Legal Certainty in Real Estate Transactions

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More About This Title Legal Certainty in Real Estate Transactions


This comparative research was triggered by the assessment of property registration law published in the World Bank Doing Business reports (DB). The international and interdisciplinary team aimed to assess how legal certainty was imagined and put into practice in French and English law, using commercial real estate as a case study. Not only does this study identify the economic impact of the law in both jurisdictions, it also looks at the practitioners' functions in dealing with commercial real estate transactions. In other words, it analyzes the topical position of practitioners, such as the French notaires and the role of solicitors in England. Nowadays, the profession of notaires is confronted by numerous challenges. For instance, nationality requirement for its access has been ruled by the ECJ as contrary to the freedom of establishment and article 49 TFEU, and not justified by "the exercise of public authority." In this study, the authors argue that the actual nature and the quality of the work done by the practitioners should be considered, as well as financial cost and delays. They also argue that a liberalization of professions, such as civil law notaires, would have very little impact on the cost associated with doing business. As a matter of fact, both the English and the French mechanisms are very similar in their objectives and outcome even though they handle the same transaction differently because of the culturally different relevant angles.  (Series:Ius Commune Europaeum, Vol. 147) [Subject: Property Law, Commercial Real Estate Law]


Bertrand du Marais is a Conseiller d’Etat (Councillor of State), a member of the French highest court of appeal for judicial review and for the adjudication of all cases involving public agencies. He is currently seconded to the Université of Paris West at Nanterre as Professor for Public Utility and Regulation Law and Law and Economics. He is the co-director of the Law and Economics Masters there. Prior to this assignment, Bertrand du MARAIS has founded and managed between 2005 and 2007 the international think tank “The Economic Attractiveness of Law Program” (Programme Attractivité économique du droit). He also has been invited as a Lecturer or Visiting Professor of Public Economic Law by leading international universities (i.e. Berkeley Haas Business School, Université de Montréal, Seoul National University). Bertrand du Marais graduated from the Ecole Nationale d’Administration and the Ecole Supérieure des Sciences Economiques et Commerciales - Graduate School of Economics and Management (ESSEC). 

With contributions of Jean-Sylvestre Bergé, Camille Bourdaire-Mignot, Aurore Chaigneau, Bertrand du Marais, Youseph Farah, Philippe Frouté, Marios Koutsias, Régis Lanneau, Peter Luther, David Marrani, Alan Moran and Marie-France Nicolas-Maguin.