The Theoretical Reconstruction of Reified Contractual Rights
Date Issued
2015
Date
2015
Author(s)
Chen, Chih-Jui
Abstract
This thesis mainly focuses on the “reified contractual rights”. The definition of “reified contractual rights” is the contractual rights are endowed with partial characteristics of the rights in rem. “Reified contractual rights are not the only exception of privity of contract. The contractual rights expand its power over third parties are irrelevant to reified contractual rights. Based on the definition of reified contractual rights, I consider both “reified preemptions” (Article 426-2 of Civil Code) and “registered covenants to use immoveable co-owned property” (Article 826-1 I of Civil Code) are one of “reified contractual rights”. Using comparative research of law, I suggest that since the immoveable lease in Taiwan would continue to exist to the transferee notwithstanding the lessor transfers the ownership of the thing leased to a third party in some cases, it is necessary to legislate an efficient way of notice to avoid the increasing transaction costs between dealing parties and the imposing enormous information costs on third parties. In Taiwanese civil law, the ownership of the land and the house are separated. If the land owner delivers the land to the other, gratuitously for constructing the house, then subsequently transfers the ownership of land to the third party, or the house owner transfers the ownership of house to another third party, under “the privity of contract”, the land loan for construction should not shift to the transferee of the land. Besides, the transferee of the house cannot claim that the land loan for construction continues to exist to himself unless with the recognition of land borrower. When the land owner claims that the house should be dismantled on the basis of ownership, it may cause a controversial issue that “Should we allow the land owner demolishes the house with great economic value?” To solve this difficult problem, the Supreme Court of Taiwan and many scholars have proposed various solutions. Nevertheless, in my opinion, Article 425 I of Civil Code and Article 426-1 of Civil Code should apply mutatis mutandis to the land loan for construction by analogy. After the land loan for construction continues to exist to the transferee of land or house, the court may apply Article 227-2 of Civil Code to the land loan for construction, which means that the court can alter the original gratuitous contract to become land lease for building a house. Moreover, when the land loan for construction is expired, I propose that Article 840 of Civil Code should apply mutatis mutandis to land loan or land lease for building a house by analogy, so as to the land and the house would belong to the single owner. Consequently, the disputes in such cases may draw to an end. In addition, in the second chapter of this thesis, I argue that Article 451 of Civil Code shall apply mutatis mutandis to the superficies by analogy. In the fifth chapter, I propose that ""contract of sale"" and ""contract of exchange"" should not be “reified” without any registration. To solve related disputes, the court should seriously examine whether the immoveable transferees claim the rights stipulated in Article 767 of Civil Code is a violation of the principle of good faith or an abuse of right. The plaintiffs who are the immoveable transferees acknowledged that the immoveable transferor constitute ""contract of sale"" or ""contract of exchange"" with the defendants before transference is not the only judging criteria of the court.
Subjects
reified contractual rights
immoveable lease
land loan for construction
Article 425 of Civil Code
Article 426-1 of Civil Code
covenants to use co-owned property
preemptions
Type
thesis
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