Papers by Jan Felix Hoffmann
There is a common core of principles that governs all property rights, whether they relate to tan... more There is a common core of principles that governs all property rights, whether they relate to tangible or intangible goods. The classical principles of property law are applicable to the property law of intangibles. However, classical property law is also specifically designed to deal with physical objects, which raises the question of the extent to which the regulatory complexes of property law can or must be adapted when dealing with incorporeal goods. This is a challenge that can be observed in the discussion on property rights in data. This modern problem has received much attention, while a very similar and classical problem of property law has not been taken into much consideration in this context. The legal tension between a physical storage medium and the incorporeal good contained in it has dominated the property law discussion on money for decades. In fact, the question of whether classical property law is capable of dealing with the assignment of an incorporeal good is an old one, and much experience has been gained in the national property law systems with regard to money. The examination of this classical problem of property law also seems to be an appropriate starting point for the evaluation of newer legislation on property rights in cryptocurrencies. The new discussion on property rights in data and the old discussion on property rights in money have a strong point of contact when it comes to assigning absolute rights to cryptocurrencies.
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Contract law and property law are traditionally viewed to be two separate fields of private law s... more Contract law and property law are traditionally viewed to be two separate fields of private law shaped by different principles. Over the past years a theory of contract law thoroughly drawing on the concept of "ownership" has been promoted by common law scholars. It leads at its core to the conclusion that the distinction between absolute and relative rights is irrelevant inter partes and that, therefore, a theoretical division between contract and property cannot be strictly maintained. This touches upon the fundamental distinction between absolute and relative rights raising the question why a contract does not automatically lead to an absolute right with regard to the substance of the promised performance.
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Classical property law is not only losing economic relevance with the progressing dephysicalizati... more Classical property law is not only losing economic relevance with the progressing dephysicalization of economic processes but is also increasingly perceived as a static field of private law, pursued by specialized lawyers working with rather inaccessible national concepts and dogmas that seem to have no significant relevance for the development of a digital economy. The mostly codification-driven comparative research on property law continues in the tradition of national property law codifications primarily addressing tangible objects. The research on property law should not restrict itself to this rather pragmatic approach, because in the end this arbitrarily delimits the concept of property law and reinforces the impression of classical property law only dealing with tangibles. Comparative property law should look beyond issues of codification and address the question of what is the essence of property law. Property law deals with the erga omnes effects of rights. It therefore not only addresses full-fledged property rights over movables or immovables but also covers partially absolute rights over these assets on the threshold to contract law. Property law also addresses absolute rights with regard to intangibles. This awareness should on one hand demand from any discussion on creating new (partially) absolute property rights to take notice of the state of the art of current (comparative) property law. It should on the other hand incite classical property lawyers to take part in these debates and to question the traditional concepts and principles in light of the new developments. Classical institutions of property law should be reconsidered from this point of view.
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The economic relevance of data is steadily increasing. In Germany, this is accompanied by an inte... more The economic relevance of data is steadily increasing. In Germany, this is accompanied by an intensive legal debate on how to treat data in Private Law. 1 The European Commission has fueled this discussion by proposing the introduction of a "data producer's right". 2 Accordingly, a "producer" of data is assigned an absolute right (in rem) to utilize the corresponding data. This proposition aims at facilitating an efficient trade with data. Other protagonists in this debate stress the importance of strengthening the autonomies of civil society through data protection and do not merely want to address the economic implications of data trade. 3 Some voices propagate a property right with regard to behavior-generated data. 4 The following thoughts do not aim at participating in the large-scale discussion on property rights with regard to data. 5 The discussion has reached a certain level of abstractness and the concrete problems in need of a solution are somewhat fading from view. 6 Instead, a very concrete problem with regard to data will be analyzed. Namely the issue whether access to data
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Archiv für die civilistische Praxis, 2015
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Zeitschrift für Zivilprozess, 2012
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Archiv für die civilistische Praxis, 2011
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Juristische Schulung, 2016
In der juristischen Ausbildung scheint die Tendenz weiter zuzunehmen, bestimmte Meinungsstreitigk... more In der juristischen Ausbildung scheint die Tendenz weiter zuzunehmen, bestimmte Meinungsstreitigkeiten zum Standard zu erklären und in Prüfungen abzufragen. 1 Die Ausbildungsliteratur sieht ihre Aufgabe dann häufig darin, diese Meinungsstreitigkeiten in ein Prüfungsschema einzubetten und klausurtauglich aufzubereiten. Problematisch ist diese Entwicklung nicht, weil diese Form der Wissensvermittlung per se ungeeignet wäre, die
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Zeitschrift für die gesamte Privatrechtswissenschaft, 2019
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Papers by Jan Felix Hoffmann