Enforcing the Right to Property Properly
| Author | Siewert D. Lindenbergh |
| Published date | 01 March 2010 |
| Date | 01 March 2010 |
| DOI | http://doi.org/10.1177/1023263X1001700104 |
| Subject Matter | Article |
48 17 MJ 1 (2010)
ENFORCING THE RIGHT TO
PROPERTY PROPERLY
An Essay on the Shi from Injunctive Relief
to Mere Compensation
S D. L*
AB ST RACT
Of all patrimonial r ights, the right to property is con sidered by far the most powerful. e
owner is entitled to the exclusive use of the object, the word ‘use’ is understood in a very
wide meaning and the owner has a strong position as far as enforcement of his right is
concerned. He can reclaim the object from anyone (revindicatio), he is u sually entitled to
both positive injunctions (removal of objects from his premises) and prohibitory injunctions
(in case of trespass). And nally, when th e owner has to put up with inf ringements, he i s
entitled to damages. ere seems, however, to be quite a gap between the position of the
owner who is entitled to an injunction and that of the owner who has to bear infringements
and is only entitled to damages. In the rst situat ion (injunction), the owner can vindicate
his right according to a property rule which allows him to set the price for infringements.
In the second case (damages), the owne r is le to compensatory standards . In this paper,
the consequences of the substantial shi in protection from an injunction to (dierent
levels of) compensati on will be illustrated with examples from the modern civi l code of e
Netherlands.
Dutch law oe rs examples of die rent regimes of protection of the owner: a rather strong
position (injunctive power) in the area of neighbour law, a relatively strong position in case
of expropriation (a generou s level of compensation), a typical liabi lity rule (compensation
according to ob jective standa rds) when a pressing societal interest prohibits injunctive
relief, and a weak level of protection in case of a limited rest raint of the owners capac ity in
case of a public developm ent plan (only ‘fair’ compensation). ese ex amples, which show
a sliding scale of levels of protection, raise the question whether the right to proper ty is
* Professor of Private L aw at the Rotterdam Inst itute of Private Law, Erasmus Universit y Rotterdam, the
Netherland s.
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