belonging to one person
– concidered as one thing and as such having a common name
– e.g. bookcase, herd, butterfly collection, business plant
• Accessory
• Component part – meant to be used with main thing in
actual or legal sense
– it´s not separate thing
– not autonomous in legal sense
– can´t be parted from the thing
– shares the legal fate of main thing,
without it´s devaluation
unless otherwise is agreed
– removal would make damage to
– e.g. sparewheel, vehicle
thing – factual and functional registration card, key to the cabinet
– e.g. wheels on the car
– according to CivC the land and
the building built on it

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 Ownership
- most important absolut right
- one of fundamental human rights
- posititve aspect - right to control the thing by own power,
independent on power of other person
- negative aspect – right to prohibit direct influence of other person
- object of ownership right – thing in legal sense
- content – owner is entitled (within legal limitation) to:
a) HOLD
b) USE
c) TAKE fruits and benefits
d) DESTROY

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 Acquisition of Ownership
- origin of the ownership right of a person, who hasn´t been owner of the
thing, because someone else was or there was no owner
Original Derivative
- independent on the will of legal - transition of ownership from legal
predecessor predecessor

• Endurance (by passage of time) • Contract (purchase, donation)

• Increment (fruit on the tree) • Decision of authorities (expropriation,
• Occupation (seizure of noone´s thing – forfeiture)
wild animal) • Inheritance
• Creation (carpenter makes chair) • By law (not often, not apt – ownership of
• Mixing (permanent, can´t be reversed; buildings of CZ Parliament)
with loose or liquid substances )
• From step-owner (not the owner –
public auction, from unrightful heir)
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Noone´s thing X Lost thing

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 Restriction of Ownership
- General clause: owner shall not seriously infringe the rights of
other persons above the local contitions
= neighborly immissions – intrusion of any kind from neighbor´s
property (smoke, water, sound, smell, dust, light, shade, shock,
animals…)
• Restriction of ownereship
– Expropriation
• only in public interest
• For compensation
• The result can not be achieved otherwise
– Using thing out of emergency
• State of emergency / important public interest
• For necessary time only
• For compenstation
• Return of the thing unharmed (or compensate damages)

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 Restriction of Ownership
• Restriction of ownereship
– Threat of neighbouring land or building
• relieving if from necessary lateral support – excavations on the border (without
support)
• prohibition of planting trees near to common border

– Entering on lands or in constructions

• Owner is obligated to allow entry for necessary maintenance of neighbouring
property
• Pursuing of escaped animals of things

– Necessary way
• Ower neighbouring property, if own property can not be achieved otherwise
• For compensation
• Can be imposed by the decision of the Court of justice

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 Co-ownership
- One thing is in the ownership of two or more persons at the same
time
– Joint (common) property of spouses (seminar 7 – family law)
• No shares, both spouses are full owners of the thing

– Joint ownership
• Co-owners do have ideal shares
• Share represents the amount of participation of co-owners on deciding about thing and
amount of rights and obligationes resulting from co-ownership
• Share size – according co-owners contribution to the acquisition of the thing
- according to co-owners agreement
- if non of the above – shares are equal
• Decision making – co-owner has allways the right to participate (if denyed – invalidity)
- quorums regarding the importance of cecision (1/2, ¾, all)
• Cancellation - mutual agreement; settlement
- decision of court – assigns to one (compensation)/public auction
• Pre-emptive right - co-ownership of imovables

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 Extinction of Ownership

• Absolut • Relative
– Ownership ceases, no one else – Ownership is acquired by other
acquires it subject
– e.g. destruction, consumption – e.g. sele, inheritance

• By the will of owner • Independent on owner´s will

– Contract (purchase c.) – Extinction of thing
– Abandoning • Legal event - earthquake

– Consumtion (food) – Death of owner

– Destruction (burn, tear) – Endurance
– Decision of authority
• Expropriation, confiscation

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 Protection of Ownership
Legal means:
- Action for extradition / eviction
- unauthorised detention of thing / using of land (building)

- Negative action
- to restrain from unauthorised acting or to restoration to original condition
- restrain neighbour immissions, stop of construction building

- Action for designation

- declaration of existence / non-existence of ownership right

Self-help
- if the right is infringed and help by authorities (police) woun´t be fast
enough

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 Possession (x Detention)
Possession
- factual conrol of the thing
- + intent to treat thing as own
- one of the rights of owner, indication of ownership
- protetction of possession – self-help / judical – swift, informal (short periods)
1) Proper – valid legal title (not infringe possesion of someone else/will of
predecessor/decision of authority)
2) Honest – conviction of person that is excerecising right that belongs to him/her
3) Rightful – not if P. took by own powers, crept in P. in secret / with trickery
It´s presumed, that P. is Proper, Honest, Rightful. Only such Possession can lead
to ENDURANCE.
Detention
- factual conrol of the thing
- X the intent to treat thing as own is missing - e.g. lessee, borrower

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 Absolute rights
in the ownership of other person

• Easements
• Pledge
• Right of retention
• Building right

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 Easements
- restriction of owner (typically of imovable thing) in favour of another
- easement is bound with some thing (in rem) or belong to particular person
- can arise : contract, by inheritance (last will, agreement of heirs, inheritance
proceedings), by endurance, by law, by decision of authority
- ceases by permanent change of thing, agreement, lapse of time, personal
easement ceasis with death of entitled person

• Servitudines • Real burdens

– Owner has the obligation of – Obligation of active nature
passive nature – To give / To do st.
– Allow st. / Refrain of st.
• Support of construction
• Leading of utilities (electric cables)
• S. of path / way / herding cattle
• S. of water spill
• S. to use st. / appartment
Etc…
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 Pledge
- reinsurance of debth and its accessories (interest, contractual fine)
- can be realised if debtor does not fulfill obligation properly and on
time – realisation only by selling pledged thing
- effective against everyone (even later owner, if pledged thing sold)
- object of pledge – everything which can be traded with
- Movable, imovable (mortgage), set of things, thing to be created in future…

- Arise of pledge
- written agreement
- court decision on inheritance settlement
- decision of court or authority in other matters
- by operation of law
Hand over of pledged thing! (movable)
Entry in Pledge Registry
Entry in Land Register (imovable)
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 Right of retention
- Cease of pledge
- Lapse of period of time for which thing was pledged
- Written agreement between pledgee and pledger / owner and pledger
- By ceasing of pledge-secured obligation (fulfillment, other reasons)
- Extinction of pledged thing (pledger has right to ask for other pledge)
- If pledger / owner pays pledgee the usual price of the pledge
- Return of pledged thing
- Pledger gives up of pledge

- By pledging the pledge-secured right = sub-pledge (similar features)

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 Retention right
- who has the obligation to give the thing up can keep it to secure
the claim after due time
- Object – only movable thing which belongs to debtor
- Arise of retention
- one-sided act of creditor
- creditor is obligated to inform debtor about thing´s retention
- Thing can not be reteined if creditor is not authorised holder
- got the thing by force or with trickery
- Creditor is obligated to take care of thing with the care of proper
manager
- Creditor is entitlet for reimbursement of costs spent on
maintenance

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 Retention right
- Cease of retention

- Extinction retained thing

- Creditor gives up of retention right (one-sided / agreement with owner)
- Thing gets permanently out from creditors power
- If additional security is payed

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 Building right
- Right of builder to have the construction on the property of
another owner
- Arises by entry in Land Registry
- Only temporary (max. 99 Y; can be endured for max. 40 Y)
- can be prolonged, but still only up to 99 Y in total
- Building right itself is considered as imovable thing
- Arises – by contract / by endurance / by decision of authority
• When ceases
– building becomes part of the land
– owner of land becomes the owner of building (provisional reg.)
– if BR was for remuneration = owner has to compensate the builder
- Compensation is ½ of value of the building in time when BR ceased
- Provisional regulation (regarding amount of compensation or compensation itself)

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Thank you for your attention.

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