Legal Certainty in Real Estate Transactions

This comparative research was triggered by the assessment of property registration law published in the World Bank Doing Business reports (DB). The international and interdisciplinary team aimed to assess how legal certainty was imagined and put in practice in French and English law, using commercial real estate as a case study.
Editor(s):
Bertrand du Marais, David Marrani
Series:
Ius Commune Europaeum
Volume:
147
book | published | 1st edition
August 2016 | viii + 134 pp.

Paperback
€48.-


ISBN 9781780682983


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Details

This comparative research was triggered by the assessment of property registration law published in the World Bank Doing Business reports (DB). The international and interdisciplinary team aimed to assess how legal certainty was imagined and put in practice in French and English law, using commercial real estate as a case study. Not only this study identifies the economic impact of the law in both jurisdictions, it also looked at the practitioners’ functions in the dealing with commercial real estate transactions. In other words, it analyses the topical position of practitioners such as the French notaires and the role of solicitors in England.

Nowadays, the profession of notaires is confronted to numerous challenges. For instance, nationality requirement for its access, has been ruled by the ECJ as contrary to the freedom of establishment and art. 49 TFEU and not justified by "the exercise of public authority".
In this study, the authors argue that the actual nature and the quality of the work done by the practitioners should be considered as well as financial cost and delays. They also argue that a liberalisation of professions such as civil law notaires would have very little impact on the cost associated with doing business. As a matter of fact, both the English and the French mechanisms are very similar in their objectives and outcome even though they handle the same transaction differently, because of the culturally different relevant angles.

With contributions of Jean-Sylvestre Bergé, Camille Bourdaire-Mignot, Aurore Chaigneau, Bertrand du Marais, Youseph Farah, Philippe Frouté, Marios Koutsias, Régis Lanneau, Peter Luther, David Marrani, Alan Moran and Marie-France Nicolas-Maguin.

Chapters

Contents (p. 0)

Introduction. Comparing Legal Certainty in France and England (p. 1)

Introduction. Introductory Remarks on Comparative Law and Interdisciplinarity (p. 9)

PART I. THE IDEA OF LEGAL CERTAINTY. A. THEORETICAL APPROACH

What is Legal Certainty? A Theoretical Essay (p. 19)

PART I. THE IDEA OF LEGAL CERTAINTY. B. PRACTICAL APPROACH

Contractual Centainty under English Contract Law (p. 37)

Comparing Company Law (p. 45)

PART II. LEGAL CERTAINTY IN PROPERTY TRANSACTION: A COMPARATIVE APPROACH

How to and why measure the Efficiency of Real Estate Transactions in France? (p. 67)

Overview of how a Real Estate Transaction is Conducted in France (p. 77)

Property Transactions in English Law: General Principles (p. 83)

Commercial Leases in English Law (p. 95)

PART III. MEASURING LEGAL CERTAINTY

Introductory Remarks on Legal Security: the Approach of French and European Law (p. 103)

An Assessment of Theoretical Proposals to deal with Heterongeneous Small Samples (p. 109)

Conclusion. Comparative Law, "Economic Attractiveness of Law" and Legal Certainty: Some Concluding Remarks from a Pilot Project (p. 121)

About the series:

Ius Commune Europaeum

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The ‘Ius Commune Europaeum’ series focuses on the common foundations of the legal systems of the Member States of the European Union. It includes horizontal comparative legal studies as well as studies on the effect of EU law, treaties and international regulation within the national legal systems. All substantive fields of law are covered.

The series is published under the auspices of METRO, the Institute for Transnational Legal Research at the Maastricht University.

Guidelines for the submission of a manuscript or proposal can be found here.

Editorial Board
Prof. Dr. J. Smits (chair - Tilburg University, the Netherlands)
Prof. Dr. M. Faure (Maastricht University and Erasmus University Rotterdam, the Netherlands)
Prof. Dr. E. Vos (Maastricht University, the Netherlands).


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