KORNPROBST (Michel) – THE CONCEPT OF EASEMENT IN PRIVATE LAW, Preface

KORNPROBST (Michel)

THE CONCEPT OF EASEMENT IN PRIVATE LAW, Preface by Jean Radouant

Édition :

Paris

Date :

1937

in-8, br., uncut, (cover faded and sun-faded on the spine, slight loss of paper on the spine), interior fresh, XV-332 p.

“Mr. Kornprobst (…) established the classification [of easements] in such a way as to show how they gradually diverge from the initial form, that of the easement attached to land and buildings. Undeniably, the modern easement readily departs from this; the link between it and the property becomes increasingly tenuous, subtle, and sometimes fictitious. This evolution clearly demonstrates the advantage of organizing as an easement a benefit obtained from a third party in the exercise of any activity whatsoever. But is there not at least a limit to the possible extensions in the separation of obligation and real right? The texts of the Civil Code define it by affirming, repeatedly and categorically, that an easement can only be established for the benefit of one property and against another. What remains of this principle? It was based, in part, on fears of a return to the political servitude of the feudal system.” (…) Perhaps justified a century ago, they now seem rather anachronistic. Furthermore, the easement may be accompanied, at least incidentally, by services to be performed. Finally, through the land involved, it is always individuals who benefit or suffer from it. Thus, Mr. Kornprobst's essential task was to determine the elements of reality and personality that intertwine in the modern easement. Perhaps the most interesting aspect is having shown to what extent the intervention of the holder, the consideration of their needs and activities, can and should legitimately influence the operation and exercise of the easement. The rule of immutability is directed against the excessive influence of the individual's role; but it has its exceptions, and we do not even see that the status of landowner for both parties to the easement tends to be required only with mitigations (easement established for the benefit of the public or for the benefit of the inhabitants of a municipality, etc.)? Such are the major problems of legal analysis that Mr. Kornprobst has tackled, not without courage. It took courage to undertake extremely extensive research in legal doctrine and case law, to expose himself to their uncertainties and contradictions, and to handle in turn subtle abstractions and commonplace realities. The study of case law, so often based on facts, is far from providing the firm foundations it furnishes in other areas. It requires all the more mastery, and the merit is all the greater for the author who discusses these problems with such insight. The subject, by its very nature, hardly lent itself to clear-cut and categorical conclusions. It is a fine achievement to have contributed to clarifying the situation and to have shed new light on it. (excerpt from the preface).

Référence : 50921

Mots-clés : Notarial law

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