Private Law Theory

ABSTRACT
The law of property plays a fundamental role in our society. Based on the fundamental principles of freedom of ownership and free circulation of goods, property law long played a facilitating role for the construction of the market. The increased importance of the state has also meant that there are many more regulatory aspects to property law. At the same time classic private-law property law has not really managed to incorporate this state influence and property relations often remain to be defined by a relation between two private parties in respect to an object. Over the past decades, under strong influence of neoliberal economic ideology, the state has retreated in many places, leaving a large amount of autonomy for private parties to arrange their own affairs.

A part of the response to this lies in practical solutions. The energy transition, for example, brings commons-initiatives with it in which private parties arrange for their own electricity or heat supply. Apartment owners collectively take action to make their buildings more sustainable. Although these initiatives should of course be encouraged, there is a more systemic question on the organisation of property law that must also be addressed.

Resilient Property Theory (RPT) can provide a methodology to approach this and enable us to imagine alternative futures when property law contributes to solutions instead of causing issues. Such an approach allows not only for the reinterpretation of existing rules but can also provide a framework for new (elements of) property law. Reimagining a resilient property law in which there are not only rights, but also obligations of responsibility may offer a way forward. In this contribution I will seek to explore the use of RPT as a methodology to approach a property law in which holder of property rights also hold (positive) obligations.

Akkermans, Bram, Obligations in Resilient Property Theory – Using single system analysis to construe positive obligations (June 24, 2024), to be published in Lorna Fox O’Mahony, Marc Lane Roark, Sue-Mari Viljoen and Ting Xu (eds), Resilient Property Theory and Housing (2025) forthcoming.