THE ABSOLUTISM OF THE PROPERTY RIGHT
THE ABSOLUTISM OF THE PROPERTY RIGHT

Summary/Abstract: When we say that the property right is an absolute right we mean, first and foremost, that it is enforceable against anybody, erga omnes. The erga omnes opposability of the property right presupposes that all the others, except for the owner of the property right, must abstain themselves from encumbering the latter in exercising his/her right, namely to recognize and observe his/her property right. In this case, opposability equals inviolability and characterizes the property right to the same degree as it does any real right or lien. In this first meaning, the absolute character is not something specific only to the property right, but a common trait of any subjective civil right. Secondly, the absolutism of property rights does not reduce itself to the right's opposability, but presupposes the fact that the owner is the only one who can gather together all the prerogatives of property, that is usus, fructus and abusus. We encounter these prerogatives in the dismemberment rights, where they are being exercised more or less concurrently with the bare proprietor, but under no circumstance shall the usufructuary, the superficiary owner or the holder of an easement, have the right to exercise simultaneously all the property prerogatives. Thus, the property attributes are being exercised by the owner in an absolute manner. It is a feature of absolutism through which property differentiates itself from any other real right. According to another opinion, the absolute character is represented by the owner's freedom to do whatever s/he chooses with his/her property. There are no inherent limits to the right of property, but only limits that are exterior to the space of absolute action or inaction of the owner. It has been therefore admitted that the property right is absolute only if it is reported to itself, to its holder. This is the significance of the inexistence of the limits inherent to the property right. Then, property has an absolute character in the sense that it is a general, global notion. Its definition does not vary according to circumstances. It applies to everybody and to everything; it does not vary from person to person or from owner to owner. Property appears as absolute by means of the state of legal equilibrium which it guarantees in the situation of goods. The property right escapes prescription. Property absorbs dismemberment in order to reunify itself. Therefore, the right's dismemberment can be but temporary and subject to prescription. Easements make an exception, since they are considered to be the only perpetual real rights. Finally, the absolute character of the property right presupposes that property does not define itself in relation to any other right. It does not need another right as element of reference. The property relation does not have a determined or determinable passive subject that might owe something to the owner.

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