Erfdienstbaarheden en verplichtingen om te doen

An easement is a limited real right which, in principle, permanently regulates the relationship between two or more tenements. According to Roman law, the burden that an easement imposed on the servient tenement for the benefit of the dominant tenement could not consist of an obligation to do something. With the reception of Roman law, this rule was adopted in the modern civil codes of many countries in continental Europe. It was also adopted in Article 5:71 of the Dutch Civil Code. 

In recent legal literature, this general restriction has been criticised repeatedly as being outdated and unpractical: considering the needs of the present time, it is suggested that a general provision for obligations to do something in easements should be included in the Civil Code. Opponents of such a reform of easement law fear new forms of feudalism. They also invoke the dogmatic objections against easements obliging the owner of the servient tenement to do something which had already been raised by the pandectists on the basis of Roman law. However, solutions to many these objections were already provided by the Romans themselves. On the basis of a study of consecutively Roman law, German law, French law, Scottish law and Dutch law under the former and current Dutch Civil Code, this dissertation examines the issue if a general provision for obligations to do something in easements can be incorporated into the current Dutch Civil Code whilst taking into account the historical and dogmatic objections that have been made against such an intervention.

Dissertation: https://hdl.handle.net/11370/7ef64f5c-45ee-4bc5-8d08-44b7269a4b8f