Study guide: Exclusions from Property

📋 Course Outline

1. Boundaries of Property
2. Legal Personality and Ownership
3. The Human Person as Property
4. Appropriable Human Attributes
5. Limits on Personal Property
6. Classical Common Things
7. Public Property and Common Things
8. Contemporary Commons and Shared Use

📖 1. Boundaries of Property

📝 Essential Points

📌 Property concerns goods, but persons and certain things remain outside its scope.

💡 Memory Hook

A person can own property, but cannot become its object.

📖 2. Legal Personality and Ownership

🔑 Key Concepts & Definitions

• Legal personality: The capacity to hold rights and to be attributed obligations.

★ Must-know

• In the subject-object relationship of property, a legal person is the subject and therefore cannot be the object of that property.

Further detail

• Legal personality allows a group to become one owner through a legal person, enabling it to own property without establishing collective ownership among its members.

📖 3. The Human Person as Property

🔑 Key Concepts & Definitions

• Personality rights: Subjective rights over elements of the human person, such as the body, image, voice, or private life.
• Human personality elements: Parts of a person that establish their individual distinctiveness, unlike the elements of legal personality that are common to all persons.

📝 Essential Points

• Medical and media developments have made some material or immaterial extensions of the human person detachable and capable of being legally exchanged.

📖 4. Appropriable Human Attributes

🔑 Key Concepts & Definitions

• Image: The visible dimension of that person, or their appearance, which modern capture techniques can detach from them.
• Voice: The personal emanation and sonic image of their personality, which can be captured by specific or similar techniques.
• Intimacy: Their secret sphere of life, which can be detached from them only intellectually as particular information.

📝 Essential Points

• Appropriable physical elements include:
  • organs
  • tissues
  • cells
  • other bodily products such as hair
  • sperm
  • breast milk

💡 Memory Hook

Imagine the body’s tangible elements beside the image, voice, and intimacy that can be detached only as information.

📖 5. Limits on Personal Property

★ Must-know

📌 The human body taken as a whole remains outside legal commerce, while personal goods are subject to highly restricted and regulated commerce.

📌 Under Article L. 1211-2 of the Code of Public Health, removing human bodily elements or collecting bodily products requires the donor’s prior consent, which may be revoked at any time.

Further detail

• When the law provides that personal goods cannot be the subject of a patrimonial right, their commerce is permitted only without payment.

• Under Article L. 1211-2 of the Code of Public Health, using bodily elements or products for a medical or scientific purpose other than the original one is possible unless the person was informed beforehand and objected.

• Article L. 1211-2 of the Code of Public Health prohibits, after the person’s death, using germinal tissues or cells for a purpose other than the original removal.

• The European Court of Human Rights refused to classify human embryos as goods in Parillo v. Italy, Grand Chamber, 27 August 2015, no. 46470/11. - CEDH, Parillo c/ Italie, 27 août 2015

• The voice, image, and private life may nevertheless be the subject of genuine contracts for payment.

💡 Memory Hook

The whole body stays outside commerce; detached personal attributes enter it only under strict limits.

📖 6. Classical Common Things

🔑 Key Concepts & Definitions

• Common things: Under Article 714(1) of the Civil Code, common things belong to no one by their nature and their use is common to all.

★ Must-know

• Traditional examples of common things are:
  • running water
  • the high seas
  • air
  • natural light

Further detail

• The principal motives for appropriating a thing are its utility and its scarcity.

📌 Article 714(2) of the Civil Code allows the law to regulate how common things are enjoyed in order to settle conflicts of interest and preserve their use for all.

• A work entering the public domain is not public property: after 70 years from the author’s death, heirs lose its economic rights of representation and reproduction but retain moral rights of disclosure, attribution, integrity, withdrawal, and repentance.

• First names and most surnames are common things, but a surname that has gained notoriety may become a distinctive sign detached from its bearer.

📌 French words are common things, but they may be partially appropriated as trademarks under the law, subject to the principle of trademark specialty.

💡 Memory Hook

Utility without scarcity → no need for exclusive ownership.

📖 7. Public Property and Common Things

★ Must-know

📌 Common things have no owner, whereas public property belongs to the State, a local authority, or a public establishment.

📌 Under Article L. 2111-1 of the General Code on Public Property, public property includes property assigned to the direct use of the public or to a public service, provided that service property has indispensable arrangements for carrying out its tasks.

Further detail

• The mass of seawater and non-domain watercourses are common things, whereas spring waters supplying public fountains, domain watercourses, and waterways taken as a whole are public property.

📌 Under Articles L. 2122-1 to L. 2122-4 of the General Code on Public Property, occupying public property requires authorization, and its use cannot exceed the limits of the public’s right of use.

📌 Occupation or use of public property is temporary, precarious, and revocable, and is generally subject to payment unless an exception applies.

• A municipal property leaves the public domain and enters the private domain after it is physically no longer assigned to public use and a municipal resolution records that change and declassifies the property.

📖 8. Contemporary Commons and Shared Use

🔑 Key Concepts & Definitions

• Commons: Goods deliberately removed from the market to reserve them for common use.

★ Must-know

• Elinor Ostrom argued that limited users concerned with a resource’s survival can manage it collectively and achieve optimal management. - Elinor Olström

Further detail

• Garrett Hardin argued in “The tragedy of commons” (1968) that an open-access pasture tends to deteriorate because each herder is encouraged to overexploit it without bearing the effort of protecting it. - Garett Hardin

• Examples of commons include:

  • fisheries
  • irrigation systems
  • pastures
  • free software

📌 Commons may involve shared exclusivity among several users or rights limited to certain uses of a thing, rather than unrestricted access for everyone.

• The legal classification of commons remains unsettled because they fall outside the Civil Code’s established categories and may encompass heterogeneous things such as free software and the Earth’s capacity to absorb waste.

💡 Memory Hook

Open access risks depletion; limited, concerned users can manage a resource collectively.

📊 Synthesis Tables

Common Things and Public Property