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This article reviews in a comparative perspective the regulations of different Western legal Systems on the cases of absence, disappearance and the presumption of death. Continental Systems are considered in the first place, from their two main historical sources, the French and the Germanie. The common law Systems are studied then, from their origins in the English law to their developments in the American common law and other mixed jurisdictions. The effects of the declaration of presumptive death are scrutinized comparatively, under different common categories. The study ends with an analysis of the tendencies underlying the developments found in this legal institution. The first outstanding tendency is one that progressively distinguishes the cases of absence from those of disappearance, both of them frequently confused in many legislations. Another One in the development of this subject is the separation being made between the genuine cases of disappearance, with doubt about life or death, from those of a certain death lacking the evidence of the corpse. One last legislative trend the article perceives is a strong tension between a position that considers the presumption of death as a declarative judgement, rebutta-ble with the evidence of life, and a view that understands it as being a judicially constituted status, its effects ending with the appearance of the disappeared person.
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In this article, I propose a model for understanding the concept of ownership that I call the ‘exclusivity model.’ Like many of the contemporary critics of the ‘bundle of rights’ approach to ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of them, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the ‘boundary approach’ to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for the boundary approach to explain adequately the many subsidiary rights in things that coexist with the rights of owners. Indeed, I argue that when we look more closely at the structure of ownership in property law, its central concern is not the exclusion of all non-owners from the owned thing but, rather, the preservation of the owner's position as the exclusive agenda setter for the owned thing. So long as others – whether they be holders of subsidiary property rights or strangers to the property – act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda setter.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.