Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Property Law and Real Estate
The Fault Of Trespass, Avihay Dorfman, Assaf Jacob
The Fault Of Trespass, Avihay Dorfman, Assaf Jacob
Avihay Dorfman
The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show …
The Justice Of Private Law, Hanoch Dagan Dagan, Avihay Dorfman
The Justice Of Private Law, Hanoch Dagan Dagan, Avihay Dorfman
Avihay Dorfman
Private law is traditionally conceptualized around a commitment to formal freedom and equality, whereas critics of the public/private distinction (including lawyer-economists) construe it as merely one form of regulation. We criticize the traditional position as conceptually misguided and normatively disappointing. But we also reject the conventional criticism, which confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus threatening to deny private law’s inherent value. This Article seeks to break the impasse between these two positions by offering an innovative account of the justice that should, and to some extent …