Right of the goods in France

Distinction of the various goods

Personal properties and real estate values

This distinction is inherited the Roman law, taken again by the Ancien right, to finish in the Civil code French in opening of the book second, article 516 laying out that “All the goods are movable or real” .

Movable property

At the time of the drafting of the Civil code French (1804) only the real estate values had a value, from where the Latin proverb of which the right is fond of delicacies LMBO mobilis, LMBO vilis . Nowadays, the pieces of furniture acquired a real pecuniary value, which it is about tangible asset (works of art, floats maritime…) or incorporeal (partnership share of company, Patent…).

Article 527 of the Civil code considers two categories of pieces of furniture: movable by nature and movable by determination of the law . It is also necessary to approach the jurisprudential assumption of the movable by anticipation .

Pieces of furniture by nature

First of all, any good is movable which can “be transported of one place to the other” (art 528 of the Civil code), that it is by its own means (car) or by an external intervention (table).

The animals are regarded as movable property (article 528), with the reserve of the animals which would be used for the culture of funds (article 522, subparagraph 1^er).

Pieces of furniture by determination of the law

All the incorporeal assets are pieces of furniture, even if they relate to a real estate value. The credits, partnership shares, intellectual property laws are thus movable…

The example of the Goodwills is from this interesting point of view. It is indeed a personal property intangible, composed of various elements, like trade name, the sign and especially the customers. It thus should absolutely be distinguished from the building, the room where the trade is installed. The owner of the funds can be different from the owner of the building, it will rent the building then.

Pieces of furniture by anticipation

The mobilization by anticipation aims at real estate values by nature which have the role to become personal properties.

Thus the uncropped harvests, or the trees to be cut down could be qualified pieces of furniture. These a little particular assumptions remain however delicate.

Real estate values

A good can be real because of its nature, its destination or its object. On the other hand, the French Jurisprudence estimated that the nature of the good cannot result from a convention (Case. civ. 3^e, June 26th, 1991).

Buildings by nature

By nature the goods are real which cannot be moved and are not intended to be it. Thus, within the meaning of article 518 of the French Civil code, “the plots of land and the buildings are real by their nature”.

In the same way, by nature “hanging harvests by the roots, and the fruits of the trees are real” (article 520, subparagraph 1^er). However, once the detached fruits or the cut grains, those are movable, even if they are not collected (subparagraph 2). It is advisable however to hold the assumption of the mobilization by anticipation , uncropped harvests and trees to be cut down, which become movable then.

Buildings by destination

They are the goods which by their nature are movable but are included in the category of the real estate values because of the close relation which binds them to a real estate value. One finds in this category:

pieces of furniture assigned to the exploitation of funds , for example the farm equipment, machines of a factory, radiators of a house…

the organ also have, pursuant to the law of December 31st, 1913 on the historic buildings, the statute of buildings by destination.

the pieces of furniture attached to perpetual residence , i.e. when they cannot be detached without being deteriorated or without deteriorating the part of the funds to which they are attached (article 525). In the same way, the objects having been the subject of a special installation (for example statue placed in a niche envisaged for this purpose), are buildings by destination, still even as they can be withdrawn without deterioration (article 525, subparagraph 4).

Buildings by object

Lastly, article 526 of the Civil code lays down the category of the real estate values by “the object to which they apply”. This article considers three assumptions:

the usufruct of the real things;
land constraints or services;
the actions which tend to assert a building;

Incorporeal asset and tangible asset

The incorporeal assets are the rights on a tangible asset (dismemberments of the property right) or an amount of money (Droit of credit) and the objects without material support (partnership share of company, royalty).

The tangible goods are those which one can physically seize, as well as the property right on these goods (by legal fiction).

Other distinctions

There exists of other distinctions of less importance. Certain goods are consumable i.e. they are destroyed when they are used (food). Others are unquestionable bodies , in opposition to the things of kind, also called ''' fungible goods '''. A disc is a thing of kind, it can be replaced by another identical. A table of a large Master is an unquestionable body, it can be substituted by no other well.

NB: But one can specify that a good is a right, that is to say the bond between that which will be called the owner of a thing and this same thing, but one confuses in practice well (a right) and thing (on which a right is exerted), thus a good is by nature incorporeal since it is acted in fact of a right and not of a thing, which thing could it be body or incorporeal. (fbjo)

Rights in rem

Classification

The right realities principal relate to the materiality even of the thing.

Are included/understood in this category the property and its dismemberments (usufruct, naked property, surface, emphythéose, right of use) and the constraint.

The right realities additional are additional rights in rem to a credit; they are guarantees: valuable securities (reinforces the situation of the recipient but weakens that of the owner). The typical example is the Hypothèque.

Attenuation of the distinction : the property, while becoming a safety, becomes an additional right in rem and does not confer then any more on its holder of being able on the thing.

(Full) the property

The Property right is the widest right which one can have on a thing as long as one does not make of it a use prohibited by the law. It is called freehold to distinguish it from usufruct and naked the propriété.
It breaks up into

right of use ( usus )
right to the fruits ( fructus ): rents, harvest of fields, dividend of an action…
abusus : right to transform the thing, to destroy it…

Usufruct

The naked property

The naked property is the freehold burdened with a right of Usufruit. The bare owner cannot thus use of the thing nor to perceive the fruits of them. At the end of usufruct, he will become full owner.

The mortgage

The Hypothèque is a right in rem of guarantee which makes it possible to the secured creditor to put the good burdened with mortgage on sale in order to recover its credit.

Right of use

The right of use is, as its name indicates it, the right to use of a thing. To the difference of usufruct, it does not give right to the fruits.

The Constraint

See also: Constraint, Constraint of public utility

General information

The constraint is a service which renders being used funds (= ground) known as for funds known as dominating .
It is indeed a service of funds at funds, whatever the owners of these funds. It is thus well of a right in rem (on a thing) and not about a right of credit (right to require a person to make or not to make a thing).
There are legal constraints and constraints " established by the fact of the homme".

Some examples of constraints

Right of way : it is about the access authorization to funds by another fonds.
ex: When a house is wedged (surrounded by private properties, without any access to a public way), for example, constraint of required passage an owner to accept that its neighbor (of which the ground is wedged) profits from a right-of-way on his ground in order to join the public highways.
Constraint of sight : it can nothing be made on the funds being useful which would undermine the sight from which profits the funds dominating.
Constraint of flow : right to let naturally run out water on the funds being useful.
Constraint of drawing up : access authorization to funds with the close owner of the funds, to use of a puit, a fountain, a tap… A constraint of drawing up involves of right a right of way, which cannot be refused by the being useful owner of the funds.

Other rights in rem

right of surface : is a property right which relates only to constructions, not on the ground.
the right of emphythéose existed in Roman law and exists in Belgian right (was added for the Dutch period) like in French civil law. The emphythéote has, like the usufructuary, right to the fruits and with use but it has in more the right to transform the good only to improve it.

See too

Public domain in public law French
Releasor
Glossary of the real estate

Random links: