Simeneh Kiros and Muradu Abdo

Simeneh Kiros and Muradu Abdo
Addis Ababa, Ethiopia

November, 2001

Property and Land
Law I and II

Property Law I and II Simeneh and Muradu
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Table of Contents
Introduction ................................................................................................................................. 4
Property Law I ................................................................................................................................. 8
1. Theories of Private Property ............................................................................................... 9
2. Goods and Possession ........................................................................................................... 11
2.1 Goods............................................................................................................................... 11
2.2 Possession ....................................................................................................................... 24
3. Ownership ............................................................................................................................. 28
3.1 Acquisition, Transfer, Extinction and Proof of Ownership. ..................................... 28
3.2 Acquisition of Ownership ................................................................................................ 33
3.3 Transfer of Ownership ..................................................................................................... 55
3.4 Extinction of Ownership .................................................................................................. 56
3.5 Proof of Ownership. ........................................................................................................ 59
3.6 Notes on Arts. 1207 - 1227 ............................................................................................. 61
3.7 Ownership and Use of Water .......................................................................................... 63
3.7.1. The Riparian Doctrine. ........................................................................................... 65
3.7.2. Prior Appropriation Doctrine. ............................................................................... 66
3.7.3. Permit System (Administrative Apportionment Doctrine) .................................. 68
Review Questions .................................................................................................................. 72
Property Law II.............................................................................................................................. 88
4. Joint Ownership. .................................................................................................................... 89
4.1 Ordinary Joint Ownership (Arts. 1257-1277) .................................................................. 89
4.2 Special Joint Ownership. ......................................................................................... 103
Review Questions ................................................................................................................ 109
5. USUFRUCT ........................................................................................................................... 114
6. Right of Occupation of Premises. ........................................................................................ 143
REVIEW QUESTIONS ............................................................................................................ 145
7. Servitude. ............................................................................................................................ 150
8. Right of Recovery ................................................................................................................ 163
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9. Restrictions on the Right to Dispose Certain Things ........................................................... 173
9.1 Right of Preemption and Promise of Sale Arts. 1410-1425 .......................................... 173
10. Collective Exploitation of Property. .................................................................................. 181
10.1 Public Domain (Arts.1444 -1459) ................................................................................ 181
10.2 Expropriation Proceedings (Art. 1460-1488) ............................................................. 186
11. Notes on Registration of Immovable Property ................................................................. 206
Review Questions. ............................................................................................................... 207
12. Literary and Artistic Ownership ........................................................................................ 209
12.1 Original Works Arts. 1647, 1662 & 1663 .................................................................... 209
12.2 Derivative Works Arts. 1649-1651 .............................................................................. 213
12.3 Elements of Copyright. ................................................................................................ 215
13. Notes on Lease ................................................................................................................. 231
13.1. Lands ........................................................................................................................... 234
13.2. Buildings ..................................................................................................................... 238
13.3.Obligations of the Parties ............................................................................................ 240
BIBLIOGRAPHY ......................................................................................................................... 250
Books and Articles ............................................................................................................... 250
Table of Laws ....................................................................................................................... 267
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Introduction

Begin with a brief discussion of the justification of private property and the definition and
nature of patrimony, Part I of this Course (Art 1126 - 1256) in general assumes that all the
prerogatives of an owner are concentrated on a single individual. When we say
prerogatives we are referring to such powers as the right to use, collect fruits, manage the
thing, not to use, to give privileges to others, to create other right in rems (such as pledge,
mortgage, antichresis, usufruct, pre-emption, promise of sale), to transfer to another
person and to destroy the thing. This part raises several questions and attempts to address
the same: What is the subject matter of all these series of powers? This question is posed
and Arts 1126 - 1139 try to address it by defining the object of ownership, by classifying
and sub-classifying, and indicating the legal implications of such dichotomy. Arts 1140 -
1150 focus upon the fact of controlling a thing, how this control is attained and lost.
They also dwell upon the remedies available for a person whose factual control is
impaired by another person. This is followed by Arts 1151 - 1159, which deal with the
issue of one aspect of acquisition as opposed to transfer. They furnish an answer to the
question: how does a person become an owner of a thing without master? Arts 1161 -
1167 are devoted to the task of setting conditions, which are necessary for a person to get
title over a thing which has been sold to him by another person having no title. Exception
to this circumstance is at carved out. The next couple of articles center on identifying the
factors leading to the acquisition of an immovable through the passage of time. The legal
notion of accession is incorporated in Arts. 1170 - 1183. In these group of articles, as to
who is the owner of fruits of a thing, the trees planted, crops sown and buildings
constructed on somebody else's plot with or without the latter consent the issues of
transformation, adjunction and merger are also dealt with.
Arts 1184-1187 provide for the manner in which the powers of an owner on a corporeal
good are transferred to another person. Once a person gets ownership over a given thing,
either through acquisition or transfer, one may be interested in knowing the legal
conditions necessary for that person to lose his ownership. Arts 1188 - 1192 carry out
this function. In case where dispute over title arises, the law furnishes the court with
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techniques necessary for resolving that problem. Arts. 1193 - 1203 play this role. Arts
1204 - 1206 point out the basic attributes of ownership.

Arts. 1207 - 1227 have basically/ two functions. One of which is telling us that
ownership over immovables is not absolute and as such there are several duties imposed
upon an owner. The second function is emphasizing on the idea that an owner has
exclusive say over his plot. Section Three of Chapter Three, which is composed, of about
27 articles concerns itself with claims over one of the vital resources-water. Herein
incorporated are the different doctrines on the allocation of water.

Part Two of the Course extends from 1257 - 1674. It might happen that two or more
persons may have the same interest at the same time in relation to the same object. This
situation raises several legal problems- how should the thing be managed? How should it
be used? What is necessary for a valid decision in respect of the thing to be made? How
should the cost of management be appropriated? How is in the first place the joint
ownership created? Arts 1257 - 1277 bother themselves with these questions.

As population increases, it may be economically unwise (inefficient) to allot a plot of
land to each person, that is lateral movement may be found out to be uneconomical.
Rather several individuals may be forced to construct a building with several stories, each
individual occupying few rooms of a given floor. This situation triggers unique legal
situation, which cannot be addressed properly by the provisions of ordinary ownership
Art. 1125 - 1277. Thus Arts 1278 - 1308 are set out to deal with this situation, in addition
to the question of party wall.

An owner of a given corporeal good may mutilate this ownership and give the usus and
fructus aspect to another person either freely or for consideration. This situation
envisages different rules solving the concomitant problems. Here we want to know,
among others, the legal moment on which usufruct is created, the respective duties and
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rights of the bare owner and the beneficiary. This task is accomplished by Arts. 1309 -
1359.

On the ground of efficiency and the spirit of good neighborly behaviour, we create a
certain juridical relationship between two immovables so that one gives economic utility
to the other. Once this legal relationship is created several issues warrant solutions. This
mission is supposed to be accomplished by Art. 1360 - 1385.

If an outsider steps into a joint ownership, the spirit of cooperation assumed to exist
among or between joint owners will be destroyed. This may have the danger of managing
the thing inefficiently. One of the function of the rules of right of recovery is to prevent
an unwanted person from having the status of a co-owner. In addition to this, Arts 1380 -
1409 are assumed to prevent the sale of 'rist' land and hereditary estate from being
acquired by non-relatives.

It is within the discretion of an owner to restrict the person to whom and the time when
the price at which his thing may be transferred. If such a prerogative is at all exercised,
then there arise several issues, which the law of promise of sale and right of pre-emption
wish to regulate (Arts. 1410 - 1425).

Behind every immovable property is this threat of the government to initiate
expropriation proceedings. This is the most legitimate and the most conspicuous case
where the government / takes away the several powers an owner has over an immovable.
What constitutes expropriation? What are the proper procedures? How should the
government go about in fixing the amount of compensation? These and other questions
are addressed by Arts. 1460 - 1488.
The state, in order to carry out its tasks, must have property. The issues of defining the
factors which make a given corporeal good, of the legal consequences of considering a
given thing state property, of expanding the scope of state property and of excluding a
given good from being state property are dealt with by Arts 1444 - 1459.
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Unlike the case of ordinary movables, immovables or interest in immovables could be
assigned to two or more persons at different or at the same time. In case this happens,
whose interest shall prevail? Arts. 1553 - 1646 and Arts 3363-3367 attempt to solve this
conflict. These provisions address the questions: what is to be registered? What is the
effect of registration? What cautions are to be taken by a person making a transaction
pertaining to an immovable?

As is endowed with intellect and imagination, man ponders over certain matters,
expresses himself and exposes certain commodity to the ravage of the public. This
pertains to the law of copyright which raise several issues Arts 1647 -1674 are there to
address these issues.

Finally notes on the nature of lease, on the respective rights and duties of lessee and
lessor are included.

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Property Law I

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1. Theories of Private Property

There are four major theories of the justification of property. These are the occupation
theory; the labor theory, property and personality theory, and the economic theory.

1.1 The Occupation Theory: The oldest and up to recently the most
influential defense of private property was based on the assumed right of the original
discoverer and occupant to dispose of that which thus became his.

It is rather easy to find fatal flows in this view. Few accumulations of great wealth were
ever simply found. Rather were they acquired by the labour of many, by conquest, by
business manipulation, and by other means. It is obvious that today at any rate few
economic goods can be acquired by discovery and first occupancy. Even in the few cases
when they are, as in fishing and trapping, we are apt rather to think of the labour involved
as the proper basis of the property acquired. Indeed, there seems nothing ethically self-
evident in the motto that 'findings is keeping's'. There seems nothing wrong in a law that
a treasure trove shall belong to the king or the state rather than to the finder. Shall the
finder of trover be entitled to all the water in it?

1.2 The Labour Theory: That everyone is entitled to the full
produce of his labour is assumed as self-evident by both socialists and conservatives who
believe that capital is the result of the savings of labour. The essential rule in this theory
is that labour has to be encouraged and that property must be distributed in such a way as
to encourage ever-greater efforts at productivity
1.3 Property and Personality: Some writers have tried to
deduce the right of property from the individual's right to act as a free personality. To be
free one must have a sphere of self-assertion in the external world. One's private property
provides such an opportunity.

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1.4 The Economic Theory: The economic justification of
private property is that by means of it a maximum of productivity is promoted. The
successful businessman, the one who makes the greatest profit, is the one who has the
greatest power to foresee effective demand. If he has not that power his enterprise fails.
He is therefore, in fact, the best director of economic activities.

Private property is not and should not be absolute. The state must interfere in order that
individual rights should become effective and not degenerate into public nuisances. To
permit anyone to do absolutely what he likes with his property in creating noise, smells,
or danger of fire, would be to make property in general valueless. To be really effective,
therefore, the right of property must be supported by restrictions or positive duties on the
part of owners, enforced by the state as much as the right to exclude others which is the
essence of property.

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2. Goods and Possession
2.1 Goods.
Arts.1126-1139
Generally rights that are recognized and protected by law may be classified into those
which have pecuniary value and those which are not assessable in terms of money.
The latter category of rights includes civil and political rights and family rights. The
former comprises the rights that are protected by the law of obligations and the law of
property. Those rights governed by the law of obligations are rights in personam as
they may be claimed (exercised) against identified and specified persons, be they
physical or juridical; whereas those rights that are covered by the law of property are
rights in rem that may be claimed against the whole world.

The totality of the rights of a person and his liabilities (which can be valued in terms of
money) may readily form unity and termed patrimony. Patrimony is a distinct notion,
which is and can subsist different from the actual elements, which it is composed of.
The extent of patrimony may change to the extent where the right of a person is
negative and he is charged with obligations to discharge.

As it is a distinct notion, its unity cannot in any way be affected so long as the holder
of the patrimony does not lose his personality. This makes the notion of patrimony
highly intertwined with the nature of personality and civilian lawyers identified four
characteristics of patrimony.

1. Every patrimony presupposes a person, whether physical or juridical as its
holder. This is because, when we are dealing with patrimony we are in effect dealing
with rights and duties, which cannot exist without reciprocal holders.

2. As every person is bearer of rights and duties (as a rule Physical persons from the
date of birth and juridical persons from the date of personality is conferred on them)
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he has a patrimony irrespective of its content, i.e. he might not have any proprietary
right because he is exceptionally poor, but he always has a patrimony.

3. However wealthy a person may be he can have only one patrimony. This is
because patrimony is the unity of the rights and obligations of a person irrespective of
its content as the two notions, property and patrimony are distinctly different. In fact,
what constitute the unity of a patrimony is not only the rights and duties are used in the
same person, but also because they are devoted to the same purpose.

4. Under normal circumstances the rights and duties of a person exist so long as
the holder exists. As a corollary of this patrimony is inseparable from the personality
of the person.

The elements of a patrimony are called property. Property is not the subject matter
over which a bundle of rights may be exercised but the rights themselves, whether
ownership, possession or other right. The object of the right is called beins. The term
beins in many civil law legal systems is translated to mean "goods" and there are
circumstances where the word "things" is employed in the same sense.

Things become "property" in the legal sense of the term not when they are useful to
men but when they are appropriated. Only things that are objects of appropriation to
the benefit of private persons or government units, whether individually or
collectively, constitutes "goods." As it is not explicitly provided for, this distinction
does not seem clear under the Ethiopian Civil Code. However, it directly talks about
goods - things appropriable or that for the object of rights - and the mere fact of not
considering things that are not appropriable itself is making that distinction. This
could be understood only when one goes through the provisions of Tittle VI and VII of
Book III. Art.1126 - 39, which provides for as to what goods are, make it clear that the
term "goods" is any thing that can be the object of rights. But this may be more clear
when it is seen in light of Art. 1204.
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Arts. 1126, 1127 and 1130
Art. 1126 classifies "all goods" into movables and immovable.
Those things that are subject to such classification are corporeal things that are
perceptible by the senses. The Amharic text expressly and clearly uses the words
"goods that have material existence...." It can also be understood from what has been
provided under Arts. 1127 and 1130 that goods whether movable or immovable have
material existence. Art. 1128 and 1129 provide for incorporeal good that are
assimilated to corporeals.

This classification of things into movables and immovables is based fundamentally on
the physical quality or nature of mobility or immobility of a thing. Immovables are
things which have fixed situation while movables are things which do not have this
fixity and which can be displaced from one place to another. Hence Art. 1130
provides that lands and buildings shall be deemed to be immovable. The listing is
exclusive and the provision is clear. Art. 1127 on the other hand provides that
"corporeal chattels are things which have material existence and can move themselves
or be moved by man without losing their individual character. "For a thing to
constitute a movable there are three requirements to be met:
a) The thing must have material existence or must be perceptible by the
senses, such as table, chair, and book;
b) It must be able to move itself, such as automobile or be moved by man such
as the things we carry; and
c) It must not lose its individual character when moved. The a contrario
interpretation of these last two requirements is that if a thing cannot be moved at all or
it cannot be moved without losing its individual character, it is not movable. It does
not however mean that it is an immovable as only land and building are considered to
be immovable. It simply means it does not have independent existence as a thing
(good or bein) such is the case with intrinsic elements of goods.

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Land is a typical immovable. When it comes to building there are authorities who
argue that the term building should not be limited to refer to buildings properly so -
called such as dwelling houses, stores, workshops, out houses etc, but extends also to
works of art of all kinds, such as bridges, wells, ovens, dikes, dams, tunnels, etc.
Buildings are immovables irrespective of the fact that they are not constructed
"forever." Buildings set up for an exposition are immovable even though they may be
destined to be destroyed in several months or weeks. But portable constructions set up
on the surface on the soil for several days, re - erected elsewhere and transferred from
place to place such as booths at fairs and occasions are not immovable. This is
because, these light constructions do not have fixed place. Nowadays, thanks to
technology, even, many storage buildings may be made movable. What do you think
is the status of such building?

Arts. 1131, 1132, 1133 and 34
So far we are considering land and building as immovable by nature. But there are
certain other items that are considered as immovables. There are intrinsic elements of
goods as implied under Art. 1134 (1) whether a thing is movable or immovable it may
have an intrinsic element.

The first is when the thing is regarded by custom as forming part of the principal thing
while the two items can be detached from one another without damage. For instance
consider a hay racker attached to a tractor which is made not for the purpose of plough
but for hay racking of grass, may be regarded as forming part of the tractor among the
farming community. Certainly the hay racker can be detached from the tractor without
damage and can be fitted with another tractor or similar power generating motor for
the hay racking purpose. Now, if it is regarded by custom as forming part of the
tractor, the owner when deals on the tractor for the purpose of sale, hiring out, pledge
or any other transaction, the dealing applies also to the hay racker if there is no
provision other wise which is of law or contractual nature (1131) for this to happen a
separate or express agreement is not necessary. If the owner wants to retain the hay
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racker when he is making his dealing on the tractor he has to make a specific reference
to this fact. The question, however, is who is to determine as to what constitutes an
intrinsic element in a given case? If the two persons are operating their business in
different customs whose custom is to be applied? Are Arts. 1713 and 1732 - 39 of any
help?

The second class of intrinsic elements of a good is pretty much easily identifiable than
the above. The two items must be materially united and cannot be detached from one
another without any damage. Certainly a building is incomplete without the doors,
window, water pipes and other appliances attached to it. They are unquestionably
immovable by nature. The building materials when once used and converted into
immovable by nature no longer have distinct existence. There are no longer any
bricks, pipes buildings stones or lumber. It is just a house of which these materials
have become integral parts. The fact of their physical integrity is evident that one
forming part of the other object called principal is an intrinsic element. Their physical
unity is strong that the two items cannot be detached without damage to either or both
items.

But this should not confuse us that the law does not have regard to things without
which the principal thing cannot give its service while the two can be detached without
any damage. For instance a tire along with the rim is subject to separate dealing as a
spare part or as an 'accessory' in the ordinary sense of the term. The car stopped by the
road side may be operated when its flat tires are changed (repaired). But the tire may
be detached from the "car" without any damage to both items. It is subject to
independent dealing thereafter. This case does not seem to be covered under these
previsions. Certainly it is customary in any part of the world that a car may be called
car when its entire component parts whether the engine or the body are present. Even
if there is ambiguity as to the custom relating to the thing the two items may be
detached without damage, the issue (idea) of custom should cover those kinds of
things, which give things their name.
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In other civilian jurisdictions trees (from the little bushes to the large) and crops are
considered as immovable by nature in themselves like the land and buildings. In our
legal system as per Art. 1133 (1) they are made intrinsic elements of the land until they
are separated therefrom. Once they are separated, however, or if they are made subject
to deal independently to be separated in the future, they are considered movables.

If a thing forms or becomes an intrinsic element of another thing, unless there is a
provision otherwise, any dealing on such thing also extends to the thing that
constitutes an intrinsic element. There are circumstances where it involves the right of
third parties. This is because the intrinsic element is no more a distinct thing whether
it forms part of a movable or immovable. It is not always the case that the owner of
the principal thing is also the owner of the intrinsic elements. Art. 1134 (2) provides
that by the time the object is regarded by custom to form part of the principal thing or
is materially united, the rights of third parties on the intrinsic elements (whether
ownership, usufruct or any other right) ceases to exists for it becomes the property of
the owner of the principal thing Art. 1183 (2). It does not, however, mean that he is
without a remedy Art. 1134 (3) and 1183 (3) provide for identical remedy that the third
party may base his claim on the provisions of extra - contractual liabilities and
unlawful enrichment. Restitution is not in any way a remedy unless there is bad faith
on the part of the owner of the principal thing Art. 2163 (2). But consider Art. 1133
(1) and try to anticipate the possibility of making trees and crops intrinsic elements of
the land in view of the existing land holding system in Ethiopia.

Arts. 1128 and 29
If we are to be governed by the rules of dichotomy, those things, which do not fall
under the category of immovable, have to be movable, provided they are considered as
things distinct. This by necessary implication means that those things, which have no
corporeal character, are not within the classification. Though in vain the law tries to
accommodate also those which are incorporeal by assimilating them to corporeal
things. These are claims and rights incorporated in securities to bearer and natural
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forces of economic value when mastered by man and put to his use (Arts. 1128 & 1129
respectively) in the absence of provision otherwise.

Art. 1128 provides for the assimilation of claims and other incorporeal rights
embodied in securities to bearer to corporal movables. This is instance where
incorporeal things are considered as goods. But it considers only "claims and other
incorporeal rights embodied in securities to bearer". This is what is also provided for
in the Amharic text.

But the Commercial Code under Art. 719 depending on the forms of their transfer,
securities may be bearer, in a specified name or to order. Security to bear is only one
type of negotiable instrument which may be transferred by delivery of the instrument
without any additional legal requirement and the holder of the instrument to bearer
establish his right to the entitlement as expressed in the instrument by the sole fact of
presentment of the said instrument (Art. 721 com. c).

The definitional Art. 715 provides that a negotiable instrument is any document
incorporating a right to an entitlement in such manner that it be not possible to enforce
or transfer the right separately from the instrument. In particular it lists commercial
instruments, transferable securities and documents of title to goods as negotiable
instruments. We may also add to this insurance polices. All these instruments have
one thing common - an entitlement expressed in them. Art. 1144 cc. on the other hand
provides that possession may be transferred by delivery of the document representing
the thing. Having all this, why does the law singled out only securities to bearer and
assimilates the rights there into corporeality which it has not done for other identical
right incorporated in other modes of negotiable instruments? Or is it because of poor
draftsman ship, otherwise the law wanted to equate the security to bearer of the civil
code with negotiable instruments? As stated above the provision is clear and the two
version are consistent.

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A part from this we have many types of incorporeal rights incorporated in various
instruments and exercised in various ways. The major type is what is called
intellectual property. Intellectual properties are classified into copyright that is
covered by Arts.1647 - 1674 and industrial property provided for in Proc. 123 / 1995
and Regulation 121/1993. The property under consideration might have only
industrial value as in the case of patent of invention, patent of introduction,
compulsory license and utility model certificate or it may have only commercial value
as in the case of industrial design, trade names and trademarks. As all of them involve
right of the investor or his employer, they are, certainly protected by law. But they are
also stated (expressed) to be incorporated by the law. Art. 1647 (1), 1663 (1) and Art.
2(5) Proc. 123/1995. Does the fact that these rights are not assimilated to corporeality
and not classified to either of movable or immovable make them that they are not good
in the legal sense of the term as employed in the Civil Code?

We also have another category of incorporeal, which somehow overlap with the above
incorporeals as they form element of the business. Art. 124 Com.C. defines business as
an incorporeal movable consisting of incorporeal Art. 127 and corporeals Art. 128.
Does business squarely fit with what has been provided for in the Civil Code, once it is
classified as an incorporeal? Is the clause "unless otherwise provided by law" under
Art. 1128 C.C of any help to our problem here or is it limited only to securities to
bearer? If it is limited to security to bearer, what if the possible otherwise provision by
the law?

The other category of things that are assimilated to corporeal chattels in the absence of
otherwise provision, according to Art. 1129 are natural forces, which are illustrated by
electricity. The requirements are that the thing:
1. must be mastered by man
2. have economic value and
3. have to be put to the use of man.
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Certainly an object so as to constitute "good" must first be controlled by man. That
object must in fact be useful to man and finally it must be assessable in terms of
money so that it may constitute part of the patrimony of a person. If any of these
elements are lacking any object is not good or bein. But it does not mean that these
three conditions are sufficient; they are only necessary. An object has to be also
appropriable in order to constitute 'good'.

This discussion is not in any way to drive at the conclusion that natural forces
(including electricity) are not things or goods because we have to give effect to clear
provisions of the law. It is just to show that the requirements are superfluous" it is
evident that they are there.

Arts.1133 (2) and 1135 - 39
According to the provisions of Arts. 1127 and 1130 the classification of things into
movables and immovable is based on their physical nature of mobility or immobility.
However, this rule does not apply with strict invariability and it is subject to two
exceptions. Certain movables by nature may become immovable by destination while
some immovable may become movable by anticipation.

Movables by anticipation are recognized under Art. 1133 (2); trees and crops are
deemed to be distinct corporeal; where they are subject to contracts made for their
separation from the land or implying such separation. One may also notice movables
by anticipation when a building is to be demolished and its parts are sold. For the
purpose of the sale each part of the building is considered to be movable.

The other class of things that constitute exception to the general rule of classification
of goods (things) are immovable by destination in virtue of their being accessories of
an immovable to which they are attached. But they are different from immovable by
nature particularly from intrinsic elements of goods, in that their immobilization,
which flows from the mere destination of thing, is not as perfect as that which flows
20
from their incorporation in an immovable. Yet things immobilized by their destination
are rightly treated in principle as immovable when two conditions are fulfilled.

First, there has to be a relation of destination between the principal and the accessory
as provided under Art. 1136. This requirement of destination is expressed by the
words: "permanently destined for the use of such thing" French commentators make
definite destination between objects immobilized by permanent attachment and objects
immobilized by reason of their use, improvement or service to the immovable. This
type of distinction is not in existence in our law but the material must be permanently
destined to the use of the principal thing. The question that readily comes to ones
mind is what permanent attachment is and whether it has anything to do with the
mobility or creation of the immobility (i.e. the existence of physical bond). It is
submitted that if the possessor or the owner of the principal object destines the
accessory for the use, improvement and exploitation of the principal object with such
intention, the principal be land, industrial, commercial or manufacturing
establishment, it can be said permanently destined and it in no way is to be measured
by the service life of the thing.

The clause "for the use of such thing" is not without meaning and it is of paramount
importance (consequence) in that the thing which is said to be an accessory has to be
destined for the proper exploitation of the principal object and not for the mere
convenience of the owner or the possessor of the principal object. It also meant that
the thing must serve the economic purpose of the principal thing to which it is
destined. However, unlike other continental legal systems which require the
establishment of such destination relationship between the principal and the accessory
only by the owner, it is clearly provided for that either the possessor or the owner of
the immovable (or principal object, to include movables also) may create the
destination relationship.
The other requirement which is implied in Art. 1138 (1) is the identity of the owner,
i.e. the owner of the accessory and the principal thing has to be the same. From this
21
prevision it looks that if a possessor destines a certain property of his as an accessory
to an immovable (a principal thing) it sounds that thing does not constitute an
accessory. Rather if he destines the property of the owner of the immovable (the
principal thing) that certainly constitutes an accessory. How about if he destines a
thing which belongs to a third party for the use of a principal thing? The answer is the
same. Because the rights of third parties over the accessory is not affected by the mere
fact that it is destined for the use of the principal as provided under Art. 1138 (1).
However, there is an exception in situation where the third party acquire in good faith
unless such right of the owner of the accessory is stated in a written document dated
prior to the destination. One would wonder whether this written document is to be
subject to requirement of registration. Certainly not. Both the Amharic and the
English versions of this sub - Article (1138 (2)) are clear and state a written agreement
though it is not clear between whom this agreement may be entered. The law gives
primacy to the written agreement than oral agreements.

Thus far we have discussed about intrinsic elements and accessories to immovable as
exceptions to be general rule of classification of things on the basis of their nature.
However, movable things also may have intrinsic elements and accessories as
provided under Art. 1135 (1) and 1138 (1). In such cases, where thing forms an
intrinsic element or an accessory of a movable the general requirements for so
becoming we have discussed above in relation to immovable are equally applicable.

The effect of being an accessory is that rights and dealings relating to the principal
thing are applicable also to accessories. For instance if a building is mortgaged all its
accessories are also subject to the mortgage. However, this extension is not of
unconditional application, rather it is only in doubtful cases i.e. if there is a doubt as to
a specific dealing or right in relation to the principal thing. If there is a clear
agreement, on the other hand, as to the application or non - application of it to the
accessories, that clear agreement is binding.

22
The fact that the principal and the accessory are separated temporarily (this is always
possible when the destination relationship exits without a bond attaching the two items
physically), the accessory does not lose its character of accessory (Art. 1137) if the
owner wishes, however, he can put such relation to an end (1139). On the other hand,
if third parities are dealing with the owner on the principal thing in the belief that the
accessories continue to be accessories thereof, he cannot do that. This may be the case
when the contracting parties have different expectation (belief) and they do not speak
to the fact (absence of meeting of the mind) Art. 1135 may substitute this approach
that it may be one circumstance where a doubt arises and the agreement of the parties
is extended to the accessories also. The question is when should the agreement be
made on the principal thing so that the accessory may continue its character? Should
it be made before or after the owner terminates the destination relationship?

The other fundamental question is, if according to the provisions of Art. 1136 the
possessor also is able to destine a thing permanently for the use of the principal, why is
it not possible for him to terminate the character of the accessory? As we have seen
above, one of the requirements for a thing to become an accessory is unity of
ownership i.e. the accessory should belong to the owner of the principal thing. If it
does not belong to him, the right of third parties over the thing is not affected. This
means the thing is not permanently destined for the use of the principal thing and
thereby it has not attained the character of an accessory. Even if the possessor destined
his property for the use of the principal, it does not constitute an accessory, as it is not
for the use of the thing, rather for his own convenience. Therefore, it is sound for the
law to give the power of termination of the destination relationship only to the owner.

The distinction between movables and immovable has many legal consequences.
1. The application of the theories of possession very much differs in the case of
the two classes of things. In the case of corporeal chattel particularly ordinary
corporeal chattels, mere possession pre - supposes ownership. Even if a person is not
23
the one to whom ownership is transferred if he is in good faith, he becomes an owner
when certain conditions are fulfilled.

2. As a continuation of the foregoing discussion the modalities of acquisition,
transfer and proof of ownership are entirely different. In the case of immovables
ownership is transferred only when it has been registered. This is because, the law
gives importance to immovables. This can be seen in many provisions in various
fields of law of the Civil Code. In the case of partition of succession, the immovable
acquired by the deceased from predecessors in title in the paternal or the maternal line
is to be assigned to the heirs in that parental or maternal line (Art. 1088). The fact that
the law provides for division of immovable, preferably, instead of sale by auction
unlike in the case of corporal chattels (1272) or grants longer period before division on
sale by auction (1273) or providing for a period of indivision, (1274) or perpetual joint
ownership (1276) or providing for special cases of joint ownership (1278 - 1308;)
restricting the power of the court to authorize the alienation or attachment of an
immovable, (Art. 932) and others which are not listed reflects how the law attaches
importance to immovable.

3. It has an implication of status or capacity that foreigners cannot own
immovable in Ethiopia (Art. 390).

4. The nature of legal relationships that may be created very much differs in the
two e.g. pledge and mortgage.

5. It also has an impact on the jurisdiction of the court - a court in the vicinity
where the immovable is situated has jurisdiction over the immovable.
6. It also has many implications with respect to procedural law and private
international law, which have to be seen in their respective objective.

24
2.2 Possession
Arts. 1140-1150
The search for a clear and distinct idea as to what possession is such a difficult task
and painstaking. Instead of discussing it us a legal notion let as raise the question as to
what exactly possession is and why we need it in the law. As we go along to satisfy
our query, we have to be clear with possession in the legal sense of the term.

A person may be in control of a res or thing for various reasons. He may have a right
relating to a specific thing or he may not have at all. In cases where a person has a
right over a thing and he is in control of it, he may claim that he is in possession of it.
For instance owner cannot use his property without having possession of it be it
himself or through another person holding it for the owner. But is the owner always a
possessor? A pledgee also may exercise his right only when he takes possession of it.
On the other hand, a person who does not have any right over the thing also may be in
control of the thing because of a certain obligation he has assumed towards the legal
possessor of the thing. Such is the case with a depositee and a bailee. It is not sound to
say that this person is in possession of the thing for himself as he maintains the
possession of another person. This is because he took control of the thing because of
some kind of legal relationship (whether it emanates from contract or law).

There is always a specific person from whom the right holder claims his rights and the
debtor discharges his obligation. After the lapse of the period, be it extinctive or
aquisitive prescription, the other person, who is the legal possessor and a creditor in
this transition, cannot require the performance of the obligation i.e. delivery of the
thing. Stated otherwise, the person who is a bailee or holding the thing in the name of
another person is to be obliged to deliver the thing. Does it not mean that he becomes
an owner? Though there may be circumstances where a person becomes an owner
without having possession, it is not the case that he has possession here? Are we to
bring the case under usucaption or occupation? Certainly it is not precription at least
for two reasons.
25
1. Usucaption under Ethiopian law works only with respect to immovable; and
1. The period of prescription is not acquisitive but extinctive. Though arguable it
sounds, it certainly comes under occupation Art. 1151 - where possession is a
requirement to become an owner thereof.

We also have the difficult issues in relation to incapacitated persons and corporate
persons. Minors are presumed not to have the necessary legal animus and they cannot
possess things for themselves. If they acquire possession, it must be through tutor or
other person who exercise his property right. Also corporate persons cannot claim
possession except through acts of their officers entrusted with their affairs. Is there
any possibility for these holders to be considered as possessors for themselves also
while they maintain the possessions of the minor or the cooperate person?

Art. 1140.
Thus far we went without touching so to what possessions means. But what is it that
really constitutes possession? Commentators agree that for a person to be a possessor,
in the legal sense of the term, he needs to have both the corpus, which some
authorities call it a fact, and the animus. The corpus is the thing over which the power
of control may be exercised while the animus is the state of mind of the person who
controls the corpus.

The definitional article provides that possession consists in the actual control which a
person exercises over a thing. The phrase actual control looks confusing or ambiguous
having regard to the various modalities of control a person may exercise over a thing
as well as the impossibility of invariable actual control.

Arts. 1141 & 1145
The possessor may exercise the control either directly (himself) or indirectly through
another person who holds the thing for him. This latter case has a subtle distinction,
which the law makes as provided under Arts. 1141 and 1145, indirect possession and
26
constructive possession, respectively. This is sound because of the practical
impossibility of actual control of things over which an individual has possessory rights
even in relation to things, which we carry with us wherever we go. Consider your
wristwatch, which you need wherever you go if it so happens that it fails to function
and you give it to a watch repair does it mean that you have lost possession thereof?
Either indirect possession (Art. 1141) or temporary hindrance (Art. 1142) may be
considered as remedies. We have houses we dwell in and their furniture. Suppose we
all go to the center of the city in a weekend locking them behind us. Do we thereby
lose possession of the house and its furniture? Are we in control of the thing after all
in the ordinary sense of the term? How about in its legal sense? We believe that for
the purpose of the law the word "control" is not employed in its ordinary meaning and
physical control is not necessarily implied. Control implies the exercise of some kind
of power over a thing putting it at the disposal of a right holder for the enforcement of
those possessory rights over the thing. The fact that you cannot handle your house the
way you handle your pen does not mean that you are not in control of it. Likewise, by
the mere fact that you locked your house behind you and went to somewhere else does
not make you lose your possessory rights.

A possessor may exercise power of control directly and personally or through another
person. If the possessor is exercising the power of control there will be no problem.
But there are various reasons for him to transfer control to another person and to
exercise that control that way. Any body who has some legal relationship with the
possessor may, at the will of the latter, hold the thing for him. This act of control is
sometimes called derivative possession because the holder is exercising this power he
has got form the possessor for some reason and not of his own. Surely that person is
holding the thing in the name and on behalf of the possessor. We can imply here
agency relationship, contract of deposit and related juridical acts.

But there is a third modality of control called constructive possession - which is
common in business transactions. According to Art. 2274 in the law of sale, the rule
27
seems delivery of the thing forthwith. There are circumstances also where we are not
able to exercise direct control of the thing, which we have decided to buy. In such
cases, there are certain requirements: that the third person exercising the actual control
for us is a trader as can be inferred from the "bankruptcy", the thing is of a certain
generic species, the trader individualize our share, and declare that he detains it on our
behalf. It is only when these things are fulfilled that we can talk of constructive
possession. This does not, however, affect the rights of the creditor of the trader
should the latter be declared bankrupt. This is because what has been transferred is
possession and not ownership. The creditors can satisfy themselves with the proceeds
of the thing that has been individualized for the new possessor.

Arts.1143 & 1144
Whether the control is exercised directly, indirectly or constructively, the possession
may either be real or symbolic. Possession is real when we exercise the control over
the thing (res) just as you or your friend have control over your pen (Art. 1143) and it
is symbolic when you receive the document representing the thing such as bill of
lading and warehouse receipts. (Art. 1144).

These two articles seem to have been drafted having the provisions of the Law of Sale in
mind (Art. 2273 ff.) Art. 1143 specifically talks about transfer of possession made by
virtue of contract as it can be effective by delivery because those provisions of law of sale
are applicable to corporeal chattels, and Art. 2274 states that delivery consists in the
handing over of a thing.

28
3. Ownership
3.1 Acquisition, Transfer, Extinction and Proof of
Ownership.
Before we discuss how ownership may be acquired, transferred, extinguished and proved,
it is sound to discuss first what ownership is. As a point of contention for political
ideologies and philosophical arguments, it has been defined in different legal systems
differently. The concept is not defined in this chapter, it has been unsatisfactorily defined
under chapter 2 of the Code to mean "the widest right that may be had on a thing". This
in essence is not a definition as only describes what ownership is. It is not even a proper
or sufficient description of the right as it begs the question as to how wide the right is.
When the law says ownership is the widest right, it is seen in relation to other rights such
as usufruct, servitude and possession.

In approaching the subject it may be good to describe it instead of defining it. Hence,
ownership is a bundle of rights such as the right to use, to collect fruits of the thing and
the right to dispose the thing in the widest way than other rights.

When Art 1204 (1) defines ownership to be " the widest right" on a thing that may be had
on a corporeal thing
, it does not mean that there is no limit for the exercise of

ownership right [emphasis added]. Sub-art.2 provides that ownership "may neither be
divided nor restricted expect in accordance with the law." The a contrario reading of this
provision is that it may be restricted or divided when the law provides. But what do the
words "divide' and 'restrict' connote?

Art. 1205 talks about the content of the right. It is wrongly entitled 'scope of the Right ".
The owner may use, exploit or dispose his property the way he thinks fit. These three
rights are bound together and are vested in the same person. For the use of the thing the
owner need to have possession of thing either, indirectly or constructively. The right of
possession of a thing emanates from the ownership right. As possession may be had on a

See the discussion on goods

29
thing either directly or indirectly, the use of the thing, we can reasonably conclude, may
be had in the same way. Fruits are the rights, which an owner has to gather for his
benefit. It refers to what is produced and collected from time to time or in successive
seasons.

The term "exploit" is employed to mean collection of fruits of the thing for two reasons.
Firstly, the right to use and right to dispose the thing are stated under Sub-art. (1) and (2),
respectively. What remains is the right to collect fruits. As a code there should be no
word that is not given effect, nor made redundant. Secondly, ownership is the widest
right and the legislature does not exclude the right to collect fruits, the latter does not
have any place to fall to, therefore, the term 'exploitation' seems to connote collection of
the fruits either when the owner of a house rents it or owner of a land saw crops and
harvest.

Another justification, which could be advanced for this interpretation, may depend on the
concept of usufruct and the same term has been under Art,1309 (1). The Amharic version
uses the equivalent English term " fruits".

Whether an owner collects fruits while he is using the thing is a practical question that
depends on the fruits to be collected and the nature of the thing.

The third category of right that an owner has over a thing is the right to dispose. This
disposition is the right to alienate the thing by destroying or transferring it to third parties
either for consideration or gratuitously, while he is alive or after his death.

These are contents of ownership right and their scope is described to be the "widest"
when seen in light of other proprietary rights. The scope of ownership right is in-built in
Art. 1204 both in Sub-Art. (1) as implied by the phrase "widest right" and in Sub-art. (2)
by the clause " nor restricted except in accordance with the law." When seen in light of
Sub-art. (2) of Art.1204, Art 1205 seems to be superfluous as it is listing only the rights to
30
use, enjoy the thing and dispose the same as the owner thinks fits. But it is not for
reasons stated above Art.1204 gives the essence of ownership and its scope while Art
1205 is stating content of the right and how and when it may be exercised.

Now lets us see the clause"neither be divided nor restricted except in accordance with
the law." What is to be divided? Ownership as a bundle of rights has the three distinct
rights we have discussed above in it. Each right may be dismembered and may, as it
constitutes an independent right, be transferred to or exercised by another person. For
instance one who has a possessory right may be given the right to use; a usufructuary may
have the right to collect the fruits of the thing; while the bare owner retains only bare
ownership (the right to dispose the thing). This dismemberment of ownership rights into
its component rights has to be made in accordance with the law. This sounds to mean
that the owner may not dismember such right, but it in fact is not for the power of the
owner to divide his ownership right into its components such as giving the thing on
usufruct or permitting servitude in it for the benefit of third parties is permitted by law.
Art.1205 gives an owner the right to exercise his right "as he thinks fit". However, this
exercise of right is not an absolute one. As man lives in a society, the law also provides
for restriction on the exercises of those rights. These rights are two types.

The first one is a restriction on the rights of the owner, which flow from the existence of
encumbrances vested in another person while the second is that imposed by the law.
There may be an overlap on the two types of restrictions when those encumbrances for
the benefit of third parties, such as usufruct and servitude, emanate from the law.

Those limits, which emanate from the law, may be imposed on the use, collection of the
fruits, disposition, or any combination of two rights. For instance a driver, assuming that
he is an owner, has to comply with certain regulations in the exercises of his ownership
right over the vehicle. There are traffic regulations such as speed limit, amount of load,
type of the thing to be transported with the vehicle. If an owner wants to use his house
for a night club while it has been constructed in a residence quarter, certainly it affects the
31
rights of residents there and it may create nuisance which would entail his civil and
probably criminal liability. So too, when the person desires to dispose his property. He
can demolish his building but how he demolishes it may affect the neighbors. Promise of
sale and contract of pre-emption are restrictions over the disposition of a property. So are
servitude and other rights such as joint ownership, usufruct, and right of recovery.

There is also restriction on the collection of fruits. If, for instance, an owner is collecting
fruits of the thing by renting, the rates of rent may be fixed as in the case of bus or taxi
service. For a single trip or for a specific distance a passenger is supposed to pay a fixed
amount. If he pays more than the rate fixed it might amount to donation or tip and not
fee. There are circumstances where you may be rendering that service to a specific group
of people only.

The last clause of Sub-art. (2) of Art 1204 " in accordance with the law" implies certain
types of restrictions- a restriction that has been provided by the law, if it is not circular.
Needless to state that consensual restrictions, such as promises of sale and contractual
pre-emption, are not restrictions in the strict sense of the term as they are the result of
exercise of the power over the thing by the owner, and if at all they are to be considered
as restrictions they come under the same topic- legal restriction- as they are to be made in
accordance with the law.

In some jurisdiction ownership is divided into perfect and imperfect. Ownership is said
to be perfect when the thing is unencumbered with any real right towards any other
person than the owner. It gives the owner the right to use, to enjoy the fruits and to
dispose his property in the most unlimited manner- united in the same person. Ownership
is imperfect when it is to terminate at a certain time, or on the object of it, being an
immovable, is charged with any real right towards a third person, such as usufruct and
servitude.

32
However it may be defined, ownership is incorporated in the Civil Code to express the
existence of an exclusive right to enjoy and dispose of a thing and to draw from it the
benefit it can yield. This right may be exercised on things corporeal or incorporeal,
movable or immovable, individually or collectively provided the thing is appropriable.
*

If this is what ownership is, now let us consider how a person/persons becomes an
owner/owners.

In some jurisdictions the ways that a person becomes an owner are categorized into two-
original and derivative. A person becomes an owner originally if he acquires ownership;
while derivative ownership implies transfer. This classification of becoming an owner is
implicit in the Ethiopian Civil Code that there are several ways through which a person
becomes an owner.

When we say a person acquires property, it means his becoming an owner of the property
is independent of the right of another person be the thing previously owned or not. In the
case of occupation the person is becoming an owner of the thing by the mere fact of
occupying it "with the intention of becoming an owner thereof". The thing might have
been owned before but abandoned or not owned at all. Here ownership is absolute and
not dependent on anybody's right. The same goes to usucaption that irrespective of the
right of prior owner of an immovable the possessor becomes an owner of the same when
certain conditions are fulfilled. In the case of accession, a person becomes an owner of a
thing, be it owned by another person or not, when it accedes to his property except in the
case of fusion or merger. In possession in good faith, the possessor becomes an owner of
the thing independent of the rights of the prior owner, again, if certain conditions are
fulfilled. All the four modes of becoming an owner have something in common, i.e.,
whether there was prior ownership independent of those prior owners. Hence he acquires
it originally. However, it should not mislead one to mean that the thing was not owned
before. It simply means that the acquirer becomes an owner of such thing not by virtue of
33
the right of prior owner of the thing, if it has been owned before, but it is the law that
vests the right of ownership on him.

When it comes to transfer of ownership things are different. As the adage goes, 'a person
cannot transfer what he does not have'; neither the transferee can acquire what has not
been transferred to him. Ultimately the right of the transferee is dependent upon the right
of the transferor and if the latter does not have right of ownership the former cannot
become an owner of the thing even if he takes possession of it and pays the price for the
same.

Yet, there is further difference among the modalities of becoming an owner of a thing.
While occupation and possession in good faith are applicable to movables (corporeal
chattels), usucaption applies only to immovables and transfer of ownership applies to
both movables and immovables ( be they corporeal or incorporeal). This classification
may be clear as we go along discussing each section of the code.

3.2 Acquisition of Ownership
3.2.1. Occupation- is the oldest of all models of acquisition of property. A person
who possesses a thing, which has no master (owner) with the intention of becoming an
owner of the thing, may acquire the ownership of such thing. There are certain requisite
elements under this (Art. 1151).

1. The first requirement is possession

a) that the prospective owner must have possession of the thing whether it is
exercised directly, indirectly or constructively. It does not seem to be clear whether
possession is used in the legal sense of the term denoting control over the thing as the
other requirement is intention.
b) the prospective owner must have the intention of becoming an owner of the
thing. Both the Amharic and the English version of this Article provide unequivocally

See the discussion on Possession.

34
that the intention that is required under this provision is " the intention of becoming
the owner" of the thing.

2. The thing should not have a master (an owner). Those things which do not have an
owner are of two types these are res nullius- things which do not have a master ever
before or which were not subject to ownership before and res derelictae, things which
were owned before but abandoned or the right of the previous owner has extinguished for
what ever reason. It still is not clear to which one of these class of things the law refers
to but when seen in light of the provisions relating to acquisition of ownership through
occupation particularly the provisions of Art 1151, and extinction of right of ownership,
both types of goods are susceptible to ownership through occupation. This is clear from
the readings of Art.1154 ff. Object lost and found.

2. The scope of application of this modality of acquisition of ownership of things is
limited to corporeal chattels. This seems for practical and social reason. Socially it is not
justified or at least impractical to require title for every corporeal chattel. Proof of
ownership with respect to this sort of gods is by proof of mere possession. If proof is by
possession, ownership must be acquired in the same way as loss of the thing or
prescription extinguishes ownership thereof. The thing also has to be susceptible to
possession or actual control, which effectively excludes incorporeal things. The
ownership of ordinary movables which is proved or presumed through possession. If the
thing is an immovable one occupation cannot be the right way of acquiring ownership
because registration is a requirement without which the right cannot be enforced. The
same could be said with respect to special corporeal chattels such as TV, Vehicles and
Trailers, ships and Aircrafts. They are not without master until the name of the previous
owner is struck off from the register of such goods. The question is whether the previous
owner can have his name struck off without replacing somebody for him. With respect to
Vehicles and Trailers for instance having regard to the reasons for registration, it does not
seem possible. Hence transfer of ownership is the best modality of becoming an owner of
such goods. It is for this last reason that ownership of incorporeal things such as patent,
35
trademark and trade name does not work through occupation. The rights exist only so far
as they are in the register of such goods and if they are struck off from the register they
cannot be without a master, as they cannot have existence at all.

a. Animals
Art.1152
"Animals" is a word used to denote both domestic and wild animals. Domestic animals
are those animals, which by habit or training live in association with human beings. Such
animals are chattels, flocks, pack animals, dogs, etc. The distinction is animals, which are
not domestic, are wild from those typically wild such as lions and tigers to deer, foxes,
and wild fowl including all fishes and reptiles. Sub-art. (1) is talking about tamed or
captive animals. It seems that this provision is dealing exclusively about wild animals
(which are not tamed in some way to live with man and are no longer fierce) or captive
(which are not trained to live with man neither are free but controlled by man by
maiming, poisoning or subjecting to a certain appliance) hindering their escape and
making them subject to private ownership for purposes of pleasure and exhibition. This
captivity presupposes wildness. However, as wildness is not a characteristic of
individual animal rather of the species to which it belongs, tamed animals also may be
considered as wild by having regard to the species to which they belong.

Art. 2074(3) defines domestic animals to be "those animals which it is customary to keep
for purposes of pleasure or gain." The a contrario reading is that those animals which are
not customary to keep for pleasure or gain are wild. This seems to be a double standard,
one objective and the other subjective. If we are attaching the character of wildness (or
domesticity) it is an objective one that wherever we go a lion is a wild animal and that we
cannot have such a lion as domestic lion. But if we are regarding the custom of the
community for the determination of wildness (or domesticity) of animal, it is subjective
as there may be a community where it is customary to keep a lion in a household.
Whichever way we are approaching it, we have an outlet that Sub-art. (2) provides that
Sub-art.(1) shall not apply to animals of the equine or asinine species or crossbreeding
36
thereof nor to camels and animals of the bovine species. The listing seems to be
exhaustive and exceptions are to be interpreted narrowly that we cannot extend the
provisions of Sub-art. (2) to other animals not covered by it. Those domestic animals,
which are governed by Art 2074, are not wholly covered by Sub-art. (2). How about
dogs, chickens and cats? They are customarily kept with man for pleasure or gain they
are not in the list of sub-art (2) neither are they in the list of sub(1). Does it mean they are
not subject to ownership by occupation?

For animals that are governed by the provisions of this article, when are they considered
to be animals without a master? We are referring to a case wherein they were owned by a
person previously because their original control seems to be regulated by a special law.
Hence the provision of the civil code applies only after this special law is complied with
and ownership is acquired on such animals and that owner has lost ownership when they
escape from his control. The fact that special permit is required for acquisition of wild
animals does not mean it is a restriction to specific people but to the general public that it
is a limitation on the original acquisition of those animals by private persons as they are
under government authority. The civil code is governing res derelictae.

What the law says is the occupier of such animal may become an owner "where they
escape from the control of their owner and he [their previous owner] does not attempt to
recapture them within the following month or [even when he attempts to recapture them]
he ceases for one month to attempt to recapture them". This raises the question as to the
proper calculation of time that at least in the first alternative, when are these animals said
to escape?

Authorities classify such animals into two: those which have the character of coming
back (animus revertendi), and those which do not have animus revertendi. In the latter
case, there is no problem that as of when they physically escaped from their owners. But
with respect to animals, which have animus revertendi, the period should be calculated as
of the day when the owner has lost its animus revertendi.
37
b. Bees
Art. 1153
Here it sounds that reference has not been made to which bees because it is providing for
"[b]ee swarms, which have left their hives". This presupposes a prior owner which is
further amplified by Sub-art. (3) which provides for chasing of the bees by their former
owner". The person in whose hive the bees settle becomes an owner by occupation for
two reasons. There is no positive activity on the part of the new owner, however, if the
former owner was chasing them and arrives at the place where they have settled
"immediately" may take them back. As to how immediate is "immediate" is subject to
interpretation. But does not it mean that wild bees are not subject to occupation?
Arts.1154-58 objects lost and found.

This group of articles is dealing with lost objects. Art.1154 seems to be, in both the
Amharic and the English text, wrongly entitled as "objects found". . Objects found may
be without a master. But here the law is dealing with things that have master. Sub-art.(2),
wherein the finder is required to exert some effort to inform the owner, implies that the
thing has an owner. If the thing has an owner it is a thing lost. But a person may find an
abandoned thing and this is not governed under Art 1154 for it does not have an owner
any more. Here the law seems to make a distinction between voluntary and involuntary
separation of a thing form its owner and Arts.1154 ff. are dealing with the latter- where
an object is separated from its owner involuntary.

Once a person found an object certainly it may not be possible for him to identify whether
it is lost object or abandoned object or even whether it is a thing which never had an
owner before. But the law indiscriminately imposes certain obligations on the finder.

First, if there are any administrative regulations, which require him to report his find, he
has to report. How, when and to whom is to be reported may be determined in that
regulation. So far it does not seem there exist such regulation. In the absence of such
regulation the law requires him to take appropriate measures in ascertaining and
38
informing his find to the owner. There is no clear indication as to what 'appropriate
steps" are but requires step that are' required in the circumstances". Regard need to be
had to the place and time the thing is found in taking those steps. Things found in market
places are lost, at least in the majority of cases, on market days. Things found in parks
are lost on the days, which the park is open. Things found in a bar are certainly lost
during the hours the bar is open. This enables the finder to determine when and how to
announce his find. The nature of the means the finder employs to inform the owner
depends on these circumstances. If the finder is not employing the means that is required
of the circumstance, he is violating the rules of "appropriate steps".

Secondly, until the finder identifies the owner and informs him of his find or restores the
thing to owner, he shall take possession of the thing found. The taking of possession has
two implications: it is a kind of entitlement for the finder when seen in light of Art 1157
i.e., if ownership is lost he becomes an owner of the thing, and it is, on the other hand,
imposing obligation on the finder when seen in light of Art 1155(2), 56 and 57, i.e. he
shall preserve the thing. If it is a perishable item, he has the obligation to sell it and
preserve the proceeds of the sale, which are to be delivered to the owner in replacement
of the thing.

Thirdly, while the thing is in his possession there are certain obligations, which he has to
discharge. He shall take all reasonable steps for the preservation of the thing found. Here
the law requires him to act on behalf of the owner in the preservation of the thing but it is
unauthorized agency (Arts 2257-65) as there is no contractual agreement between the
owner and the finder (Art 2199). What is reasonable may be determined by having regard
to the provisions of Agency. However, if the thing is perishable item or its custody is
onerous, the law empowers/obliges the finder to sell the thing at a public auction so that
the proceed replaces the thing sold. But what if dispute arises between the two on the
ground that the thing was not perishable or its custody is not onerous? Sub-art. (2) of
Art.1155 may be of some help that if it was reasonable to do so, certainly there is no
39
dispute. But again on what title the buyer becomes an owner? Is it by acquisition
(possession in good faith) or by transfer of ownership?

The other obligation is returning the thing: It may be the thing itself or, if it has been sold
for reasons stated above, the value of the thing. Whichever it may be, the owner may
claim for the delivery of the thing if he has not lost ownership thereof. Here the law does
not provide how ownership may be lost in this particular legal transaction and it seems
the case that the general provisions relating to extinction of ownership (Arts.1118-1192)
are applicable mutatis mutandis.

The foregoing discussions are about the obligations of the finder. But it does not mean
that he has only obligations. He also has certain rights, two of which are very clear.

The first and important right is implicit in the title of this section and paragraph, and
Arts.1155 (1) 1157(1) and 1193(1). He can exercise the rights of a possessor to protect
possession and to benefit from the consequences of possession. Possession in a normal
course of business presupposes ownership. But as he already declared under Art 1154
that he possesses the thing in the name of another owner (whom he doesn't know) it may
be argued that he is an indirect possessor. However, the a contrario interpretation of Art
1157 (1) is that when the owner loses his right of ownership over the thing for whatever
reason, the thing becomes "a thing without a master" and the finder becomes an owner of
the thing by occupation by virtue of Art.1151.

Secondly, in cases where the previous owner has not lost his ownership right and claims
the thing back, he has two types of expenses to make. The first is expenses incurred for
the presentation of the thing. If the thing itself is delivered to the owner there might be
expenses incurred in relation to custody or storage, transportation of the thing to the place
of storage, and if the thing has been sold at auction, expenses for the organization of the
auction have to be paid to the finder.

40
The payment provided for under Art.1158 is a reward to the finder. It is provided that
where the court considers that it is appropriate, it may grant the finder a reward not
exceeding a quarter of the value of the thing. It is clear from the reading of the article that
this reward is not mandatory unlike the other expenses discussed above.
But in the determination whether the finder deserves a reward and the amount, regard
need to be had to the likelihood for the owner to find the thing and the respective
financial position of the owner and the finder. The amount, however, cannot exceed a
quarter of the value of the thing.

The law sets a special period of limitation within which the finder may claim for such
reward if he has a right to. This period is one year. The English text provides that the
right is to be exercised "within the year following restitution". The Amharic version is
more clear that it says within "one year as of the day on which he restitutes the thing".
This does not, however apply to expenses incurred in respect of the preservation of the
thing.

What if the owner refuses to make such payments? In the case of expenses for the
preservation of the thing, if our reference to the provisions of the law of unauthorized
agency above is correct, it looks that the finder has a lien right over the thing he found.
Can he exercise this right for the payment of the reward (in fact, after it has been
determined to be "appropriate" and the amount is fixed by the court)?

c. Treasure and Antique
Arts 1159 and 1160
Though treasure and antique have many things in common, there is a distinction between
the two. Art 1159(3) describes treasure and provides that " a thing is deemed to be
treasure where it appears certain, at the time of its discovery, that it has been buried or
hidden for not less than fifty years "and no body can be shown to be the owner of it.
There seems to be four cumulative requirements that, first, the thing must be found
hidden or buried; second, it must be shown at the time of its discovery that it is buried for
41
not less than fifty years and thirdly, nobody can establish ownership thereof. The fourth
requirement, which does not seem to be clear, is that the thing found must be distinct
from the thing found in which it is found. That is, if thing is found on the upper surface
of the earth, or not fifty years old or somebody proves ownership or there is no distinction
between the two things, then the thing is not a treasure. This does not mean that it has not
been owned before but nobody can at the time of discovery, establish right of ownership.
When the law makes such requirements it is just making a distinction between lost things
and treasures? As it is evident from the English text of this article, treasures may be
classified into two as hidden and buried. Those treasures that are found hidden and kept
voluntarily by the previous owner and those that are found buried are involuntarily made
because of natural events such as earthquake and landslide. But they are always
movables.

Antiques on the other hand are governed and defined under Art.2 (a) of Antique
Proclamation No. 1966 to be "any construction or any product of or archeological
interest, having its origin prior to 1850 E.C." As implied from Art 3 (a) of the same
proclamation, antiquities may be movable or immovable and they are declared to be state
owned. They have historical and archeological significance. In both cases the case of age
is at issue.

Once a thing found is shown to be a treasure or antique, the finder does not acquire
ownership of the thing. This exclusion is absolute in both cases as provided under
Art.1159 of the Civil Code and Art.3 (a) of the Antique Proclamation, respectively. If it
is a treasure, it becomes the property of the owner of the thing in which it was found. The
English version says to the "owner of the land or the thing in which it was found" while
the Amharic Version says "to the owner of the movable or immovable". The Amharic
Version seems to be sensible in that if we use the word thing it includes both movables
and immovables and the land becomes superfluous. On the other hand, if we use the
word thing to mean movables, in this context, buildings are to be excluded from
immovables. Therefore, the clause "movables and immovables" on the Amharic version
42
seems to be sound as the word immovable can be given effect through building as land is
owned by government. The question that readily comes to one's mind is if the thing is
found buried or hidden in land, who shall be the owner?

In the case of treasures, the finder is entitled only to a reward to the tune of half of the
value of the thing. What if the thing does not have a market value? The rule of a treasure
seems to be an exception to the rule of object found, though provided for separately, that
while the thing is without a master the finder does not take ownership thereof. But can we
say that the owner of the thing, be it movable or immovable, in which a treasure is found
acquires ownership of the treasure by occupation or accession?

3.2.2 Possession in Good-faith
Arts 1161-1167
Possession in good faith is one modality of acquisition of ownership over ordinary
corporeal chattel by the new possessor when possession is accompanied by a contract of
sale of the thing under consideration. The possessor needs to have the belief that the
person with whom he is concluding the contract has a valid title of the thing and he has
paid the price thereof. Here the law is trying to accommodate two conflicting interests-
the interest of the previous owner and security of commercial transaction (or the interest
of innocent third party acquirer).

This modality of acquisition of ownership applies only to ordinary corporeal chattels and
not to immovable and special corporeal chattels where registration and delivery of title is
a requirement for the transfer of ownership. If this same obligation were imposed on the
new acquirer of an ordinary corporeal chattel, it would have a bad consequence on
modern commerce where sometimes, in the absence of register, it is difficult to ascertain
ownership otherwise than by possession of the thing which the law recognizes is a valid
proof.

43
It does not mean, however, that any third party acquirer of such things becomes an owner
by the mere fact of the existence of sale agreement. The law clearly provides that certain
conditions have to be fulfilled.

1. The first requirement is that there has to be an agreement having acquisition of
ownership in view. It is a sale agreement and not any other.
Here we dont have to be deceived that the "buyer" of the thing becomes an owner of the
thing by transfer. But it is just to show what is apparent in the contractual will and the
"buyer" acquires ownership of the thing not because of the contract of sale but because of
the law; After all transfer presupposes previous ownership right.

2. As there is no gratuitous acquisition of ownership of corporeal chattels through
possession in good faith, the contract has to be made for consideration. Though the law
seems to be silent on the issue, payment may be made in any modality provided that it is
appropriate for the parties;

3. The "buyer" (good-faith acquirer) must take possession of the thing concerned;

4. The buyer must be in good-faith that he must have the belief that he is contracting
with the person entitled to transfer the thing to him; and

5. The good faith must exist at the time of entering into possession. These
requirements are cumulative that if any one of them is lacking, he cannot acquire
ownership. If they exist together, he acquires ownership even though the one with whom
he has concluded the agreement does not have title or power to transfer ownership.

Good faith is defined to be the belief on the part of the acquirer that he is contracting with
person entitled to transfer the thing to him. This mental state, as it is difficult to prove in
the affirmative is presumed to exist and any party challenging the transaction on the basis
of the issue of the existence of good faith, must prove otherwise by producing evidence.
44
Arts.1164-1167
This group of provision is exception to the above discussion on acquisition of ownership
of corporeal chattels by possession in good faith. Art 1165 (1) provides that stolen
properties may be reclaimed from third party acquirers.

If, however, the good-faith acquirer acquired the thing from a tradesman dealing with
similar articles, in a market overt or at a public auction, he may require the seller (not the
owner) to reimburse him with the price he has paid.

The owner, as provided under Art 1165 (1), may claim the restitution of the stolen thing
in a specified period. The English text says three years while the Amharic text says five
years from the date on which the theft occurred. Which do you think should prevail?
What if the person is not aware of the fact of the occurrence of theft within such period?
Does this period of limitation contradict in any way with what has been provided for
under Art, 1192?

Arts.1164 and 1167 on the other hand, provide for circumstances wherein reclaim may
not be made. The former article provides that, if the owner relinquishes the "ownership"
of a corporeal chattel he may not reclaim it from the person who becomes an owner in
good faith. This provision employs the word "ownership" which is absurd because if he
relinquishes his ownership the thing becomes res derelictae (and his ownership
extinguishes and) where ownership may be acquired through occupation and not through
possession in good faith. But the Amharic version clearly uses the term "possession"
which looks sound when read in light of Sub-art. (2) of the same article. Here the law is
talking about voluntary relinquishment of possession and not involuntary, because the
latter would either be stolen thing or a thing lost. Implicitly the law is forcing owner to
select their depositee, bailee or indirect possessor carefully as they are precluded from
raising the defense that the person into whose possession they relinquished their
possession acted fraudulently. It does not mean again that he is without remedy. He may
45
have personal action based on the contract he had concluded with, against the person into
whose possession he relinquished his possession.

It is provided that currency and securities to bearer (which are assimilated to corporeal
goods under Art 1128) may in no case be claimed from persons who acquired them in
good faith. They may not even be claimed from persons who acquired them from a third
party in good faith. This is because money does not have identity and currency is a
universal means of exchange the law is trying to maintain its free circulation. The same
goes to securities to bearer as provided under Art.721 Com.C. that are transferable by
mere delivery of the currency or the instrument it is unreasonable to enquire as to where it
has come from.

But the reclaiming is prohibited in these two instances when they are acquired in good
faith. Does it mean that the acquirer becomes an owner thereof if he enters into
possession in the belief that the person from whom he acquires the thing has a valid title
to transfer, or, should we understand it to mean all the requirements of possession in good
faith have to be fulfilled? If we are opting for the latter what is the consideration to be
made for currencies?

3.2.3 Usucaption
Arts. 1168-1169
The word literally translated, mean acquiring by usage. It is a modality of acquisition of
ownership through prescription and it applies only to immovables specifically to
buildings, as land is not subject to private ownership.

In order to acquire ownership of the immovable the person needs to exercise possession,
which is free from any defect, over the thing and he must pay taxes for fifteen consecutive
years. The word "consecutive" seems to mean that there should not be interruption of the
period of limitation in favor of the possessor (or against the owner) as has been provided
for under 1169(1). However, it does not mean that possession or the payment of tax
46
should not be interrupted otherwise than the activities of the owner. Art 1150 (1)
provides that the "new" possessor (who is entitled to avail himself of the prescription)
shall benefit by the periods of prescription having run in favor of the former possessor
where such former possessor could avail himself of such prescription. If the former
possessor is not entitled to avail himself of prescription as has been provided for under
Sub-art. (2) of Arts 1150 and 1314(2), because the payment of tax is to be made in the
name of the bare owner (as has been provided for in the Amharic text while the English
text is silent on the name test), it benefits the bare owner and not the Usufructuary. It
seems the case that even if the usufructuary has paid taxes in his own name by violating
the rule, he will not acquire ownership.

The law makes cross-reference to the general contract provisions in relation to
interruption, enforcement and waiving of period of limitation.

3.2.4 Accession
The fourth mode of acquisition of ownership, which the civil code recognizes, is
accession. Accession is defined in two extreme senses narrowly as "a process whereby
one thing becomes attached to and inseparable from the other," and widely as "a case in
which an addition to the object of someone's ownership". Under Ethiopian law, though
accession is not defined anywhere, it looks to have been used in the wider sense. This is
because, though the rule in accession is union of things it is not a requirement that the
owner of thing that are united to form the resultant union be separate as in the case of
breeding.

Accession may result either from natural act, i.e. natural accession, or acts of man i.e.,
artificial accession, or both. Yet, a person may become an owner of another thing, which
accedes to his, and that other thing may or may not have an owner. Be it previously
owned or not, ownership is acquired if the respective conditions are fulfilled. However,
there seem to be a general trend of classification of things as to whether they had owners
or not depending on the nature of accession i.e., whether the accession was created by
47
union or by separation of things. If it is created by the union of things, which is the
general rule of accession, those things belong to different owners. When it comes to
accession by separation, previously we had one thing, which gave a fruit, and this fruit is
allotted to the owner of the principal thing, which gave the fruit. Here we see only one
owner.

We have devoted few pages in discussing the following items; having regard to the
provisions of the civil code we shall discussion in accession of fruits, accession of
movables to immovables, accession of immovables to immovables and finally accession
of movables to movables. An immovable is regarded always as a principal thing unless
seen in light of another immovable where choice is mandatory. Whatever is attached to
or separated from an immovable belongs to the owner of the immovable. Arts.1170 and
71 Accession of Fruits.

Fruits are increases of a thing in conformity with its purpose without substantial
diminution of the principal thing. It may or may not be at a regular interval. Fruits are
further classified into natural and artificial fruits. The artificial fruits are further classified
into civil and industrial fruits. Natural fruits are those fruits, which are the periodic
increments of animals and plants. Art. 1171 provides for breeds. One would say Art.1170
Art 1171 is superfluous. The ownership of fruits of the breeds is given to the owner of the
mother should the owner of the father claim.

Civil fruits are fruits, which are entitlements either by virtue of law or agreement. Such is
the case with interests of sums of money or profits and rents. Fruits that may be obtained
by cultivation or workings on the soil are industrial fruits (fruits of labour), but they have
some element of natural fruits. Products are fruits that may be collected from a thing by
adding something to the principal thing mainly in the form of labour and raw material,
which consequently diminution the substance of the principal thing. Products, which are
of periodic nature, are assimilated to fruits. But it is not clear where the demarcation
separating the periodic and non- periodic products lies. Moreover, there seems to be
48
requirement that the products have to be collected according to the usage and in
conformity with the purposes of the principal thing. The whole idea is; natural and
industrial fruits, however unclear their difference may be, become property of the owner
of the principal thing upon their separation from the latter.

a. Accession of Movables to I mmovables
A person can only acquire ownership and there can exist accession of movables to
immovables when the immovable is incorporated to the immovable and become an
intrinsic element of it. The reason is that when a movable becomes an intrinsic element
of an immovable all the rights which third parties had on such thing shall be extinguished
and the thing ceases to constitute a distinct thing.

This mode of acquisition is of two type; when the owner of movable which is acceded to
is not the owner of the immovable* and when the owner of the immovable uses others'
material and accedes it to his own immovable. The Ethiopian Civil Code provides for
three cases.

They are considered to be movables while there are circumstances they become
immovables. For clarity of ideas we refer our reader to our discussion on classification of
things (goods) into movables and immovables. Here we are not generalizing that they are
movables because they are immmovables under different circumstances, such as when the
owner of the land takes ownership of the crops and trees on his land until they are to be
fell, and they may still be considered to be movables by anticipation when they are to be
separated from the land either because they are to be removed by the land owner himself
or the sower or planter since the land owner does not acquire ownership.

Crops. Arts.1172-1174
There are two cases; if the person saw against the clearly expressed will of the land
owner, all the harvest would go to the land owner and if the land owner, while he has the
opportunity to make so, does not object to the sowing, the harvest would go to the sower
49
(Arts.1172(1) and 1173(1), respectively). In the former case if the harvest has been
reaped the whole crop shall be the property of the landowner. This is the case even when
the land owner was not in a position to express his objection to the sowing for whatever
reason (as provided in the Amharic Version) such as because of his absence from the
vicinity or serious illness or because of lack of knowledge.

Sub-art. (1) of Art 1173 seems that all the harvest would go to the sower. That in fact is
not the case. It only talks about his right with respect to tilling and reaping of the harvest
and the obligation of clearing the land after harvest. But as the absence of objection due
to inability and lack of knowledge of land owner are covered under Art.1172(3) the three
Sub-articles of Art.1173 talks about any kind of mental state of the land owner whether
he failed to object while being aware of it or not. What matters here is the mental state of
the sower. First, he is entitled to till and reap what he has sown. Secondly, in relation to
the amount of the harvest that he is going to collect, it all depends on his state of mind
that:

If he acted with the belief that he was the owner of the land and was entitled to saw seeds
therein, one quarter of the harvest devolve upon the sower and three quarter up on the
land owner;

If he knew he was not the owner of the land or was not entitled to sow seeds therein, the
whole crop shall be the property of the landowner. His knowledge of such fact has the
same legal consequence as though the landowner had expressed his objection. Art
1172(2).

The land owner is entitled to such amount of harvest as has been provided under
Arts.1172 and 1173 be the land previously cultivated or not. But if the harvest is sold,
given away to a third person or consumed, the landowner is entitled to the value which is
to be calculated on the day on which he makes his claims. As the right does not exist ipso
50
facto the landowner has to make his claim in one-year period to be calculated from the
day on which the crop has been reaped.

Plantations. Arts.1175-1177
To reproduce what has been provided for in the Civil Code, "whosoever plants trees on
land the property of another against the clearly expressed will of the land owner is
entitled to any compensation for the enrichment occasioned to the land owner. If the
landowner instead of taking ownership of the trees requires their removal, however, the
planter bears the costs incurred in removing the trees. If the plantation was made with the
permission of the landowner which results in joint ownership of the planter and the land
owner, the latter may at anytime terminate the joint ownership and acquire the full
ownership of the trees against payment of compensation the amount of which is to be
fixed by agreement of the two. If they are not able to reach an agreement on the amount
of compensation, the law provides that it shall be equal to one-half of the value of the
profits which are likely to be derived from the trees during a period of ten years, where
such trees are normally grown for their products, or one-half of the value which the trees
are likely to have after a period of ten years where such trees are normally grown for their
products.

In both cases, it is to be reckoned from the day on which the landowner expressed his
intention to terminate joint ownership.

Unlike crops, however, the Code does not regulate case where the landowner neither
expressed his will to the plantation nor object to it. That is the case where, for example,
the landowner was aware of the plantation but failed to object, or was unable to object
because he was not in a position to for whatever reason. We believe we can extend the
provisions relating to crops to plantations by analogy. Thus, if the planter assumes
himself to be the owner of the land and was entitled to plant trees, he should not be
deprived of the trees he planted, at least the owner of the land should compensate him if
he wants to take the trees. But if the planter knew that he was not entitled to plant trees
51
there in, despite the fact that the landowner does not express his objection to the
plantation, the whole tree should go to the latter.

Buildings. Arts. 1178-1180
Where a person erected a building on the land of another person against the clearly
expressed will of the latter (the landowner), like plantations and crops, the builder has no
right on such building. The landowner has the option, without the obligation to pay
compensation, either to evict the builder or order him to demolish the building, which he
has erected over his land. This is also the case where the landowner was unable to object
to the building.

If the landowner fails to object to such erection of buildings, however, while he is aware
of such construction, the builder shall be the owner of such building and the landowner
may evict him, if he wishes against payment of compensation. The amount of
compensation is to be fixed by the two parties and failing agreement, it may be fixed in
accordance with the provisions of the title of the Civil Code relating to "Compromise and
Arbitration" (Title XX Arts.3307-46). But the builder is entitled to the full amount of
compensation only where he was not aware of or could not have known the fact that he is
not an owner of the land or was not entitled to erect a building thereon. If however, he
knew or should have known that he was not the owner of the land or was not entitled to
erect a building thereon, the amount is to be reduced by three-quarter and he is entitled
only to a fourth of it. The builder may, however, take the building down any time at his
expenses and he has the obligation to clear the land.

These seems to be a contradiction at least a difference between the Amharic and the
English texts of Sub-art. (3) of Art.(1179) that the English version says the foregoing two
Sub-articles are not applicable unless the land owner was aware of the building and failed
to object thereto. What is the a contario reading of this provision? Does it mean the
builder shall not become an owner thereof or the landowner cannot evict the builder while
he is able to evict the builder he cannot be obliged to pay compensation? The Amharic
52
version on the other hand provides that the "foregoing provisions of the two Sub-articles
are applicable even when the landowner failed to object being aware of the construction
of the building. To which of these texts should we opt for? It looks that the Amharic text
is somehow sensible in the sense it has a counterpart provision, Art 1173 (4) which under
both texts provides that the provisions of Sub-arts. (1-3) are applicable even where " the
landowner was aware of the sowing and failed to object thereto".

Art. 1181
The second modality of accession of movable to an immovable is when the owner of land
uses the material of another person to build, plant, etc. In such cases the landowner
becomes the owner of such materials. It does not make a distinction between an owner
undertaking such activities in bad faith and in good faith. But he is obliged to refund the
value of the materials and pay compensation in appropriate cases. That is if the owner of
the materials was to use them for a certain purpose when the landowner uses them the
owner of the thing loses his right of ownership over the things (also see Art.1134 (2)) he
may suffer some damage. In such and other similar cases, he shall be entitled to
compensation and under no circumstance he is entitled to take the property back. The
amount of compensation may be calculated by having regard to the provisions relating to
extra-contractual liability and unlawful enrichment.

b. Accession of Movables to Movables.
Arts. 1182 and 1183
This class of accession is generally classified as movables to movables and it does not
necessarily mean that the two things are corporeals as in the case of transformation
wherein a person uses his labour to transform the substance of a thing belonging to
another person into another thing.

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Specification (Transformation) Art. 1182
It is an act of working with or transforming a substance in good faith, which did not
belong to oneself by exerting only labour, the value of which is greater than that of the
substance. Here we see three fundamental requirements of the law:

a. the work or transformation resulted in a " new thing",
b. the one transforming the thing acted in good-faith and
c. the value of labour exerted on the substance is greater than the value of the
substance, then the one transforming the thing becomes an owner of the thing.

They are cumulative requirements. If any of them are lacking he shall not become an
owner of the thing; instead the thing belongs to its owner and the one exerting labour on
the thing may claim compensation by virtue of Sub-art. (3). of the same Article.

Yet all the three requirements are not clear. As to what "new thing" is not provided for in
the Code; neither is it clear from the reading of the provisions, whether it has to be new in
form or substance. What kind of good faith is required here under? Is it a belief that the
substance belongs to him or a total absence of bad-faith to take the thing by transferring
its substance? Or is there any other alternative? How is the value of the labour to be
calculated? Does it have an objective measure or only by having regard to the difference
in the change of the value of the thing? What if the person exerted very little effort and
the value of the thing increased by three fold, for instance? What if a person has exerted
all his power on it for a long period of time, but he was able to bring only minor change
in the value of the thing? Do these two persons have equal entitlement?

Be as it may, once these conditions are fulfilled ownership is acquired by the person who
exerted his labour. The previous owner of the substance is not without remedy. He can
make his claim based on the provisions relating to extra-contractual liability and unlawful
enrichment.

54

Merger and Embodiment (Confusion and Adjunction) (Art 1183)
Merger is a situation where two or more materials belonging to different owners are fused
or brought together forming a union so that they cannot be separated without deterioration
or only at the cost of excessive labour or expenses; the property of each can no longer be
distinguished and what dominates is confusion. While embodiment (adjunction) is the
union of two or more things belonging to different owners, so that they from a single
whole. In embodiment, though each of the material is distinct and recognizable part of
the whole, one is considered to be principal and the other is "accessory". As it could be
understood from the reading of Art 1183 (1) material unity is necessary. Hence the word
"accessory" here seems to be misused and the legislature seems to intend to employ the
phrase "intrinsic element" of the principal thing as the right of third parties is not affected
because a thing becomes an accessory of another (see commentary on (Arts. 1131-1139).
In such cases where one of the things is considered to be an intrinsic element of another
the whole thing belongs to the owner of the principal thing. When it comes to merger,
however, the thing that merged together is to be owned jointly by those owners in
proportion to its component parts prior to the mixture.

Though we are trying to make such a fine distinction between the two kinds of accession,
it seems that there is no distinction between merger and embodiment as they are subject
to the same provision (Art 1183) and under Sub-art. (1) the law expressly provides as "
mixture or embodiment."

Sub-art. (3) makes reference to the provisions relating to extra-contractual liability and
unlawful enrichment if an owner of the component suffers any damage. One could argue
that it is applicable only to embodiment since in merge both previous owners are joint
owners of the new thing in pro rata the value of its components parts. We believe that
there are two reasons why it should also be applied to merger: first the law expressly
provides for both merger and embodiment and secondly, even when he becomes a joint
55
owner, the joint ownership may be created without his consent or knowledge and he
might have suffered some injury which need to be compensated.
3.3 Transfer of Ownership
Arts. 1184-87
Unlike acquisition of ownership where a person becomes an owner of a thing
appropriable independently of the title of any previous owner, transfer of ownership
presupposes a previous owner. Hence the title of the transferee is dependent on the title
of the transferor (previous owner) and the former acquires only what has been transferred
to him by the latter, be he an owner of the thing or authorized by the owner to dispose the
same, and that he cannot transfer what he does not have.

Art. 1184 provides that transfer may be by virtue of law or by agreement. As can be seen
from the following provisions, it may also be made by virtue of will.

Depending on the category of the thing subject to transfer (movable or immovable) the
formal requirement of transfer is different. In the case of an immovable, an entry in the
register of immovable property is required. Art.1723 on the other hand provides that" a
contract creating or assigning rights in ownership or bare ownership on an immovable
shall be in writing and registered" This makes the provisions of Art 1185 superfluous.
So long as the provisions of Art 1676 (1)are there we cannot in any way justify the
existence of Art. 1185 unless we make some kind of compromise by treating Art 1185 as
a special provisions and Art 1723 as a general provision.

With respect to corporeal chattels ownership may be transferred to the purchaser or
legatee at the time when he takes possession of the thing in one of the ways that has been
discussed elsewhere. Possession alone is not sufficient. But it has to be accompanied by
a valid juridical act be it agreement (of sale or donation), will or a testate succession,
followed by delivery. Delivery has been defined under Art 2274 as consisting of the
handing over of a thing and its accessories to the transferee in accordance with the
juridical act which is the cause of delivery. But this rule works only for ordinary
56
corporeal chattels wherein no other formality is required for transfer and possession raises
presumption of ownership (Art. 1193). Because Sub-art. (2) of Art 1186 provides that
provisions relating to special corporeal chattels such as TV and Vehicles and Trailers are
not affected by this provision. Transfer of special corporeal chattels follows other
requirements. Hence registration also is a requirement for transfer of ownership for
various policy reasons.

However, as an exception to the general rule and to give effect to the parties freedom of
contract, ownership may be transferred at a different place and time that has been
discussed above. Yet it shall not affect third parties unless the latter have "accepted" such
provisions or the provisions of the agreement are entered in a public registry. The
Amharic text on the other hand made the case of publicity and acceptance by those third
parties a cumulative requirement for the literal translation says" unless they are registered
in a public registry and accepted by third parties or they are registered and made known to
the public (third parties)". This registration and acceptance of third parties is contrary to
the general understanding of the purpose of registration that if some thing is registered it
is considered to be known to the public and takes effect on third parties. In this respect
the English text seems to be sensible. But why the need that third parties accept it? If
they are, presumed to be aware of the existence of such relationship isn't it sufficient?
Isn't that the main purpose of registration?

3.4 Extinction of Ownership
Arts. 1188-1192.
Extinction of ownership is a juridical fact by which a right of ownership comes to an end.
Ownership extinguishes where any of the elements which are necessary for the
continuous existence of ownership are lacking such as striking out of register in the case
of immovables and special corporeal chattels and loss of possession in the case of
ordinary corporeal chattels. The extinction may be absolute where it is extinguished
without any subsequent owner as in the case of loss of the thing (Art 1188) and
abandonment (Art.1191) or relative where in ownership is extinguished by mere change
57
of an owner such as acquisition by third parties (Art. 1189).

The law provides for, under this section specific facts which evidence the extinguishment
of ownership.

1. The first is when the thing is destroyed totally or if while it materially exists, it loses
its individual character which made a thing as such, appropriable and useful. This is an
absolute extinguishment of ownership over a thing be it corporeal or incorporeal. If a car
is burned down and turned into ashes or a building is demolished, certainly they are not
things appropriable. So as not to be appropriable or useful, the thing must either be
destroyed or lose its individual character. A thing looses its individual character when it
is immobilized, has constituted an intrinsic element of a principal thing or accedes to
another thing and form part of that thing as in the case of transformation and adjunction.
It does not work for merger as the previous owners of the components of the thing
continue to be joint owners of the " new thing". If the thing is lost it would come under
"Art. 1189 because, before the period of prescription lapses, a person's right is not
extinguished until ownership over such thing is acquired by a third person.

2. In case of immovables, as ownership may be secured either through transfer or
usucaption, entry has to be made in a registry of immovables. This is a requirement under
Arts. 1185, 1723 (1) and under other relevant provisions of the Civil Code. If the entry
that has been made in relation to the immovable property is struck off, ownership over
such immovable is extinguished. This is because registration is one of the requirements
for the validity of the juridical act that bestows ownership right over an individual.
Likewise, it is the registration that legitimatizes ownership over certain special corporeal
chattels and certain incorporeal things such as patent. When the entry made in relation to
that particular patent is struck off ownership over such patent also terminates or
extinguishes.

The striking off of the entry made may be absolute as in the case where the period for
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which the patent right was granted expires or it may be relative as has been provided for
under Art. 1189 where the thing is transferred to or acquired by a third party in
accordance with the law.

3. A thing may be owned either individually or jointly. In both cases ownership exists as
a unit. It seems the case that two ownership rights (to put it numerically) cannot co-exist.
Art. 1189 is envisaging this situation that when a thing is transferred to or acquired by a
third party in accordance with the law, unless they are creating joint ownership, the rights
of the previous owner is extinguished. A person cannot acquire ownership of a thing
through occupation, usucaption, accession or possession in good faith without the right of
the previous owner having been extinguished, or one cannot transfer full ownership while
retaining it at the same time. It is against the rule of non-contradiction or rule of identity,
whichever way we understand it.

4. Ownership may be extinguished when a person abandons his property by expressing in
unequivocal manner his intention to waive his right of ownership. This in fact is one of
the rights of an owner, a specific mode of disposition of a property.

5. The last mode of extinguishment of ownership right, which is envisaged by this
section, is extinctive prescription. It provides that if a person failed to exercise his right
for a period of ten years by reason of his not knowing where such chattel was or that he
was the owner thereof, his right is extinguished. It does not seem to be clear whether lost
things may be covered by this provision though ownership may not be acquired by third
parties. Yet this provision is contrary to what has been provided under Art. 1190 that here
the owner does not have knowledge that he has a right over the thing or the whereabouts
of the thing while in the latter case the owner abandons his property with full knowledge.
It is clearly provided, however, that both provisions are applicable to corporeal chattels
only.

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3.5 Proof of Ownership.
Art. 1193-1198
For a person to become an owner the law requires certain facts to exist. It may be
possession, registration etc. For extingushment of ownership, any of those facts, which
are required to exist for the transfer or acquisition of ownership, must be shown not to
exist. Proof of ownership, then, is proof of facts, which are required for the acquisition or
transfer of ownership has occurred and those facts whose continuos existence is required
exist. Stated otherwise, proof of ownership means proving certain facts relevant for the
creation/ transfer/ acquisition of ownership have occurred and they are not extinguished.
The facts that are required to be proved as the requirement for acquisition or transfer of
ownership differ depending on the nature of the thing. But all what the law provides for
under this section is only presumption and not proof. If party proves the existence of
basic facts, the law presumes ownership. The law might be envisaging practical reasons
for doing so. It is difficult to require title deed for every bits and pieces of things that
individuals possess neither does it seem just to prove ownership over immovables by
possession or occupation only.

1. As ownership over ordinary corporeal chattels may be transferred when possession is
transferred, whosoever is in possession of an ordinary corporeal chattel, is presumed to
possess it on his own behalf and to be the owner of such thing. If anybody disputes such
ownership, the obligation to prove that the presumption is wrong in a particular
circumstance is on him.

2. Any vacant immovable in the country is the property of the state. This intoday's legal
regime means buildings and not land, as it is wholly owned by the state. But in respect of
buildings the issue of title deed by the concerned administrative authority to the effect
that a given building to a given person raises the presumption that such person is the
owner of such immovable.

Prior to issuing a title deed the concerned administrative authority has to require that the
60
title deed previously issued in relation to the same immovable be returned to it so that it
may be cancelled. If it is alleged that such previous title deed has been lost or destroyed,
it has to require the person applying for a new title deed to produce sufficient security to
cover such damages as may be caused to third parties by reason of the previous title deed
not having been cancelled.

But the law also provides that if the administrative unit fail to undertake these steps the
state shall be liable for any damage caused to a person who has acquired a right on an
immovable on the basis of a title which was not issued in accordance with the law or was
issued by an authority having no jurisdiction.

Damage may be caused not only as a result of a wrongly issued title deed but also by
failure to cancel the already issued one, which should have been cancelled. Hence the
government is liable also for damage caused for failure on the part of an administrative
unit to cancel a title deed. As the liability of the state seems to be extra-contractual, the
law reserves for the state to claim against the public official who is at fault.

A third party disputing the validity of presumption of ownership established by title deed
may produce evidence to rebut the same by proving either:

a) the title deed was not issued in accordance with the law or was issued by an
authority having no jurisdiction; or
b) the title deed was issued on the basis of an invalid act; or
c) the person acquired the ownership of the immovable ( building) after the day
on which the title was issued. The question that comes to one's mind may be what
is an invalid act"? We may consider the general requirement of the law in the
formation of contracts.

Proof of ownership over land may be shown by proving the boundaries are made in
accordance with the cadestral survey plan and the boundary marks found on the land.
61
When there is disparity between what is appearing in the casdastral survey plan and those
pointed out on the land, the former prevails.

The law also provides that all buildings, plantations and works on land shall be deemed to
have been made by the owner at his own expense and to be his property. However, today
land is owned by the state. Are we supposed to presume that such construction or
plantation has been made by the state? With respect to party- wall the law provides that,
unless one parcel of land only is fenced in, any wall or fence separating two parcels of
land shall be deemed to be jointly owned by owner s of such parcel.

Again, a ditch is not deemed to be jointly owned if the embankment is found on one side
of the ditch only; it is rather deemed to be the sole property of the owner of the land on
which the embankment is. Water and gas pipes, electrical and other lines are also deemed
to be accessories of the undertaking which they originate from and deemed to be the
property of the owner of such undertaking.

In all cases, however, be it the case of buildings and other works, party walls, ditches or
installations of water, gas and electrical supply, the presumption may be rebutted by
production of evidence.

3.6 Notes on Arts. 1207 - 1227
The desire to reduce dispute over land, the need to utilize land efficiently and the wish to
express the idea that ownership is not absolute are the driving forces of these stipulations.

An owner of a tract of land is at liberty to enclose his land; he can use any material of his
choice if he opts for having his plot fenced (1207). In order to reduce dispute between or
among neighbors, every landowner is duty bound to assist in the effort of his neighbor to
make a fluid boundary certain (1208). Ownership over a plot of land stretches directly
below the surface, this does not mean that this prerogative would go indefinitely; it only
means to the extent necessary for the exploitation of the plot (1209). When we say to the
62
extent necessary, it means for example, an owner in excavating or in carrying out works
below the surface of his land may not shake his neighbor's land, or endanger the solidity
of the works thereon (1210). Ownership also extends to the airspace directly above that
plot; again this cannot go upward indefinitely (1211). Where branches or roots springing
from adjacent plot extend to a neighbor's land, the owner can apply to the court with the
view to securing order to effect that the neighbor will cut such branches or roots; this
relief has to be sought within one month calculated from the date of the encumbrance
(1212(1)). If the roots encumbering the adjacent land rise on the surface of the earth, the
neighbor himself (without resorting to court) can cut them (1212(2)).

As a rule the owner of a plot is within his power to build or not build; the quality of the
construction, the time of construction, etc. rest on him. So is the type of the plants he
grows (1213). As a rule because town planning laws may impose restrictions on the
owner variety of ways. He may also be precluded from growing certain plants. Whether
the owner has fenced in his plot or not, access to his plot exclusively rests upon his
permission; if no permission is given to third parties then, they cannot lawfully enter his
plot (1216). There are certain exceptions to this rule. One is the case where a person
encounters actual or imminent danger either to his life or body or his proprietary interest
or the life or body or property of another is facing or about to face danger. In this case
owner of land is duty bound to give access; he can only claim damage (1217). The other
circumstance is in attempting to construct or repair a building a person may be in need of
having access to his neighbor's plot; the neighbor cannot deny access; he can claim
damage, if any (1218). A person can have a legitimate access to another's land if his
things have been carried away or his animals or poultry have strayed on some body else's
land. The owner of the plot is given the right to demand damages and in order to make
this right effective, he is given a lien right over the things on his land. The owner may
prevent the owner of the things or another interested person from entering into his land if
he forthwith conducts the search (1219). The fourth exception is the case where an owner
is obliged to allow the installation on his land of water, telephone, gas, electrical lines or
similar works for the benefit of other plots, be they adjacent or not; the person allowed to
63
make such installation is expected not to cause maximum disturbances to the land
charged. The owner on whose land the works are done is entitled to advance and full
compensation; he can remove and place the installation on some other part of the land
provide he himself covers the expenses of such removal (1220). On the ground of
efficiency an owners of a plot is obliged to give access to a person owning on adjacent
plot whose access to the public ways is insufficient or to lands which are encircled. In
this case too he can demand compensation (1221). This right of way is not to be
demanded from any neighboring land but from those neighbors or persons who can fall
within the scope of Arts. 1222 and 1223. Where a person gets right of way pursuant to
Arts. 1221 - 1224, he has the right to carry out works necessary for the effective
utilization of such right (1224).

Art 1225 tells us that ownership is not absolute. The illusive concept of nuisance is
recognized here. The second Sub-article comes up with cases where nuisance may occur;
smoke, soot, unpleasant smells, noise or vibrations in excess of good neighborly
behaviour are considered to be nuisance. The last Sub-article brings other tests to the
attention of the court addressing the issue of nuisance. Supposing that the owner has
caused nuisance or damage to his neighbor, he may be required to repair the damage
(1226). Art 1227 stipulates that the restrictions on ownership are non-waivable and
further provides that there is no need to enter the restriction in the register of immovable
property.

3.7 Ownership and Use of Water
Originally man derives his necessities from nature. Water is one of the most important
natural recourses to be used in many of our needs as it exists in its natural state.

Despite its global abundance covering 2/3 of the surface of the earth, water that is useful
for man is not that abundant. But at the national level, Ethiopia is blessed with good
supply of water, though we don't use it, and she is called "the water tower of Africa".
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Except the Awash River our major rivers are international rivers.
*
Abay, Tekeze, Atbara,
Wabishebelle, Baro, Akobo, Sobat, Omo are the few. We also have many lakes such as
Lake Tana, Ashengie, Zewai, Langano, Shala, Awassa & Abiyata. Underground water is
also available almost everywhere in the country. Because of this general abundance of
water we had rules evolved as if water has no cost and there were no limit to its
availability. The Civil Code, for instance, was meant to govern riparian rights. But as
demands come close to and in some regions even exceeds the supply of water it becomes
necessary to seek ways to increase efficiency in the use of water.

Water may be used for domestic use, municipal uses (e.g. fire fighting and watering of
parks), institutional use. (E.g. hotels and restaurants), stock watering, irrigation,
navigation, mining, recreation, manufacturing hydroelectric power supply and other uses.
With such diverse needs for water, population increase and technological development
the scarcity more acute.

Moreover, more uses of water listed above require the physical occurrence be changed.
The water dam needs to be built up so that its pressure enables to turn the turbine to
generate electricity; a farmer directs the course of water to irrigate his land; a
manufacturer withdraws it to use it as a raw material or to wash and treat other materials;
a city pumps large quantities through its pipes for uses in homes and commercial
establishments, etc. Once again, with greater demand of water for such uses, the water is
not enough anywhere on the globe to permit every user to do with it as he pleases. Hence
scarcity is at the heart of water law. Water law has evolved as any other law to regulate
the activities of man in relation to water to avoid chaos by limiting claims to it.

Certainly all of the water uses listed above are desired by and have utility for the users.
Because of the physical limit of supply (scarcity) one use may be outweighed by the other
and not all the uses are given the property status of 'Water Right'.

*
Despite our rivers are international, we are here dealing with domestic law and we are
discussing about the national use of water.
65

In the beginning of regulation of such distribution and exercise of rights, states have
developed two major approaches depending on their geographical and economic
conditions. That is the riparian doctrine has been developed in the green country sides of
England and Eastern America which have many rivers. Owners of land have a natural
right to use the water closing or bordering their land. This doctrine seems to be based on
the unspoken premise that if the right to the use of water is restricted to those persons
who have access to ownership of land and if those persons will restrict their demand on
the water to reasonable use and only on the riparian lands, there will be enough water for
all. On the other hand, appropriation law developed in arid regions (states) is usually
thought of as a system for water short areas where there is no enough for everyone, the
rule of priority ensures that those who obtain rights will not have their rights taken by
others who start later. The underlying maxim is first come creates first legal right for the
amount of water fixed in the permit or used before.

3.7.1. The Riparian Doctrine.
Traditional Riparianism is often identified as a doctrine utilized in areas where water is
abundant. The principal feature is that rights in water is only incidental to ownership of
land which adjoins or underlies a stream; i.e. a land which is riparian. Even though the
details may vary greatly in different legal systems, the common characteristics of the
traditional riparian system are the following.

1. The right to use water in a stream is created only by ownership of land , which is
riparian to the stream. The water right is only an incident of land ownership and it cannot
be lost by mere disuse. Also, use may be initiated anytime. The right is so restrictive
that a non-riparian who uses water is liable to any damage suffered by any riparian and
conversely a riparian who initiates a use which interferes with a prior non-riparian use is
subject to no liability. This can be read from the provisions of Art. 1231 that the
court settles disputes over use of water by having regard to ownership and any
infringement of right of ownership gives rise to compensation.
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2. A riparian owner may use the water only on the riparian tract of land and may not use
it himself or pass it to another for use off the land; i.e. the use has to be within the
watershed of the stream. If the person has a very large plot of land, the determination of a
land within the watershed of the stream is a practical difficulty.

3. When there is conflict of interest between the riparian owners on a given stream, one
of the two principal allocation theories is applicable natural flow or reasonable use. One
of which that is found in the Civil Code seems to be the natural flow theory (Art. 1242).
Natural flow, an absolutist concept holds that (of course, with the usual exception of
minor domestic use) no riparian may impair or diminish the flow of the stream to the
detriment of any other riparian, as all are entitled to have the stream flow past their land
unsoiled and fit as it was in the state of nature. This is based on the maxim that "water
runs and it ought to run, as it has been accustomed to run". Reasonable use, the more
common theory, is also complicated, holds that each riparian is entitled to make a
reasonable use of water taking into account the needs and uses of other riparians. Though
the content of reasonable use differs from place to place and from time to time, few
features may be mentioned about its operation. When there are competing interests such
as demands for irrigation in excess of stream capacity, the court may order apportionment
between the users as can be abstracted from the provisions of Art. 1231(1). Where the
uses are utterly incompatible, the court might merely prefer one to the other. For
instance, where an upstream irrigation use interferes with downstream domestic use, the
domestic use is preferred (Art. 1236). Also in determining reasonableness the law gives
an advantage to vested rights than to newly established or proposed uses (Art. 1237).
This reasonable use is, however, uncertain that some jurisdictions adopt appropriation
system.

3.7.2. Prior Appropriation Doctrine.
An appropriation may be described as a state administrative grant that allows the use of a
specific quantity of water for a specific beneficial purpose if water is available in the
source free from the claims of others with earlier appropriation. Appropriation law,
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developed in arid areas, is usually thought to be a system for which water short areas
where there is no enough for everyone the rule of priority ensures that those who obtain
rights will not have their water taken by others who come and start later. The theory is
that as demands arise water right to supply them will be given out until the water is
exhausted based on the maxim that first come creates first legal right. Hence the major
characteristics are the following.

1. Land ownership is not relevant to acquisitions of water rights. A right may be
obtained by taking water and applying it to a beneficial use, and it may be lost by ceasing
to make such use.

2. In prior appropriation, there are no limitations on the place of use. Not only may
water be used off riparian lands, but also it need not even be used in the watershed of
origin.

3. As between competing appropriators from the same source, priority in time is
determinative. And priority is fixed at the time when an application is filed for permit
under the administrative system or by first substantial act that leads to the diversion and
use when there is no such administrative system. Thus, in time of shortage, the
appropriators most junior in time must cease using water if necessary in order to satisfy
senior appropriators. If the situation were such that the stream contained only
enough water to satisfy the most senior appropriator, all junior appropriators would be
required to terminate their uses completely, however severe the consequences may be.

Normally, systems adopt either of the two doctrines (riparian or appropriation). But there
are systems, which adopt both doctrines in their different regions as a third approach. We
do not dwell on that. Whichever doctrine is adopted, both theories deal with surface
water only. For instance the term "riparian right" in the previous discussion refers to the
right to divert or use water. It does not even encompass bank rights, or the right to access
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to bodies of water (such as lake or groundwater) or right of ownership in the bed of a
stream. Nor does it refer to fishing or the right to protect a stream bank from erosion.

But if one has a better riparian right or is an appropriator, his right over the water is a
"Usufructuary right " the right to use the water and not an interest on the corpus of the
water supply. Ownership of water resources almost always (i.e. in every legal system) as
a natural resource is vested in the state. This is also true of our country that ownership of
natural resources including water is vested in the state (the government). Arts 13(2) and
40(3) of PDRE and FDRE constitutions respectively.

3.7.3. Permit System (Administrative Apportionment Doctrine)
The riparian theory had been adopted, as we tried to touch upon, in the Civil Code. This
approach has an inherent defect to be applied in Ethiopian legal system since the
promulgation of Proc. 31/75 as water right is incidental to land ownership. Art. 3(1) of
this proclamation provides that "... all rural land shall be the collective property of
Ethiopian people". This has been maintained under Art. 13(2) and 40(3) of the PDRE
and FDRE constitutions, respectively. The latter provides for in a comprehensive manner
that "[t] he right of ownership of rural and urban land as well as of all natural resources, is
exclusively vested in the state and in the peoples of Ethiopia". Land is a common
property of the Nations, Nationalities and Peoples of Ethiopia". Art. 32 of Proc. 31/75
impliedly repeal those provisions dealing with riparian doctrine. Hence riparian doctrine
is not in operation in our legal system.

One might wonder whether prior appropriation is the other alternative that we have at our
disposal. It has been stated before that in the prior appropriation what is determinative is
the first substantial act either by filing an application or by actual use of water where
there is no such requirement of application. Once priority is determined demands are
satisfied in a descending order of priority. Hence the most senior gets the amount either
fixed in the permit or determined by his prior use before anybody gets any supply. Even
69
so ownership of water resources under this doctrine remains with the government and the
appropriator has only the right of use of the water.

All these things make this doctrine more or less similar with the permit system we have in
Ethiopia a third prominent approach devised by the "Water Resource Management
Proclamation of Ethiopia," No. 197/2000.

This approach maintains public ownership of water resources (Art.5), demands permit for
water management activities with certain exceptions (Arts. 11 & 12 respectively), Once
water is treated as part of the public domain, the allocation of individual rights of use is
vested in the state to be discharged through administrative agencies. Any decision in
respect of the issuance of permit or settlement of dispute, save for domestic uses (Art
7(.)), is to be made with a view to ensure water resources of the country are protected and
deployed for the highest social and economic benefits of the people of Ethiopia. Unlike
the appropriation approach, again, water resource includes both surface and ground
waters those surface waters being rivers and lakes and, ground water is which is found
underneath the surface.

In many jurisdictions many types of waters are not covered by the doctrine. Such as
spring waters, waste waters, developed waters, foreign waters and salvaged waters.
(Foreign water being water that has been imported by a user from one watershed into
another. This water is not part of the natural flow of the drainage area of discharge,
salvaged and developed waters are the products of man's efforts in increasing or in
salvaging supply. They are waters that would not but for man's improvements, have
become parts of the stream, or waters that would otherwise have been lost by seepage or
evaporation). In those other jurisdictions those waters are of those parties who enhance
the supply in the basin, develop or save them. All these activities, again with few
exceptions, need permit as they are still publicly and not individually owned.

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The water management activities include the development, utilization, conservation,
protection and control of water resources. These activities are to be undertaken in
accordance with the permit system. Hence the Ministry of Water Resources is
empowered to examine plans and proposals and issue permit for, among other things, the
development and utilization of water resources on the basis of preferences of uses and
users that are of highest social and economic benefit. In issuing the permit, it also
determines the allocation or amount of water to be used and the manner of use of water
resources between various uses and users.

As it has been tried to touch upon before, all uses have value and utility to the users. But
all of them are not granted protection for scarcity reason and preference has been made
among uses and users. The riparian limits to riparian owners and prior appropriation to
one who first captures. This is in terms of users. In respect of uses, authorities classify
those uses for instance under the riparian approach into natural or ordinary and artificial
or extraordinary. Natural uses of water are always preferred and they arise out of the
necessities on the riparian land household use and watering of domestic animals. For
these purposes the riparian may take the entire stream flow if he needs it all. Artificial or
extraordinary uses are all those that do not minister directly to the necessities of life on
the land-uses primarily for business purposes, improvement, or profit, such as irrigation,
mining, proportion of mill machinery, generation of hydro-electric power and watering of
large herds of stock. For these essentially business uses the riparian never can take all the
water to the exclusion of other riparian owner; he can take only what is reasonable with
due regard to the uses of others on the same stream.

In the case of prior-appropriation appropriators are required to use the water for beneficial
uses i.e. those who employ the water for reasonable beneficial use are preferred. The
concept of reasonable beneficial use may be examined in connection with other concepts
of water use such as "highest use", "maximum use" or "optimum use", which make the
doctrine more close to the permit system. Obviously these terms can be defined only in a
specific context of geography, climate, population requirements and available supply.
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Adopting the riparian doctrine, the civil code roughly made preferences in a descending
order: domestic use, irrigation and industrial use. And in case of competing interests or
uses, it seems to adopt the concept of vested right.

The new proclamation adopting the permit system makes only one statutory preference
that is domestic use over and above any other water use. It does not make preference
among users (Art. 7(1)). It leaves to the Ministry the determination of granting or
denying of license, amount and manner of use of water and making preferences on uses
and users of water resources other than domestic use and users, (Art 7(2)(c)). Such
decisions are to be made by the concerned authority with a view to ensuring that the water
resources of the country are protected and deployed for the highest social and economic
benefits of the people. This principle is also the underlying governing rule for the
supervisory body (the Ministry or any organ delegated by the ministry pursuant to Art
8(3) of the proclamation) in settling disputes that many arise as between permit holders or
a permit holder and a third party concerning rights and obligations arising from the
permits. The procedure of settling such disputes is to be laid down in a regulation to be
issued by the Council of Ministers pursuant to the proclamation. [Art 9(1) cum. Art. 30.]

The decision of the supervisory body is appealable to ordinary courts and the content is
basically among other things determination of amount and manner of use of water making
preferences between uses and users.

As it has been tried to high light, this permit system, unlike the other major doctrines does
not deal only with utilization of water resources. It also deals with the development,
protection and control of water resources. Hence the areas in respect of which permit is
required are:
a) construction of water works either by way of directing streams, digging wells or
laying pipes or
b) supply of water whether for one's own use or for others or
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c) transfer water which one has abstracted from a water source or water received from
another supplier (Art 11).
d) discharge waste into a water source, (Art. 20(1)(c)). This is not in the list but we can
see it this way.

"Protection" is one of the powers vested in the Ministry over water resources. Hence in
order to maintain water quality the ministry sets quality standard. This standard is
however relative depending on the use of water. Yet it is certain that emission of
wastewater, though it may be useful for some uses, makes the water unfit for some
specific uses. Hence the discharge of waste, as it pollutes the water, to a water source
need to be controlled. Under the Article dealing with service fees in relation to permits to
water work construction and use of water it has been listed that permit to release
discharge waste into a water source is chargeable. Thus the implication is that permit is
required to release or discharge of a water source.

However permit is not required to:
a) dig water wells by hand or use water from hand-dug wells and
b) use water resources for domestic purposes, traditional irrigation, artificial mining
and for traditional animal raising as well as for water mills though the scope of these uses
is not practically clear. [Art 12(1)(a) and (b)]

For the proper use and prevention of wastage of water regarding such uses the
supervisory body is empowered to issue directives (Art 12(2).

Review Questions

1. The Ethiopian Privatization Agency has sold to Ato Tesfa Beruhe the
Ethiopian Fruit Corporation, one of the public enterprises, at a price of
50,000,000.00 (Birr). The contract has mentioned nothing about the various
containers the corporation has placed in different corners of Addis Ababa and
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been using to retail oranges, bananas, etc. The purchaser believes the
agreement has covered these containers. On the other hand, the agency
contends that the containers are excluded. Argue for and against the Agency.
2. W/ro Banchi has sold her car to Ato Mulu. Before the date of the delivery of
the vehicle, she removed the players (tape) attached to the car and sold it
separately. She has also sold one extra tire and a jack. On the date fixed for
the delivery of the car, the buyer has discovered the removal of the tape and
the sale of the two items. Could he proceed against the third party who
bought these items, Ato C? Proceed with the assumption that the sale contract
between Ato Mulu and W/ro Banchi was silent about the fate of the tape, jack
and the extra-tire.
3. Given: under Ethiopian law any dealing relating to immovable shall, under
the pain of nullification, be made in writing and get registered. Ato Delebe
has sold 1,000 trees and 15 truck quarries extracted from his plot of land to
Ato Magnete. The seller and the buyer do not know whether the contract has
to be made in writing and be registered or not. Give them your legal advice.
4. Under Ethiopian law of property immovables by the object to which they are
applied is recognized, though not explicitly. Show the validity or invalidity
of this assertion.
5. For the purposes of bringing possessory action and using self-help, the
Ethiopian holder is given the status of a possessor. What would be the
possible reasons justifying this broader conception of possession?
6. Ato Magnet has commenced fencing a tract of land, which he alleges, is
owned by him. Ato Sereat has observed the action of Ato Magnet and
prevented him from completing the fence on the ground that Ato Magnet is
fencing some portion of land belonging to the state. Would this ground be a
valid defense if Ato Sereat raised it in the statement of defense he filed in
response to the possessory action brought by Ato Magnet?
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7. Suppose under question No. 4 Ato Magnet has successfully (without any
obstruction) fenced a portion of land and the enclosure has included several
m
2
of land which does not belong to him, but to the state. The Kebele works
and urban planning committee realizing this, has sent him a letter entitled
last warning which states: unless you demolish the fence which you have
recently erected and which enclosed several m
2
land owned by the state
within seven days, the committee will be forced to demolish the fence and the
materials will be taken to Kebele". Could Ato Magnet bring a possessory
action against the Kebele?
8. Suppose without any warning the Kebele pulled down the fences and took the
materials to Kebele. Would you advise him to bring possessory action?
9. In questions No. 7 and 8, what would be the defense of the Kebele in the
possessory action filed by Ato Magnet?
10. Ato P has brought a possossory action against Ato O alleging that the latter
has prevented him from entering and occupying a plot of land used and
enjoyed by his (Ps) late mother. The court dismissed Ato Ps possessory
action. What ground would be given justifying this dismissal?
11. Ato R has been recently expelled from Idir in his community. The Idir
association, which is called Alem Bekagn, has justified its action on the
ground that Ato R has adopted an alien religion. The effect of this
cancellation from membership has impact on the question of whether R and
his family get burial place or not. Ato Rs grandmother who as been bed-
ridden for the last 10 years is now on the verge of her death. Could Ato R
bring possessory action against Alem Bekagn Idir association?
12. Ato P, 6 year ago, identified a vacant space in one of the outskirts of Addis
and built a house without securing any permit from the relevant authorities
this year the authorities realized that Ato P built a house and fenced several
m
2
land illegally. They warned him to demolish the house and vacate soon
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within 15 days and failing this they themselves would undertake the same.
Not knowing what possible course of action he should take, Ato P has sought
to you for opinion.
13. There is a plot of land. X has been cutting the grass for the past 19 years.
While Y has been cutting threes, pruning them, and collecting firewood.
Recently X has prevented Y from doing these activities. And X has brought
possessory action against Y. As a judge, how would you resolve the dispute?
14. X rented a house from Rental Housing Agency. She used the house as a bar.
She went to USA. On her departure, she authorized W/ro Y to conduct the
business and pay rent in her name. The Agency discovering that it is W/ro Y
not X who is living in the house closed the business and evicted W/ro Y.
W/ro Y brought possessory action against the Agency. What should be the
outcome of the decision?
15. Ato Q has secured 1500m
2
land from the concerned authority. He has started
building house on part of it without enclosing his portion of the land. Y who
is the neighbor of Q has enclosed about 250m
2
of land belonging to Ato Q.
Ato X has not carried on any works on the portion of the land Y has usurped.
Y has also started construction and planting trees on the land in dispute. How
can Ato Q prove the 250m
2
land belongs to him in a possessory action he has
filed? Would title be relevant?
16. Ato A permitted his friend Ato B to occupy his building until such time as the
former returns from national call. When Ato A came from the front, Ato B
refused to vacate the house. Then Ato A forcefully evicted him and Ato B
brought possessory action claiming a relief of restoration. Do you think Ato
B would succeed?
17. Ato A has a very large edifice wherein there is a large swimming pool. He
permitted Dr. B to use the pool for his lifetime since he (Ato A) is not in a
position to swim. Since Dr. B is an agricultural scientist, he wants to use the
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pool to conduct experiment on different species of fish and alga. Ato A has
agreed to this. Yet recently Ato A has started releasing toxic substance into
the pool. If Dr. B were to bring possessory action, what would be the subject
matter of his action?
18. Under Ethiopian law of possession, title is absolutely irrelevant in a
possessory action. Do you agree? Explain.
19. Under Ethiopian law of possession, only one and one person may have
possession of a single object at the same time. Comment.
20. Does the Ethiopian law of possession adopt the animus? If so, what meaning
should be ascribed to this element?
21. What is the relation, if any, between the vice of ambiguity and the element of
animus?
22. Ato Demere allowed his uncle, Ato Belete, to live in it for three years.
During this period Ato Demere went to Kenya for business purposes. On his
return, he discovered that Ato C who is Ato Demeres neighbor and who
knows that the house belongs to him Ato (Demere) bought it from Ato Belete
and converted it into a business. Ato Demere raged by this acts of his
neighbor and his uncle forcefully evicted his neighbor and closed the
business. What action is available to Ato Beletu, if any? What defenses may
Ato Demere raise?
23. Ato S leased his four-room dwelling house to Ato Q on Jan. 1, 1997. On Jan.
1 1998 the lessee (Q) refused to pay rents alleging that he was the owner of
the house. He announced his refusal to the lessor in writing. He also publicly
said on several occasions that the house belonged to him. On Jan. 3, 1999
Ato P went to the situs of the house and attempted to retake, yet in vain for
Ato Q successfully repulsed the lessor back. Then Ato P brought a
possessory action against Ato Q. What would be the defense of the less
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24. Ato X is the son of Ato B who has a dwelling house. Ato B has currently
gone to USA. The son who occupied the house rented three service rooms
with the consent of the father to Ato R. After a year Ato X pretended to be
the owner sold the service rooms that were rented to the lessee. The lessee
thereafter (after the sale) stopped paying rents. In the following two years; B
returned from USA only to know that three of the service rooms were sold to
Ato R. And the owner (Ato B) attempted to dispossess Ato R. What is the
regal remedy available to Ato B? Suppose Ato B even after he purchased the
service rooms continued to pay rents would that make any difference in your
answer?
25. Ato X owns a car. He has borrowed a jack from Ato Y for 1 year. He has
then dedicated the jack to the service of the car. After several months of the
dedication, he sold the car to Ato Z. Could Ato Y reclaim the jack from Ato
Z?
26. Ato X had a plot of land. He borrowed two oxen from Ato Y for the purpose
of tilling the plot. The contract of loan was made in writing on Oct. 23
rd

1997. Ato X dedicated the oxen to the service of the plot in question on Nov.
23
rd
1997. Ato X sold the plot on Jan. 1
st
1999 to Ato Z and this contract did
not mention about the oxen. The purchaser claims the delivery of the oxen.
On the other hand, Ato Y wishes to reclaim the oxen. Assume that Ato Z did
believe that the oxen belonged to Ato X. Dispose the dispute.
27. The former owner of a lost or stolen movable that has been sold by authority
of law may recover it within the time prescribed from the purchaser if the
latter was in bad faith at the time of entering into possession of it. Discuss.
28. The possessor of land in the present Ethiopian situation becomes the owner of
plants, constructions or works which he undertakes on the land with the
materials of another person even if he used the materials in bad faith
comment.
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29. An owner is precluded by law from playing his tape recorder which can
distract his neighbor from quiet reading or irritate another sick neighbor. Is
this assertion valid? And why valid or invalid?
30. Show the relation between Art. 1150 and Art. 1168 of the Ethiopian Civil
Code.
31. List and critically explain the main elements of Art. 40(2) of the FDRE
constitution.
32. Ato T found a wristwatch, posted a notice to that effect in his locality. And
after a month of his finding he surrendered the watch to his Kebele. One of
the workers from the Kebele sold the watch to an unknown person and
disappeared from the area. Ato P the owner of the watch wishes to bring
action against Ato T. Does he has a legal ground to do so?
33. What if Ato T instead of surrendering the watch to kebele, kept it with him
for 11 years. Could the owner have a successful reclamation suit?
34. It has become six months since Ato Ys dog got lost. He looked for the dog
but could not trace it. On the seventh month, Ato Y came to know that the
dog is with Ato Z and when Ato Y requested Ato Z to return the dog the latter
refused. So there is a dispute between the two parties. Settle the controversy.
35. Suppose the animal gets lost were domesticated tiger (leopard)? What if it
were a donkey?
36. Before Ato C went abroad, he put his belongings under the custody of Ato D.
Ato D gave a gold ring (one of the items entrusted to him) to his girlfriend,
w/rt T. Now C has returned from abroad and came to know the fact that Ato
D gave his (Cs) gold ring to his friend. Ato C brought a reclamation suit
against T. T argued that she acquired it in good faith (believing that the ring
belonged to Ato D) so she should not restore it. Settle the controversy.
37. Would your decision vary if the ring were sold to W/rt T? Why?
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38. Would your decision vary if the ring were given to W/rt T on the basis of
loan?
39. In relation to movables, the maxim: a person cannot transfer more than he
has is completely superseded.
40. Point out and discuss the conflicting interests the Ethiopian law of possession
in good faith claims to balance.
41. A orders a new stove from Mosvold's which is delivered in his absence.
Before A returns home, his neighbor B removes the stove from As kitchen.
A brings an action against B under Art. 1149 of the Civil Code. What should
be the result? Would the result differ either if the stove had been a gift from
X of which A had no prior knowledge? If B, when asked directions to As
house by the driver of the delivery vehicle, had said his house was As house
and the stove had been delivered directly to it? If the stove had been delivered
directly to Bs house on As instructions and then B had refused to hand it
over.
42. Xs automobile is stolen by A, who drives it around Addis for a week before
B steals it from A. A brings an action against B as per 1149. How should the
case be decided? If the case were decided in favor of A and the automobile
were consequently returned to him, would X then have an Art. 1149, action
against A?
43. A employs B as a driver for his Opel. B is a cousin of C, who is a creditor of
A. C persuades B to deliver the automobile to C to hold until a pays C what
he owes him. Has A possessory action against C?
44. A recently sold to B a large farm near Nazareth, which had been leased to X.
B has never visited the farm but he has communicated to X though A that X
can continue to lease the farm from B on the same terms he enjoyed from A.
B now learns that part of the farm is being cultivated by Y. Has B a
possessory action against Y? Suppose Y had received permission from X to
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undertake the cultivation? Does it matter how long Y has been cultivating
that part of the farm?
45. A owns a small farm outside A, which he cultivates with the occasional aid
of his brother B. The ploughing is done with a pair of oxen owned by B and
kept on the farm. Recently A, without any objection by B, sold this farm to
C. The contract of sale made no refers to the oxen, Which were left on the
farm by A when C took possession. B now clams the oxen from C. Is his
claim justified?
46. Ato G has planted trees along his plot of land adjoining Ato Is plot of land.
The branches and the roots of the trees are extended to Ato Is plot. The
latter request Ato G repeatedly to cut off the roots and the branches. His
neighbor however has refused. Then Ato I cut the roots and the branches on
his own initiative. As a result controversy has arisen between the two
neighbors. Dispose the dispute.
47. Ato J snatched gold ring from a passer by at Arat Kilo and a policeman was
chasing him. Ato J found an open gate and entered the same wherein he
trampled down seedlings and flowers. The owner of the compound sought to
bring an action against Ato J alleging that he (J) made a trespass and caused
damage. Give your legal advice to the owner of the premise.
48. Would your answer under Q No. 47 change (vary) if Ato J made forcible
entry as a result of a gunshot which missed him?
49. Ato M and Ato N bought a plot of land each; the plots are adjoining. When
they took. possession of the plots, the two agreed to the effect that they
would live peacefully and that they would never demand any benefit from
each other plot. This was made in writing. Yet later on Ato N realized that
he would not use his newly bought plot of land efficiently unless he gets the
right to travels on Ato Ms land. Thus he wants to set aside the agreement.
On what ground(s) could he render the agreement ineffective?
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50. Ato P is an asthmatic person. The malady could easily be aggravated by could
bad sniff Ato R lives next door. He is a chains maker. The smoke frequently,
as alleged by Ato P, triggers the Asthma. Ato P wishes to file a lawsuit
claiming the following reliefs:- Ato Q be restrained from smoking cigarette in
his house in the future and be ordered to pay the prices of medicine bought to
secure relief. Give him your opinion.
51. Would your advice vary if the sniff coming from next door arose from a toilet
not cleaned and drained for several years?
52. Ato Q discovered that his book entitled: Pride and Prejudice" was solon by
an unidentified person. After two years, he saw the book in the shelf of his
friend, Ato R. When Ato Q asked his friend how he got the book, he replied
that he bought it from second-hand bookseller at Arat Kilo. Ato R was not
willing to restore the book. This refusal gave rise to dispute and you are
approached to solve the problem.
53. What if Ato Q came to know the whereabouts of his book after 8 years?
Would it make any difference?
54. Suppose the court to which the dispute between Ato Q and Ato R was
referred decided that Ato R restore the book. Would Ato R have the right to
get the price of the book from Ato Q?
55. Now and then Ato M suffers from mental illness. Last month he was in
hospital in connection with this malady. While he was in hospital, his lessee
(Ato T) asked his permission to build a dwelling house on Ato Ms land.
Then Ato T built a dwelling house having 8 rooms. After his recovery, Ato
M went to his house and was taken by surprise when he saw the newly built
dwelling house on his land. He asked the tenant to clarify the matter. The
tenant said that he built according to the permission given to him by himself
(Ato M) Ato M sought legal advice.
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56. Ato S is a renowned painter. He stole a hide hanged on the wall of his
neighbor, Ato T. Then he made a picture worth 8,000.00 (Birr). The
neighbor came to know the theft after Ato S completed his artistic piece. Ato
T claimed the restoration of the hide. How should the dispute be resolved?
57. Ato K sold a table to W/ro L. She left the table under the custody of Ato K
since the purchase(L) did not have space, which would accommodate the
table. After two months of the date of the sale, Ato K tempted by a higher
price offered sold the table to Ato M. The later purchaser also took delivery
of the table. W/ro L discovered that Ato K resold the table and wanted to
reclaim if from the subsequent purchaser. Give her your well considered
legal opinion.
58. Assume under question No.57 Ato K gave the table to Ato M as a gift.
Would your legal advice vary then?
59. Assume under question No. 57 the thing sold was a car, in stead of a table.
Does it make any difference? Why?
60. Ato U has been using a watch for the last 3 years. The watch is now under
his possession. Ato V has claimed that the watch belongs to him; that is
he(V) is the owner. Ato V contends that he can produce a receipt indicating
he is the owner. He also says that he can produce witnesses. But the lower
court has rejected the arguments of Ato V. He(V) then files memorandum of
appeal. Would he succeed?
61. Ato X has bought a dwelling house from Y who is 16 years of age.
Following the purchase Ato X has secured title deed from the municipality in
his own name. Now dispute arises between Ato X and Y. How would you
settle the controversy?
62. Mr. Copettelti was naturalized. He acquired a dwelling house ten years ago.
Last month he died. His dwelling house is taken over by his servant (Ato
Defaru) whereas all the utensils were taken by his mistress. Mr. Copettelti
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did not leave any will nor did he have relatives. The kebele Administrative
office at the sites of the deceaseds dwelling house came to know those facts
and wanted to be advised as to how it should proceed-Render your well
considered advice.
63. W/ro K, wishing to purchase a certain dwelling house form Ato O, went to
the office of the register of immovables. The officer, however, refused to
show the register. The officer simply confided to W/ro K that there is no
encumbrance such as mortgage, usufruct, etc on the said house. He also told
W/ro K that the immovable belongs, to Ato O. Relying on this, the woman
bought the house. After 6 months of the date of the purchase, Ato L showed
up alleging that he is a mortgagee and the mortgage is due. At the time when
the house was sold the contract of mortgage was registered against the entry
showing title of Ato O. Ato L insisted that he would see to it that the house is
sold to cover its proceeds the outstanding debt. Does he have any legal
ground? What remade does W/ro K have?
64. Roughly, there are two systems of registration of immovables: that is,
registration of instruments adopted by France and registration of title
recognized by Germany, which one does the Ethiopian law regarding
registration of immovables adopt?
65. What are the implications of Arts. 3363-3367 on the rules relating to
registration of immovable property?
66. Ato X has rented a house. The currency of the lease is three years. He
wishes to register the lease contract. Should he have the contract registered?
Why?
67. Ato Kusa knew the fact that Ato Kello's dwelling house was mortgaged and
also was aware of the fact this mortgage contract was not registered. Ato
Kumsa then lent money to Ato Kello and become a mortgagee; the mortgage
contract (that is, the second mortgage contract) was duly registered. The two
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mortgage contracts became due and the two mortgagees raised the question of
priority. Dispose the dispute.
68. Distinguish between petitory action and possessory action. Why does the
law of property duplicate remedies-petitory and possessory action?
69. Do you thing, under Ethiopian, it is possible to bring possessory action in
relation to movables?
70. Explain and demonstrate the full implications of the following maxims as
incorporated in the Ethiopian law of property.
a) Seek your faith from where you put.
b) Use your own property in such a manner as not to injure that of another.
c) A person cannot transfer more that what he has.
71. In assessing what amounts to in excess of good neighborly behaviour, a court
of law under Art. 1225 has to apply an absolute standard (that is, a uniform
criterion to be observed under all circumstances). Evaluate the validity or
otherwise of this proposition.
72. Suppose Art. 1217(2) is missing. Would a person making a trespass under a
state of necessity be held to make the damage he caused good? Relate Art.
2053 and Art. 1217(1).
73. Do you thing that Art. 1225 would be applicable to the case where a
neighboring lesee or usufructuary is disturbed by another lesee or
usufructuary, or owner?
74. Point out and explain the possible clashing interests attempted to be balanced
by Arts. 1207-1227 of the Ethiopian Civil Code.
75. Art. 1217(1) of the Ethiopian may be extended to the protection of
proprietary interest of a person or another person. This extension of the
scope of Sub-Art. 1 of Art. 1217 is made particularly plausible since the
owner whose land is trespassed has the right to claim compensation. This
Sub-article could also be extended to the situation where a certain danger
85
exists only in the imagination (or contemplation) of the person who made a
trespass. Do you agree with understanding of the Sub-article under
consideration?
76. The word widest under Art. 1204 of the Ethiopian Civil Code appears to
contrast ownership with other types of real rights. Identify the other real
rights and explain critically as to how ownership rights differ from those
other real rights.
77. W/ro Banchi placed a large empty vessel near the gutter of her house since it
was raining and since there was scarcity of tape water. She intended to use
the rainwater for washing clothes and dishes. Ato X, her neighbor, saw the
vessel filled within rain water and knowing that the water would fetch some
money for drink sold the water to W/ro Y at Birr 2.00. Would W/ro Banchi
have the right to recover the water? You may make any reasonable
assumption.
78. Compare Art. 1133(1) and 2268 of the Ethiopian Civil Code.
79. All corporeal chattels could be acquired through possession in good faith and
occupation under Ethiopian law. Comment.
80. What is the distinction between Art. 1132(2) and Art. 1136? What is their
similarity?
81. Distinguish between Art. 1134(2) and Art.1138(1).
82. Ato Chamboro has a car. The jack belongs to Ato Gubo. It has been stolen
from the latter. Could Ato Gubo claim the Jack?
83. Ato Ewunetu has currently constructed a dwelling house. He used 1,000
bricks, which were stolen from Ato Segebgeb. Could the latter claim the
bricks from Ato Ewunetu?
84. Ato Kuru used windows and doors stolen from Ato Gebar as windows and
doors of his newly built building. Could Ato Gebar reclaim the windows and
the doors?
86
85. Do you think windows, doors and keys of a house are intrinsic elements of
house?
86. Extra-tires and screws of a given car are its intrinsic elements. Is this
statement tenable?
87. Under Ethiopian property law one of the essential elements in creating the
relation of accessory and principal between two or more things is the unity of
ownership or possession in a single person. Is this assertion sound?
88. Is there any discrepancy between the Amharic and English version of Art.
1126? Explain, if there is any discrepancy?
89. Is there difference between the two versions of Art. 1136? Point out and
explain such difference, if any.
90. There seems to be inconsistency between the two versions of Art. 1131.
Point out such inconsistency.
91. Oxen, and tractor coupled with plough could be considered as accessories to a
given farm land as per Art. 1135 & 1136. Is this statement sustainable?
92. Ato Bushera had a farmland. Ato Tegat has a tractor. The former had been
using the tractor. Later on, the farm was sold by Ato Bushera to Ato Asesse.
In the sale contract made between Ato Bushera and Ato Asesse nothing has
been mentioned about the tractor. Ato Asesse argued that the sale of the
farm implies the sale of the tractor and therefore he refused to surrender the
tractor. Ato Tegat, on the other hand wishes to take his tractor which he gave
to Ato Bushera as loan for use only. Can Ato Bushera claim the restitution of
the tractor? What if there was a Usufructuary relationship between Ato
Bushera and Ato Tegat with respect to the tractor?
93. Suppose under question 13 above, the contract of sale between Ato Bushera
and Ato Asesse was made on Jan. 1, 1998; but the tractor was sold on Dec.
20, 1999 by Ato Tegat to Ato Nebiyu. Who is the third party in this
hypothetical case? Could Ato Asesse claim the tractor arguing that it is an
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accessory to the farmland? What argument the purchaser of the tractor Ato
Nebiyu would advance against Ato Asesse?
94. Do you think plants or shrubby maintained in pots or vases are immovables?
95. Discus briefly the:
a. Riparian,
b. Prior appropriation, and
c. Permit system doctrines, separately.
96. Do these doctrines apply to international waters?
97. Which of these doctrine/s is /are applicable in Ethiopia? Explain.
98. Distinguish between the permit system and prior appropriation.
99. What is the extent of application of the provisions of the Civil Code and that of the
Water Resources Management Proclamation?
100. List the hierarchy of use of water in Ethiopia. Justify your hierarchy.
101. What is the distinction between conflict of uses and users? How do you resolve
such conflicts, respectively?
102. If the Sheraton wishes to dig wells for its own supply, what should it do and what
constitutes his rights?
103. What if it is to supply to other consumers?
104. What about the rights of a farmer who want to irrigate his small plot of land from
the great Nile River?
105. Are the rights of the Sheraton and the farmer different in any way? Why or why
not?
* * *

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Property Law II

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4. Joint Ownership.
4.1 Ordinary Joint Ownership (Arts. 1257-1277)
Art. 1257(1)
The subject matter of joint ownership is corporeal things. This Sub-article, seen
together with Arts. 1126 -1204(1) means corporeal goods (movables and immovable).
The subject matter of co-ownership also extends to incorporeal things that is, patent,
copyright, and industrial designs. Joint ownership also encompasses those real rights,
which are connected to immovables and movables. The former includes servitude,
mortgage, co-habitation, usufruct, right of recovery and right of pre-emption on
immovable while the latter includes pledge and usufruct on movables.

Art.1257 is a permissive principle. As per Art. 1204(2) ownership may not be
'divided' unless the law has permitted to that effect. The law made reference to by the
latter Sub-article may be the other section of the Civil Code itself or other
proclamation. Art. 1257(1) allows what has been prohibited by Art. 1204 (2). By
"division" of ownership means splitting up different prerogatives (powers presupposed
by the concept of ownership) and attributing to different persons.

The words 'several persons' show that the subjects of joint ownership may be two or
more persons. Thus, theoretically and legally, there is no upper limit for the number of
joint owners. Yet two practical factors impose limitation. One is the value of
individual share. The greater the number of joint owners the less significant each
fraction of share will be. This may serve as a discouraging factor for some potential
joint owners. The other reason may be difficulty in making decisions relating to
management of the thing jointly owned. So is the case of those affairs which require
unanimous consent the greater the number of co-owners the more difficulty could it be
to reach at decisions.

The Sub-article under consideration contains words such as 'owned' and 'joint'.
Impliedly those words convey these messages joint owners must have the same
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interest, that is, ownership interest. This criterion excludes the legal relationship
between a bare owner and a Usufructuary; this relation may not be governed by the
provisions relating to joint ownership since a bare owner and a Usufructuary do have
different interest-the former the uses and the fructus, the latter ownership. The
ownership interest held by joint owners must exist over the same thing (which may be
tangible; intangible or universality of things). Simultaneous existence of the interest is
another factor.

Art. 1258.
This article attempts to address the following questions. How should the rights and
duties of each joint owner be regulated? How should the thing jointly owned be
administered? What is the extent of the rights of each joint owner over his share or
over the subject matter of joint ownership? These questions would inevitably arise if
there is joint ownership.

Such questions should be answered by reference to the original agreement giving birth
to the joint ownership. If this creative instrument is absent, then joint owners may
resort to a subsequent agreement. The creative and subsequent agreements, however,
will apply without prejudice to the compulsory provisions of the law (the provisions of
the Civil Code or other laws). Sometimes it may happen that there is no original
agreement nor a subsequent covenant or it may happen that these two agreements have
been made but they are defective in the sense that they leave out some issues. Further
these agreements may be contrary to law. Under either or all of these circumstances,
the mandatory provisions of the law come to the picture. These mandatory provisions
of the law are Arts. 1259 and following. The corresponding Amharic version of Art.
1258 does not, unlike the English version, show the compulsory nature of the articles
referred to. If we understand by the words compulsory provisions of the law to mean
that which cannot be set aside by the will of parties, then the English version seems to
yield to the Amharic version.

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This article suggests that joint ownership could be created through juridical acts, that
is, by agreement of the prospective joint owners and by testament. If this is so, joint
ownership is voluntary. When Sub-Art..2 says that the mandatory provisions of the
law will operate when there is no agreement, be it original or subsequent, then it tends
to say that joint ownership may be established orally or through conduct. But would
this be applicable to the case where the subject matter of joint ownership is immovable
or interest in immovable? It looks doubtful. By virtue of Arts. 1723 and 1185 of the
Civil Code, it looks unconvincing to argue that joint ownership over immovable could
be made orally or through conduct. These Articles say any dealing relating to
immovable shall be made in writing and get registered.

Art. 1259
There may not be any provision in the creative instrument or subsequent agreement
addressing the issue of the amount of share held by each co-owner. In this case, parity
of share is presumed. The mere fact of one of the joint owners proving to the
satisfaction of the court that he/she is a joint owner would lead to the conclusion of
equality of share. This may be contradicted by, and only by, it seems, invoking a
clause in the agreement fixing their share. The agreement in relation to movables may
be made even orally. But in relation to immovable it must be a written clause. If we
stick to the word 'shall', we may say Art. 1259 is an irrebuttable presumption yet it can
be rebutted by producing the agreement of the joint owners fixing their respective
shares. This Article is a warning to joint owners since it may work to the greatest
prejudice of one of them and of course to the financial benefit of other joint owners.
So it looks to strongly advise joint owners to fix their shares.

Art. 1260
A share is an abstract fraction held by a joint owner. It is assumed to touch on each
and every atom of a thing jointly owned. As such, a joint owner cannot pin point his
finger and localize his share over the thing jointly owned.

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A joint owner has ownership right similar to individual ownership over his share. As
such he has almost all prerogatives of an owner. This article mentions of the right to
dispose and pledge one's share. He may do this without securing the consent of the
other joint owners, even against their strong objection. The creditors of a joint owner
have the right to have a joint owner-debtor's share attached and sold at auction to the
satisfaction of the debt. The article seems to be silent about the other possible powers
of a joint owner such as the right to give his share on usufruct or the right to create
mortgage. One may opt for ways out. In the case of mortgage, one may say the
corresponding text of the Amharic version contains the word ST ('Wastna') which
has dual meaning: pledge and mortgage. In the case of usufruct, one may say it is
implicit in the word "dispose". The word dispose in the legal literature means, among
others, to alienate. And alienation may be of part of an owner's prerogative or the
whole of it. So if a joint owner gives his right over his share on usufruct, then this
amounts to disposing part of his prerogatives. Secondly, one may say that even if
disposition means total alienation, then if alienation is allowed in its total sense
usufruct shall, for a stronger reason, be permitted.

Arts. 1261, 1388,and 1406(1)
This article is erroneously entitled ' legal right of preemption'. Instead, it ought to
have been entitled "Right of recovery of joint owners". This is warranted by the
reference made by Sub-article two of the same article. When a thing is jointly owned
by several individuals, compromise may be necessary. Tolerance may be important.
This would help in the smooth administration of the thing. Compromise may be
realized if the joint owners know and understand one another. Yet because of the
power of a joint owner to alienate (freely or for consideration) his share, a new and
perhaps an unwanted party may step in. This may be an obstacle for the smooth and
speedy administration. This article gives to the other joint owners the right to avoid
the new comer. The right to expel the unwanted joint owner is given to all other joint
owners concurrently, it is not given to individual joint owners. The extent of the right
of recovery is equivalent to the extent of the share of the joint owners: It is to be
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exercised on pro ra ta basis. However, if only one of them is willing to exercise his
right to recovery, he may exercise the whole share held by the new comer. Right of
recovery of joint owners is not a free right; they are expected to pay the price paid by
the new joint owner for purchasing the share.

Art.1262
A joint owner may opt for forfeiting his share. If he does so, the share so relinquished
will devolve upon the other joint owners. To what extent? If their original or
subsequent agreement is moot about this issue, then the parity of share article will
apply. That is the share so surrendered will be divided equally. Should his wish to
surrender be made orally or expressly? It must be unequivocal since it is a serious
decision. The motive for the forfeiture may be to avoid costs. This seems clear from
Sub-article two. The effect of surrender may be to avoid costs relating to the
administration of the thing jointly owned. As per Sub-article two, a joint owner by
surrendering his share can only avoid future expenses be it anticipated or otherwise.
He cannot avoid past debts, expenses already incurred in connection with the jointly
owned thing. So the effect of surrender looks only to the present and to the future.
This article may be one ground of terminating joint ownership.

Art. 1263
Arts. 1259-1262 deal with different issues relating to share. The remaining provisions
under section one deals with issues concerning the thing jointly owned. So a joint
owner has two interests: his interest over his share and over the thing. This article lays
down the right of a joint owner to enjoy the thing physically. This physical enjoyment
has two limitations. One is that in making use of the thing, a joint owner does not
have the power to convert the purpose for which it was destined. If the jointly owned
thing is a swimming pool, each joint owner may swim in it or may recreate but he may
not convert such thing into a fishing pond. The second limitation is the similar right of
the other joint owners. As a joint owner has the right to make use of the thing, so are
the other joint owners. So he shall not impair their use right.
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Art.1264
Increase means addition or fruits. By virtue of Arts. 1170, 1171 and 1333 of our Civil
Code, fruits may be: Natural fruits, Civil Fruits, industrial fruits and products. If the
things giving rise to either of these fruits is jointly owned, then these increments must
also be jointly owned. Each joint owner may seek for the division of such fruits at any
time. If his proposal is unacceptable to the other joint owners he may apply for court
intervention. Partition is one ground for terminating joint ownership and it means the
act of individualizing, physically, a share of a joint owner. Through partition an
abstract share is concretized. It looks doubtful whether the partition mechanism would
be sound in relation to all fruits. Suppose the fruit is a newly born calf or even
suppose the fruit is a bull. Would it be sound to opt for the partition of the calf or the
bull in this situation instead of opting for sale?

Art. 1265
What constitutes acts of management or administration? Two possible answers may
be advanced. The first attempt will borrow an Article from law of Agency, Art. 2204.
There is this assumption of consistent use of words by a legislature in a code. The
word "code" denotes that a certain message(s) is put logically, coherently and
consistently. And a group of scholars working together or a scholar, the assumption
goes, would be consistent in the use and selection of words. That is, the codifiers
would not use a single word to convey quite different messages. If this assumption is
correct, we should use the word administration in Art. 1265 to mean what it means
under Art. 2204 of the code. Thus acts of administration mean: acts done to preserve
or maintain the thing jointly owned, leasing the jointly owned thing for the maximum
of 3 years, the collection and discharge of debts in connection with the jointly owned
thing, investing the income from such thing, sale of crops, sale of good intended to be
sold, and sale of perishable goods. This first attempt assumes that there is no explicit
nor implicit definition for the term administration in the law of joint ownership. The
second alternative solution is a rejection of this assumption. The answer to the query
what is administration is implied in Art. 1266. This Article requires unanimous
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consent if a thing jointly owned is to be disposed of, mortgaged perhaps pledged,
given on usufruct and its purpose is to be changed. So one may say all other matters
may be decided by majority vote as put in Art. 1265. If the matters other than the
ones mentioned impliedly or expressly-by Art. 1266 are to be decided in accordance
with Art. 1265, then they amount to acts of management. The two approaches tend to
converge together.

The question of the meaning of acts of management as it may, pursuant to Art.
1265(1), each and every joint owner needs to be consulted. His opinion on matters of
acts of management should, as much as possible, be taken into consideration in
arriving at a decision. This involves awareness and being informed. All in all the
same Sub-article appears to suggest unanimous decision. If this is the case, it would
be consistent with the nature of share if acts of management were to be taken by
unanimous agreement since a share is supposed to bear upon every particles of the
jointly owned thing and since this characteristic of share implies that each joint owner
has interest, however insignificant his share may be, in every molecule of such thing.
Sub-article one may be of some help in situations where the joint owners are two in
number regardless of the percentage of the share they hold. Under this circumstance
Sub-article two would be difficult to meet.

Sub-article two puts two commutative conditions: majority vote and the summation of
the shares of the majority joint owners. By virtue of Sub-article one a deadlock may
arise. Some of the joint owners may have contradictory opinions as to how the thing
should be administered. In this case it would be difficult to reach at decision regarding
management. Hence the law has come up with the solution. This solution tends to
disregard one thing: the implication of the nature of a share, that is, each joint owner
has to have a say. On the other hand the solution tends to balance two interests: the
smooth and speedy administration of the thing and the interest of those joint owners
having greater percentage of shares.

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Art. 1266
As has been mentioned in throwing light on the notion of acts of management, the
matters indicated here are matters requiring unanimous decision. The decisions
involved here are so serious and not made so frequently. They do not entail routine
action of the joint owners. The matters expressly mentioned are: Decision regarding
disposition, mortgage, and change of purpose. Yet what about usufruct and pledge?
With respect to the latter, we could have two ways out. One is that the corresponding
Amharic version uses the word ' ST ('Wastna'). In Amahric language if one uses
this word, it may mean either pledge or mortgage. Further one may reasonably argue
or even from the English word mortgage. The argument goes as follows: Mortgage
contract involves no surrender of possession; the thing subject to mortgage (which is
in principle immovable and exceptionally movables) remains with the mortgagor. Yet
in the case of pledge it essentially entails surrender of possession. In fact, if a pledge
contract stipulates that the movable subject to a pledge contract shall remain in the
hands of the debtor then the pledge contract shall be of no effect. Therefore if decision
relating to mortgage is serious, then, for a stronger reason, decision regarding pledge is
also a serious one. This reasoning will also be applicable to antichresis.

As regards usufruct, it looks that it is implied in the words "to be disposed of".
Disposition may be partial in the sense that the joint owners may alienate only some of
their powers over the thing such as the right to use and the right to enjoy the fruits.
This means, the joint owners after alienating the usufruct aspects of ownership, would
still be owners. In another angel we may argue that decision relating to giving a thing
on usufruct is a serious one too. Once a person creates usufruct over his thing, then he
may have to wait for the lifetime of the usufructuary. Thus he might not enjoy the
fruits and make use of the thing in his lifetime. Therefore this decision is a serious one
and should fall in the ambit of Art.1266. What about decisions concerning
transformation and destruction of the thing?

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Art. 1267
The numbering tells us that this Article is a follow up of Arts.1265 and 1266. The
message seems to be that the joint owners shall bear the consequences of their
decision. They made decisions either unanimously or by majority and these entail
expenses. Even those joint owners who have disagreed with the majority would not
escape from bearing costs. The expenses are to be shared, pro rata; the larger a joint
owner's share the greater portion of the expenses he will bear. This Article contains
elements not envisaged by Art. 1265 and 1266: Costs relating to taxes and charges on
the thing. What do the words "or charging the thing jointly owned means"?

Art. 1268
Necessary expenses are expenditures incurred by one of the joint owners for the
purpose of avoiding total or partial destruction or damage to the thing jointly owned
without securing the consent of the other joint owners. If this is the case, then the
expenses have to be borne by all joint owners, including the joint owner who made the
expenses. The other joint owners have to reimburse the necessary expenses incurred
by an unauthorized joint owner because the joint owner incurring the necessary
expenses has done a job beneficial to them or if he had informed them of the
circumstances before incurring the expenses they would have given their consent. One
may raise the question as to whether the joint owner incurring necessary expenses has
to succeed in his endeavor to prevent loss/damage or not. One line of argument is that
success is not a requirement; what matters is the aim for which the expenses are
incurred; this is implicit from the words "to avoid loss or damage". In order to
strengthen this argument it may be added that if success is made a critical factor for
reimbursement, then it would make a joint owner reluctant to undertake such
activities. Thirdly, and finally, Art. 1268(1) seems to envisage though not exclusively,
circumstances where there is danger or accident. If this is correct, then it will be
difficult to come up with a rational or sober decision. Lacking such second thought
decision, it would be unreasonable to deny a joint owner incurring necessary expenses
of reimbursement. What if the amount of the necessary expenses almost equal or
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exceed the value of the thing jointly owned? Would a joint owner be entitled to be
refunded? This as it may, when a joint owner has incurred necessary expenses, all
joint owners (including the one who made such expenses) are expected to contribute.
Should it be on pro rata basis or on the basis of parity? In the absence of any
indication to this effect under this Article, we may opt for the proportionality principle
of Art. 1267; this is through analogy since both Articles speak of expenses. They
share important similarity. The major difference being in the case of Art. 1267 there is
authority, which is lacking in Art. 1268.

In two alternative conditions, however, a joint owner is not entitled to be refunded. If
the costs were made necessary as a result of the fault of the joint owner who incurred
such expenses, then he himself shall bear it. So is the case where the fault is
attributable to his employee or servants or children. Again if the expense were
necessary but purposeless, then he would not have the right to seek for proportionate
contribution. The words "the expense was purposeless" tend to convey the idea that a
joint owner must be successful. The phrase "was purposeless' does not refer to
unnecessary costs simply because the Article in which the phrase is incorporated
speaks of necessary costs only. Secondly because unnecessary and unauthorized
expenses are dealt in Art. 1269.

The third Sub-article deals with the possibility of renouncing one's share with the view
to avoiding the necessary but unauthorized expenses made by a joint owner. In this
case, unlike the case foreseen by Art. 1262, the effect of surrender of a share is
retroactive. Thus this Sub-article is an exception to Art. 1262(2). The closer reading
of this Sub-article (1268(3) seems to imply that it is the other joint owners but not the
joint owner who has incurred the necessary expense-who may invoke this surrender
Sub-article.

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Art. 1269
Here comes unauthorized but unnecessary costs. These are expenses incurred by one
of the joint owners without having in view to avoid loss or damage to a thing jointly
owned in the absence of consent of the other joint owners. It is immaterial if the
expense so made leads to the increase in economic value or appearance or usefulness
of the thing. Such joint owner alone is expected to assume such burden. The reason
appears to be that if, before making such expenses, he brought the matter into the
attention of the other joint owners they would not have consented, perhaps they might
have considered such proposal a mere vanity!

If he is denied of any reimbursement, he is given an option to remove whatever he
might have affixed onto or incorporated in the thing jointly owned. This remedy
available to him may be ineffective since he is supposed to leave the thing in its
previous condition and since some of the items may not be susceptible of detachment
without damage in such thing. Under this circumstances he is in a precarious situation
and he may resort to the unjust enrichment provisions of our Civil Code.
Art. 1270
If we pursue the definition of unnecessary expenses and its consequent legal effect,
then what is envisaged under this Article would also be considered as unnecessary
expenses. Yet the codifiers have intended to encourage production. This Article is an
exception to Art. 1269. Hence if a joint owner, without consultation with the other
joint owners, incurred expenses in connection with the production or collection of
crops or fruits, he would be entitled to be refunded. As to the manner of
reimbursement the two versions give differing meanings. The Amharic version says
that the joint owner who has incurred expenses in order to produce, or collect fruits or
crops may take grains or fruits and sell to satisfy such expenses. So, he is given the
right to sell crops or fruits as long as this would enable him to satisfy the unauthorized
expenses. Yet the English version tends to say that the joint owner who has produced
fruits and crops and collected the same may sell fruits and crops, then deduct the
expenses from the proceeds. The Amharic version should be taken to prevail firstly
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because for the obvious reason and secondly decision concerning sale of crops
amounts to acts of management and this is to be decided pursuant to Sub-article 1 of
Art. 1265. Yet, contrary to this, the English version authorizes one of the joint owners
to make such decision. Should the other joint owners be compelled to refund if the
expenses which one of the joint owner has incurred in relation to production and
collection of crops or fruits are greater than the proceeds of such crops or fruits?

Art. 1271
This shows joint ownership is voluntary. As one is free to create joint ownership, one
is also free to withdraw. So in relation to movables, a joint owner may apply for the
sale of the same at any time and for whatsoever reason. This is true even a joint owner
has consented to either in the original agreement or a subsequent covenant-a clause
precluding him from raising the question of sale for a fixed period of time or for
indefinite period of time. The word 'apply' suggests that the joint owners could not
reach at a decision relating to the sale of corporeal chattel. That is one of them has
proposed for sale; the others have objected perhaps by invoking a prohibitive clause.
Unlike immovable, movables are larger in volume and frequently change in hands.
Hence agreements prohibiting sale may tend to withdraw commodities from the
market. And unlike movables, in the case of immovable the Code tends to come up
with elaborate provisions, which are more protective. Perhaps these considerations
may be the reasons why prohibitive clauses are honored by the code. This article is
moot about the possibility of one of the joint owners opting for division rather than for
sale. When we inquire into as to why this Article is silent, we might imagine that the
Article envisages the situation where it would be practically impossible to divide a
given movable without losing its individual character or it would be economically
infeasible to do so. As regards cases where partition of movable is possible, it seems
that the Article under scrutiny considers them as obvious.

Those joint owners who have opposed to the sale of a jointly owned corporeal chattel
may show to the satisfaction of the court that the time for sale is inappropriate, then
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the court to which the dispute is referred has the discretion to give order delaying the
time for sale for a maximum of six months. What circumstance, might constitute
inappropriateness of the time for sale? Could deflation be one such situation? What
about the case where a car is jointly owned and one of the joint owners proposed for
sale at the time when the car derives large amount of revenue? Again what if such car
were under repair?
The title of this Article seems to convey the idea that it is concerned with both,
movables and immovable. It should have been entitled "Sale by auction of a movable
jointly owned" The Amharic version suggests that the sale is to be conducted by public
auction while the English version simply says sale by auction. Yet auction may be of
two types: Private and public. In order to eliminate or minimizes the possible
collusion of interest, conducting the sale at public auction is preferable.

Art. 1272
In relation to immovables, as a person has the freedom to step in a joint ownership, he
has the same freedom to step out of it at anytime he wishes and for whatsoever ground.
Withdrawing from joint ownership at any time works only in the case where there is
no restrictive covenant. Where there is a prohibitive clause, it is to be respected. This
is evident from Art. 1274(1). The prohibitive provision may be inserted in the creative
or subsequent unanimous agreement. As per Art. 931 of the Civil Code, this restrictive
agreement may emanate from a clause in a testament. Yet this stipulation is not to be
observed forever. It will be effective for five years. If it exceeds five years or does not
fix a period, the clause is not to be rendered ineffective, nothing to say the whole
agreement. It will be rather reduced to five years. Further, if the joint owners have
agreed not to raise the issue of division of the immovable they jointly owned for the
period of 3 years, then one of the joint owners does not have the right to make' use of
the longer period (the five years) fixed by law. That is, the restrictive provision will
lapse after the expiry of the three years fixed by the joint owners. Would a restrictive
clause be given effect if renewed?

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This article shows that a court of law has intervened. The court is required-by the
legislature-to make order for sale instead of division where (a) division would be
contrary to the nature of or purpose of the immovable (b) or would reduce its
economic value (c) or seriously impair the making use of it. The alternative conditions
appear to have one common denominator: they concentrate on narrowness of space.
Should the sale in such conditions be conducted at public auction or private auction?
Art. 1273
As to the material scope of this Article, nothing is explicitly mentioned. The
numbering however shows that it relates to immovable. The court is given discretion
to postpone the time for division or sale of a jointly owned immovable in controversy
where a joint owner shows to the court that the time for division or sale is
inappropriate. When is the time for application for sale or division of a jointly owned
immovable inappropriate? Joint owners may be in complete disagreement as to who
should administer a given immovable during the period between the date of the order
postponing division of sale and the date of sale or division. In this case, it is necessary
for the court to opt for appointing an administrator.
Art. 1275
It is encouraged that joint owners insert an arbitration clause in the mother instrument
or in a later agreement, which states that, any dispute regarding a jointly owned thing
be settled by one or more arbitrators. The second Sub-article makes reference to Arts.
3307-3346 of the Civil Code.

Art.1276
In principle joint ownership is voluntary and temporary. The consensual nature of
joint ownership is implied from Arts. 1275(1), 1274(1) and 1250 while the temporary
nature of co-ownership is clear from Arts. 1271(1), 1272(1) and 1264(2).
Exceptionally, however, state of indivision is perpetual. The basis of this is necessity.
Perpetual indivision occurs where this is in conformity with the nature or purpose of
the thing coupled with sale or partition is impossible or would lead to unreasonable
consequences. Literature on co-ownership frequently mentions alleys, party walls,
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stairs, corridors, loans, etc as illustrations of things condemned to be perpetually held
in indivision. For additional examples we may resort to Art. 1281(1&2).
Art. 1277.
This is a follow up of Art.1277 as is evident from the sequential numbering. Perpetual
joint ownership triggers several issues: the extent of the right and duties of co-owners and
the manner of administration of the thing. These questions are expected to be governed
by an agreement. The use of the word 'shall' at first sight suggests that it is mandatory to
regulate perpetual co-ownership pursuant to an agreement. Yet, the co-owners may not
have agreed in relation to their respective rights and duties as well as the management of
the thing. And in spite of the absence of agreement to this effect, the perpetual co-
ownership would have effect. What this Article says is that it is strongly advisable if joint
owners in perpetuity come up with an agreement; it is a matter of necessity to prevent or
minimize frequent dispute over the subject matter of perpetual joint ownership. It is
incumbent upon the court to settle the terms of the agreement if the joint owners are in
dead lock. Should the agreement be made in writing? Prior to attempting this question,
one needs to see the link between Arts. 1276 and 1277 and 1278-1308 (that is Section 2
of Chapter 1 of Title 8). This section mainly, if not exclusively, provides rules regulating
perpetual joint owners, as Arts. 1276 and 1277 do. If we see Art. 1277 together with Art.
1282 and Art. 1283, we get these messages: there must be an agreement determining the
rights, and duties of co-owners and the manner in which the thing shall be managed. This
agreement has to be reduced into writing under the pain of being rendered ineffective.

4.2 Special Joint Ownership.
Art. 1278
A party wall is any wall or fence separating two parcels of lands (Art. 1201(1). It is
completely within the power of an owner of a plot whether to build a party wall or to
have an existing one repaired or not; the owner of an adjacent plot may not have any right
to compel him to repair or build, partly or totally, a party-wall. This article can be
connected to Art. 1207 of the Code which states the discretion of an owner of a tract of
land to fence in the same. The owner of the neighboring plot or building may negotiate
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and try to convince his neighbor to construct a party wall. If he refuses, the matter ends
there; he himself can do the job alone.

Art. 1279
This article assumes an already existing party wall constructed at the expense of two or
more individuals. Now the party wall for this or that reason is got destroyed partly or
totally. One of the joint owners has approached the other co-owner and the latter refuses
to cooperate. If he wishes, the approaching party may reconstruct it at his own expense.
If he does make the reconstruction, then he alone becomes the sole owner of such wall.
Sub-article two of this article sets aside the presumption laid down under Arts. 1200 and
1201. The person who has refused to participate in the reconstruction can be a joint
owner at any time if he pays half of the expenses incurred in rebuilding the wall. Should
this article be applicable to construction of a wall? Should this article apply to the case
where the wall has entirely been constructed on a portion of the land belonging to the
refusing party? Should the phrase "at any time" be taken as it is? Can we relate this
article to Art. 1188?
Art. 1280.
In whatever way two or more persons come to be joint owners of a wall, the consent of all
of them is necessary to raise the height of a party wall or to lean a building against it,
open holes therein or do other act. This prohibition because doing these activities without
consultation means challenging the co-ownership status of the other party. Suppose one
of those activities has been carried out by one of the co-owners without consultation?
What would be the legal consequence?

Art. 1281
If there is a building whose parts or floors are owned by two or more persons, then we
assume these persons to own the land on which the building has been erected and any part
of such building which has not been planned or intended to be exclusively used by one of
such persons. This presumption could be set aside; this article seems to be related to Art.
1214 of the Code. Sub-article two of the article under consideration seems to come up
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with an irrefutable presumption; that is under any circumstances, it looks, walls
separating parts of a building may be considered as the sole property of such persons.

Art. 1282
The parts deemed to be jointly owned as per the preceding article (e.g. land, walls
dividing parts of a building stairs, floors, corridors, etc.) are expected to be managed by
the joint owners together. The duties and rights of each joint owner in this connection are
to be determined by an agreement. It is advisable to do so since it is likely to generate a
tremendous dispute. In particular, this agreement shall fix the share of each joint owner
in the parts jointly owned. This is very important since cost sharing (e.g. in the case of
maintenance or repair) or proceeds sharing may follow one's share coming up with an
agreement is strongly advisable though not mandatory.

Art. 1283
Assuming that the joint owners have concluded an agreement, it must be made in written
form. If it is made orally, then it shall have no effect; it would be considered as if not
agreed; it does not mean that the joint ownership would be considered as uncreated. Is
this article necessary given Art. 1675 and Art.1723 of the Code? Is this article applicable
to ordinary joint ownership? Do signatures and attestation go into the validity of the
agreement?

Art. 1284
The agreement regarding joint ownership must be deposited with a notary or court
registry at the place where this building is situate. A person having interest may have a
look at the document or take note or secure a copy thereof. Who is an interested person?
Prospective purchasers; heirs? Agents? Tax authorities? Secured creditors? Any way
the purpose of the deposit and the right to have access to it is publicity. The title of this
article ought to have been entitled "Deposit and Access".

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Art. 1285
The joint ownership agreement may be drawn up by a contractor who is constructing the
building jointly owned or the prospective joint owners even well before the completion of
the construction. After the completion of the building, the syndicate (a body composed of
all the joint owners) draws up the agreement; this is in case where one of the joint owners
has requested so. If the syndicate could not reach at consensus, court intervention will be
sought; why is the need for further agreement when the building is completed if they have
already concluded an agreement before its completion? Why is the contractor allowed to
draw up the agreement? Is this adhesive contract for the benefit of future joint owners?

Art. 1286
Suppose a given contract intended to create a right in rem (e.g. mortgage, usufruct, pre-
emption)was concluded with Ato x on April 3rd 1999 in respect of a building whose
different parts are owned by several persons and suppose the agreement regulating the
different parts jointly owned was deposited on April 1
st
,1999. And further assume that a
contract of usufruct or pre-emption or promise of sale etc. was concluded with Y on April
26th 1992. The right of X would be protected, that is, the claim of Y will be defeated
since the latter person should have consulted the registration prior to entering into such
transaction. What should be the nature of the right, which might be claimed by any
person? Does it include mortgagee? Beneficiary of servitude of view? pre-emption?
Promise of sale? Usufruct? Co-habitation?

Art. 1287
An agreement creating joint ownership and setting out the rights and duties of the co-
owners in relation to the parts jointly owned will bind even if it has not been deposited
particularly such agreement binds the parties, the heirs of such joint owners and their
creditors. An agreement modifying the main instrument might have been concluded only
by some of the joint owners; in this case, parties to such instrument shall be bound.
Which persons do fall under Art. 1287? What is the relation between this article and Art.
1286?
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Art. 1288
It points out default provisions. These are Arts 1257-1308. The agreements of the parties
are to be displaced in case where such agreements are contrary to law or leave out some
matters. Assuming that only some of the stipulations of the agreement are contrary to
law, are the whole provisions going to be set aside or only those parts, which negate the
law?

Arts. 1289 and 1290
Those parts of a building, which are being exclusively used by one of the joint owners,
are owned solely by such joint owner. Since he is a sole owner he has a power equivalent
to a sole owner of a thing has. So he can transfer such parts, mortgage them, give them
on usufruct, etc. without any discussion with the other joint owners. Two important
restrictions are imposed on such an owner. One is in acting as an individual owner he has
to give due regard to the nature of the building and secondly, in acting as a sole owner he
should not jeopardize the similar rights of the other co-owners.

Art. 1291
Compare this article with Art. 1263. Each co-owner is given the right to use the parts
jointly owned. Such physical enjoyment suffers from two important restrictions: the
purpose of the building shall not be ignored and the similar rights of the other co-owners
shall be respected.

Art. 1292
As you reap the benefit, you also shoulder the burden. This burden may come in the form
of costs of preservation, maintenance or administration. The costs are to be shared pro
rata.

Art. 1293
The law requires the joint owners to form a body called a syndicate. All of the joint
owners of a given building are members of such body. The law considers this body as a
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legal representative of its members. The power of this body emanates from the joint
ownership agreement. Particularly this body has the power to make all decisions
pertaining to use and administration of the parts jointly owned.

Art. 1293
One co-owner one vote is not followed. Rather the number of vote a co-owner has
follows the proportion of his value in the parts jointly owned. He need not appear in
person; he may vote by proxy.

Art. 1293
A meeting is to be called by the manager of the syndicate or at the request of at least five
co-owners. The meeting is to be made at the place where the building is situate. So far as
he is reasonable, the details of the meeting are to be prepared by the manager (Art. 1295)

What is the implication of Sub-article two of Art 1295? Does this mean that Arts 1281 -
1308 apply to the case where a given building is owned by at least five persons? Majority
vote is required to make a legitimate decision. When we say majority, we are not saying
numerical one, rather it refers to the number of votes proportionate to the value of share.
Those members who have not been represented nor present at the meeting are to be
served on the outcome of such meeting through the manager (Art 1296). A joint owner
who has not endorsed the decision of the syndicate and which is not in line with the law
or the joint ownership agreement is given the right to lodge his appeal in the court. This
right to appeal cannot be set side aside by the joint ownership agreement; this right is to
be exercised within one month reckoned from the date of the making of the decision.
Suppose the decision is not communicated to such joint owner? Why so short a period of
limitation? Assuming that grievance of the joint owner is accepted, by the court, the
decision it makes binds all of the co-owners (1297). Arts 1298 - 1303 give us details
regarding as to who appoints a manager, the powers, duties and liabilities of a manager.
The building jointly owned might be destroyed totally. If this happens then, a joint owner
may apply to the syndicate for the land and remains of the building to be sold by auction.
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Is it a private or public auction? Application to the syndicate or court of law? Suppose
the syndicate rejects application? (Art. 1304) In case when only parts of a building have
been destroyed, it is within the power of the syndicate to decide whether or not the
building is to be rebuilt or repaired. (Art. 1305). If the syndicate has decided to rebuild
or repair, each co-owner is to share the cost of the repair or reconstruction pro ra ta. In
this case, one of the joint owners may not seek to avoid the costs of the repair or
reconstruction on the ground that those parts, which are solely owned by him, have not
been destroyed. If the destruction or damage is attributable to one of the co-owners or a
person for whom he is responsible, then the other joint owners may sue him on the basis
of extra-contractual or contractual liability provisions with the view to compelling him to
bear the cost of repair or reconstruction (Art. 1306). In a situation where the syndicate
decides not to build or repair the building such building as a whole has to be sold by
auction. The share of each co-owner in the proceeds of the sale is proportionate to his
share in the parts jointly owned. What if his share in the building taken as a whole is very
considerably greater than his share in the parts jointly owned? Would the sharing of the
cost of organizing and conducting the auction follow the same pattern? A joint owner
may not claim a substantial portion of the proceeds of the sale on the ground that the parts
exclusively owned by him have not been the target of destruction or damage. The right of
the co-owners to sue one of the co-owners on extra-contractual basis is in tact (Art.
1307). Art 1308 seems to provide for legal mortgage.

Review Questions

1. What is the relation between Art. 1259 and Art. 1183 of the Civil Code?
2. Would a joint owner be within his/her right if she/he created usufruct on his share?
3. Should decisions relating to usufruct, transformation and destruction of a thing
jointly owned fall within the ambit of Art. 1266? Why?
4. Compare and contrast joint ownership with :
a) sole ownership;
b) partnership;
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c) conjugal property during the currency of the marriage;
d) conjugal property after the dissolution of the marriage;
e) hereditary estate between the date of the opening of a succession and
partition; and
f) Usufruct.
5. Point out the modes of creating and extinguishing joint ownership?
6. Discuss the central features of sole ownership.
7. Identify the pros and cons of joint ownership.
8. May one of the joint owners of a corporeal chattel make it immovable by
destination without seeking the consent of the others?
9. What would be the legal effect of partition in kind on a share (previously) pledged?
10. There appears to be a disparity between the Amharic and English version of Art.
1257 of the Code. Identify the discrepancy.
11. Can a right of pre-emption be exercised by a joint owner against another joint
owner? Why? Why not?
12. Ato X and Ato Y have a car; their share is equal. How should they make
decisions of administrative nature? Would Art. 1265(2) be applicable? Would it
make any difference if the joint owners did have unequal shares?
13. Is there any discrepancy between the two versions (Amharic and English) of Art.
1270(2) of the code?
14. May one safely conclude that all decisions that are not acts of management need
unanimous consent?
15. Is there disparity between the Amharic version and the English version of Art.
1269(1)? Is the difference material?
16. How one may comprehend the phrase"was purposeless" in Art. 1268(2)?
17. Would a joint owner have the right to be refunded if the expenses he incurred in
attempting to produce crops and fruits are greater than the proceeds thereof?
18. Art. 1274 is silent about sale. Would it be warrantable if we construed this Article
in such a way that it would include the case of sale? You may relate your answer
to Art. 1427 of the Code.
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19. In W/ro Trunesh Asenake V Yetnayet Lakew (1987 E.C Cassation Division of the
Central Sup Ct, file No. 171/85) Case, Ato Lakew H/Giorgis died surviving
Yetnayet Lakew. W/ro Trunesh Asenake was the wife of the deceased. A
certain house was a common property of the marriage and half of which
devolved upon Yetnayet as the only heir at law and borne from a previous
marriage. Since serious dispute arose between Yetnayet and his stepmother, the
former applied for partition in Kebele 50 Social Court. This court decided that
"the house be equally divided into" two-The Stepmother submitted appeal to
Wereda 19 Social Court. The latter court decided that "the house be valued by
experts, half of the price be given at one go to Yetnayet and the woman be the
sole owner of the house". Dissatisfied with this holding, Yetnayet filed his
appeal in the Awraja Court which held that: "(1) C b?YwT Xl# FcE b!foM
b@t$N ySqrT mBT yXRcW YN SlnbR (2) kxT wd LJ ytlFN yWRS
NBrT lST xL ys_ Wn@ tqYnT Sll@lW (3) yCN SM yS-W LJ
Xl NBrt$N lST StlF ?UE xYNM blT ktc b b@t$ tgM G#N U mLS
s lxmLC kFl b@t$N XN!SqR wSnL" Again the woman lodged her
petition in the causation Division of the Central Sup.Ct which pronounced that:
1 h#lt$M wgC yS b!N kybk#cW h#lT h#lT >Gl@CN bmMr_
b@t$N xSgMtW yGMt$N G> U w _n> lyTyT kF b@t$N
XNDSqR
2 w _n> lmKfl TCL b!S GN yTyT yGMt$N G> lw _n>
kFlW b@t$N XN!Sq
3 h#lt$M bz!h# l!S Ll# GN bFRD xSf bk#L b@t$ b/J t>
gNzb#N xk#L Yfl#
19.1 How was the joint ownership created?
19.2 Decide on the validity or invalidity of the decision of the Awraja
Court?
20. X, Y and Z jointly built a villa for residential purpose at the joint cost of Br.300,
000.00. Each of them contributed Br 120,000.00, 90,000.00 and 90,000.00
respectively. Having lived peacefully in the villa together for three years,
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disagreement broke out among them all. The cause of the disagreement was Z
"proposal to lease the house out for a rich merchant who intends to open and run
a hotel. Z tried his best to convince X and Y about the profitability of the deal.
Y appreciated the idea and expressed his agreement while X remained adamantly
opposed to the proposal. Y and Z then voted in favor of the proposal and
decided to lease the house for five years.
20.1 Is their decision valid?
20.2 Would your answer be different if the idea proposed by Z was to
maintain the cracking walls of the house?
20.3 Assume that the lessee would not change the residential villa into a
hotel. Would the decision taken by Y and Z then be valid?
21. In Berhe V Estifanos (High Ct. Ct. no.904/76) case, the defendant and the
plaintiff were in wedlock while the wife bought a lottery ticket which turned out
to be a winning ticket after divorce had been pronounced. The husband claimed
half of the prize since the lottery ticket, he argued, was bought by the income of
the conjugal property. The court held that: "the prize shall be the common
property of the spouses as the woman did not show that she bought the ticket
with money separately and personally owned and it was not established by the
family arbitrators to be her own personal property". Do you concur with this
holding? Why?
22. In Tesfaye Zareu V. Commercial Bank of Eth. and Getaneh Waite (1980, C.A
No. 1687/80) case appellant and second respondent jointly owned a car. The
latter sold his own share to appellant for Birr 37,500 out of which Birr 7,500 was
not paid. The second respondent surrendered the possession of the car together
with the car booklet title to the appellant. The first respondent obtained a
judgment against the second respondent and levied its execution on same car
which appellant claimed to have bought. High court accepted the claim of the
Bank. What is the relevance of this case to our law of joint ownership?
23. S, P and Q have a motor vehicle, which was originally meant to transport
passengers from Awassa to Dilla. A couple of months ago P and Q agreed that
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the car should serve to transport sand, gravel and stones since transportation of
passengers becomes less profitable. And the car now has started its new
function. Does S have a legal remedy?
24. Suppose the agreement made by P and Q was a simple change of business route,
that is, from Awassa to Dilla to from Addis to Weliso. Would your answer vary?
25. Suppose the decision made by P and Q was a change of the driver and the co-
driver. Would that make any difference? Suppose the decision relating to
change of the driver was made only by Q.
26. Ato R, Ato T, and Ato U own a refrigerator. A to R has 60% of the share. He
sold the share to Ato V. Ato T and Ato U argue that Ato R cannot sale his share
without consulting them. They also contend that they do not want a new
member, Ato V, Rule on the validity of their arguments. Do they have a feasible
solution?
27. Ato X and Y are daily laborers. A month ago a certain contractor employed
them for three days. On the third day, they received their wages. Since the
contractor did not have change, he gave them a ten Birr note and told them to
share it equally. Since they could not get change, they approached a lottery ticket
vendor and bought a ticket for Birr one. The ticket was under the custody of Y.
After 15 days it turned out to be a winning ticket (Birr 20,000.00). After this
wonderful chance, Y refused to share the prize with X, S approached you
wishing to get your well-considered advice.
28. Ato M and Ato N do have adjoining plots of land. A year ago Ato M requested
Ato N to be the joint owner of the fence he (M) has intended to repair by
contributing half of the expense thereof. Ato N refused and Ato M carried out
the task alone. Now Ato N alleges that the fence is a jointly owned thing while
Ato M denies the claim. Dispose their dispute.
29. Relate Art. 1271(1) with Art. 1258(2) of the Code.
30. May a joint owner of an immovable apply for sale by auction thereof in spite of a
contrary agreement?
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5. USUFRUCT
Art.1309.
This definitional Article points out the two essential rights emanating from usufruct:
the right to use and the right to collect fruits. The right to use consists in either
personal enjoyment or through other persons. The second facet of the right is
imperfectly expressed since Sub-Art. (1) says " enjoying things". It is the fruit not
the thing which is to be enjoyed by the beneficiary. The Amharic version is evident on
this point for it says "kezihu ne'ger lai kemige'gnut ne'geroch ( friewoch)". The
Article is moot about the idea that usufruct is a real right. This is evident from Title
VIII that runs": Joint Ownership, Usufruct and Other Rights in Rem". It is silent about
the fact that the beneficiary of the usufruct - the usufructuary- avails himself of double
rights on the things owned by another. Usufruct is a mutilation of ownership; the
owner carves out two aspects of his power and gives it to another person, the
usufructuary. The Article, moreover, neglects to mention the core idea that usufruct is
basically a life estate; it dies with the beneficiary; it is non-transmissible real right. The
usufructuary has a right in rem comprising the right to use and collect or have
collected the fruits with a fundamental reservation - the duty to preserve the substance
of the subject matter of the usufruct. He is expected to restore the subject matter at the
expiry of the usufruct. Thus, he does not have the right to transform, dispose, or
destroy the subject matter of his rights. These prerogatives are held by the naked
owner. However, there are certain exceptions where a Usufructuary may be an owner
of the subject matter of the usufruct; as such he may alienate or consume up or destroy
such things or rights (see Arts. 1326 and 1351 C.C).

Sub-art. (2) addresses the issue of material scope of the usufruct. As per this
provision, the subject matter of the usufruct may be land, corporeal chattels, rights or
inheritance. What about buildings? This must be a topographical error. The Amharic
version says immovables and Sub-Art.. (1) of the provision under focus also employs
the word "thing" which may mean movables and immovables when we see it in light
of Art. 1204(1) and Art.1126 of the code. Sub-Art. (2) is superfluous. Why we need it?
115
The subject matter of usufruct is already indicated by the definitional Sub-Art. that is
Art. 1309(1). According to this latter Sub-article "things or rights" are subject to
usufruct. And one could easily grasp by the word "things" to mean movables and
immovables. Similarly, it stands to reason to understand by the words "rights" to
mean patent, copyright, inheritance, or other claims, which are referred to by Arts.
1347ff.

Art. 1310.
The legislature has made a gross reference to the other sections of the code: instead, he
could have simplified the matter. The idea wished to be conveyed is the mode of
acquisition, transfer and extinction of usufruct constituted on corporeal goods
(movables and immovables) and incorporeal goods (e.g. copyrights, patent, usufruct
on usufruct, inheritance, claims). If we focus on the creation of usufruct, we need to
have either the will of man (contracts or testament) or the authority of the law. In the
case of ordinary movables, apart from cause (law or juridical act), the usufructuary has
to take possession of the corporeal chattel (see Arts. 1184 and 1186 (1)). The
possession may be direct or indirect (see Art.1141). As regards immovables, apart
from cause, the formality requirement is a critical test - registration (see Arts.1184 and
1185). In French law, there are instances where usufruct may be created by law. For
instance, by operation of the law parents do have usufruct on patrimony of their child
until the child attains the age of majority, and the surviving spouse has usufruct on the
common property. In our case, the only instance where legal usufruct is recognized is
Art. 850 of the C.C. Supposing that a usufruct has been constituted on a certain
immovable, supposing that the usufructuary has not entered into possession of it and
supposing that the third party has taken over the possession, and paid taxes for 15
successive years, the third party would prescribe against two persons, the bare owner
and the Usufructuary.

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Art. 1311
This provision is one of the ramifications of the definitional article (Art.1309 (1)). The
beneficiary has the right to take possession of the subject matter of the usufruct either
personally or through his agent. Concomitant to this right is the power to bring
possessory action against the naked owner or his heir or third parties into whose hand
the thing has fallen (see Art. 1341). Once he has put the thing under his control, then
he has the right to make use of the thing physically; he has the right to derive the fruits
of such thing. Again as a corollary to the right of usus and fructus, a Usufructuary is
entitled to administer the thing. The reader is referred to our commentary on Art. 1265
on question of the meaning of administration of a thing. But what is the standard
expected from the usufructuary in managing the thing? The next Article supplies the
solution.

Art. 1312.
It opens with the phrase " in the exercise of his rights" means in enjoying the rights
to use and to collect fruits from the subject matter of the usufruct. In so doing, the
Usufructuary is obliged to follow the standard of sound management. (It is one of the
cardinal duties of the Usufructuary. This duty is essential because the usufructuary is
only interested in the fruits and he may easily neglect the care for the substance.) This
test is an objective one: the reference point is not the conduct of the beneficiary for he
may be very careless in taking care of his affairs. Nor is the reference point the naked
owner who may be quite negligent. The criterion has in mind the principle of prudent
management. From this objective standard follows a number of duties.

Art. 1313.
Because of the fundamental duty of the usufructuary to carry out management
activities as a prudent father, he is duty bound to make ordinary repairs. If the walls of
a building subject to usufruct fade, he must have them painted; if there are minor
cracks he must have them maintained; if the roofs are leaking he must have them
sealed. He is to cover the costs of these activities. Can we conceptualize normal
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repairs? The a contrario reading of Art. 1337 could perhaps supply a solution. That is
a normal repair is a repair, which entails expenditure less than or equal to the average
yearly income derived from the thing to which the usufruct extends. The issue of
ordinary repair would be relevant only so long as these repairs relate to the duration of
usufruct. What does the phrase "management expenses" mean? Are not expenses
of normal repair management expenses? If the answer to this query is in the
affirmative, then why a separate phrases? This phrase might refer to the other
management expanse, such as, expenditures relating to the collection of fruits and
leasing out the thing etc. Moreover, the Usufructuary is to bear interests on debts
charged upon the thing subject to usufruct. This may happen in cases where the subject
matter of the usufruct is an inheritance. And the hereditary estate might have creditors
and they may be entitled to simple and compound interest. Should the 'debt' referred to
in this Article be also taken to mean debts under mortgage and pledge contracts? The
Article under consideration does not provide only for normal repairs; it also addresses
the issue of management expenses generally and the question of payment of interest.
Hence the Article provides for more matters than its title may suggest.

Art.1314
The charges mentioned here are routinely paid out the subject matter of the usufruct;
the bare owner himself derives income from the thing for setting these charges. The
charges are connected to the thing subject to usufruct. Therefore, it is his duty to pay
such charges. Yet his duty to make payment is operative when the charges are mature.
Annual taxes are the best example of ordinary charges. What do we mean by the words
"other charges"? Would these words mean the situation where a deceased has stated in
his will that a usufructuary-legatee either by universal title or particular title-shall pay a
certain amount of money to a designated beneficiary for a certain period of time?
There is disparity between the Amharic version and the English version of Sub-
Art..(1); the former says the ordinary charges shall be paid in the name of naked owner
while the latter does not adopt the name test; it is silent on this point. Sub-Art. (2) is an
exception to Art.1168. The fact that a usufructuary pays, in fact is obliged to pay, taxes
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relating to immovables for 15 successive years and puts an immovable subject to the
usufruct does not confer upon him title; in other words, this facts would not have
prejudicial effect on the bare owner's right. Simply stated, the usufructuary would not
acquire title through usucaption.

Art.1315
Unlike the ordinary charges provided for by Art.1314, these charges are unanticipated;
they are rare. They are not normally paid out of the income derived from the thing
subject to the usufruct. War contributions, housing of troops and costs of drainage or
swamps are often cited as examples by literature. Whatever the nature of extra-
ordinary charges, it is the naked owner who is bound to cover them. Obviously as to
who should cover extra-ordinary charges relates to during the currency of the usufruct.
Supposing that the bar owner does not have money to cover the extra-ordinary charges
or that he may not be willing to affect his pocket, does he have other option? He may
request the usufructuary to lend him the amount, which would cover the charges
without interest. If the usufructuary is not willing to extend loan without interest, then
the bare owner has another option: to sell some or parts of the subject matter of the
usufruct. Thus, in this situation both the bare owner and the usufructuary share extra-
ordinary charges: the former the principal and the latter the interest. The phrase "in
order to pay such charges" suggests that the bare owner has the right to sell things or
rights subject to the usufruct only to cover the charges; he cannot sell more than which
satisfies the charges. Can the usufructuary claim the principal he has advanced before
the expiry of the usufruct? The wording of this Article is unclear as to its the material
scope. Does Sub-Art. (1) limit itself to the land or does it extend to immovables? What
about Sub-Art. (2) ? Does it deal only with corporeal chattels and rights? Do the words
'things' and 'right' convey the message that Sub-Art. (2) does exclude immovables?
Sub-Art.(1) appears to suggest that where the subject matter of usufruct is land, the
bare owner does not have any option than cover extra-ordinary charges. On the other
hand, this Sub-article tends to convey the idea that the naked owner will have option in
the case where the usufruct extends to matters other than immovables (particularly
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land). Yet one may argue that the material scope of this Article is immovables and
rights since the corresponding Amharic version contains words "bezih habit"
which in turn makes reference to Art.1314.

Art.1316
Inventory means assessing the value, describing qualities and listing the number of
goods subject to the usufruct. In the case of immovables inventory may involve
specifying their conditions. It has evidentiary value since the usufructuary is duty
bound to make restoration at the expiry of his/her right, questions relating to the
qualities, quantities and value of the thing covered by the usufruct would likely arise,
witnesses may die, memories may fade away. So it is of paramount importance to
undertake inventory. The right is given both to the grantor and the beneficiary. It is
available to them at any time; it seems strongly advisable if the inventory is carried out
at the commencement of the usufruct. More specifically, it is prudent of the naked
owner to require inventory before he surrenders the objects to the usufructuary. The
expenses arising from the inventory are to be borne by both parties and perhaps to be
shared equally.

Art. 1317.
Sub-Art.. (1) is only the implication of Art. 1309(1) (particularly of the last words).
When the usufruct comes to an end, the usufructuary is duty bound to return the
subject matter to the bare owner or his heirs. Yet this duty to restore does have
exceptions (see Art.1327). This Sub-article identifies another exception; in this case,
the subject matter of usufruct is a non-consumable good. The thing might have been
destroyed or deteriorated. The Sub-article under consideration is fault based. If the loss
or deterioration is attributable to the intentional or negligent conduct of the
usufructuary, then he cannot exonerate himself from liability. The liability will be
based on the provisions of the Law of Extra-contractual Liability. This is an implied
reference to the Art.2027 and ff. The words "without fault on his part." tends to
exclude the case where partial or total loss of the thing covered by usufruct is
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attributable to a person responsible to the usufructuary (that is, his children or
servants). The usufructuary is not responsible if the loss or deterioration arises from a
normal wear and tear or fortuitous circumstances or decay (see Art. 1326,1319 and
1343)

Art. 1318
It does not prohibit the creation of right in rem on the thing on usufruct. It simply puts
a limiting factor. So a usufructuary may pledge, mortgage, create servitude, or
constitute another usufruct. However all these real rights must not be capable of
impairing the rights of the naked owner. When would the naked owner's right be
impaired? Do the words "capable of impairment" mean that the usufructuary may
not give the thing covered by the usufruct in pledge or mortgage knowing that he is
insolvent or knowing that the principal debtor would be insolvent? Why special
emphasis on pledges? Perhaps it may be that pledge relates to movables and that it
involves surrender of possession, which might be detrimental to the interest of the
naked owner (see Art. 2825). The last Sub-article provides remedy to the bare owner.
It will come to the operation when the beneficiary infringes the other two Sub-articles
without securing the consent of the owner. The remedy is the right to terminate the
usufruct without indemnity. When? The English version does not make any reference
to time; the Amharic version does, the termination is automatic (immediate). Would
the termination be an out of court affair? The reading of the Sub-article appears to say
that the bare owner is entitled to terminate the usufruct without the need to go to court.
If this is so, then it is the owner who would decide whether his rights are impaired by
the creation of right in rem by the usufructuary. In our opinion, the last limb of Sub-
Art.. (3) has to be read "the latter may require the termination of the usufruct
without compensation." Without compensation means that the Usufructuary may not
qualify for the enjoyments he would have got in terms of money and demand
indemnity from the bare owner if the latter ends the usufruct before the expiry of the
period fixed. The term 'require' would invite the intervention of the court and this
ought to be so since unilateral termination of usufruct without indemnity is a drastic
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measure and since without some sort of limitation the owner may use this opportunity
as a pretext to bring usufruct to an end.

Arts. 1319, 1343 & 1344
Loss of the subject matter of the usufruct heralds the extinction of usufruct. The loss
shall be a total one. If the building collapse or is destroyed because of decay or
accident (unforeseen circumstances) none of the parties are accountable to rebuild;
termination of the usufruct instead will be its juridical consequence. Yet if the loss
relates to part. of the thing covered by the usufruct, then the right will continue on the
part. that is not lost. According to French jurisprudence, the Usufructuary will also be
entitled to enjoy the remains (the crumbles). Even the closer reading of Art. 1344 does
show that the Usufructuary will be entitled to enjoy the ruins. One may say that the
usufructuary may not enjoy the materials arising from partial loss since they are capital
and does not in principle have the right on the capital. By virtue of Art.1319(2) the
subject matter of the usufruct is lost either because of expropriation or requisition. In
the former, an immovable is taken away by the government authorities and
compensation is advanced before the expiry of the usufruct. The usufructuary's right
will be transformed; i.e. the usufruct will acquire as its subject matter not the
immovable anymore rather the expropriation award. As regards requisition, it
presupposes the taking of movable things by the government particularly in wartime or
in emergency situation. This act of the authorities is expected to be accompanied by
compensation. And the law says that award will be the subject matter of the pre-
existing usufruct. From this it follows that the bare owner may not make expropriation
and requisition as pretexts for the termination of usufruct. That is, the Usufructuary
may insist on the continuation of his usufruct after expropriation and requisition.

Art. 1320.
Here the codifiers envisage four circumstances. Implicit but not express is the case
where the Usufructuary and the bare owner have taken out insurance policy for their
common benefit. If this is true, then the former would continue enjoying the indemnity
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in his previous capacity. The second situation is the one where the parties take out
insurance policies covering their respective rights. The usufructuary will reckon the
rights to use and to collect fruits available to him or assess them in terms of money and
take out insurance only to that extent. At the event of the realization of the risk the
entire compensation will go to the usufructuary but as an owner. The latter will get
nothing. The same is true in the case where the insurance contract is taken out by the
bare owner and relates to his right only. The third idea is the case where bare owner
alone takes out insurance policy and makes the usufructuary a beneficiary. Such
unilateral stipulation would be operative only if the beneficiary accepts the stipulation.
The last idea is the reverse of the third point, that is, the situation where a usufructuary
alone concludes insurance contract and makes the naked owner who has subsequently
accepted such stipulation. The English version of Sub-Art..(1) and (2) employ the
word "provided" while their corresponding Amharic version uses "agreed".

Art. 1321.
The legislature shuts the door for a certain inference. The bare owner may require the
Usufructuary to make an assessment at any time. This right is also at the disposal of
the Usufructuary. Assuming that an inventory (which includes valuation) has been
made or, valuation has been made in a document other than inventory. This fact by
itself should not amount to transferring ownership of the good so valued to the
usufructuary. The fact of valuation has to be supported by another act in order to have
the effect of transfer of title by the bare owner and the usufructuary must have agreed
to the effect that valuation is tantamount to transfer of title. If there is such an
agreement then the Usufructuary will get the full ownership of the goods valued. And
at the expiry of the usufruct, he will return the value at which the goods were valued.
If, however, the two parties simply made valuation either in the inventory or another
document, then the Usufructuary shall be obliged to restore the things valued upon the
termination of the usufruct.

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Art. 1322.
Usufruct is essentially a life estate; it is inseparably linked to the person vested with
the two facets of the right. The right is there to maintain or support the grantee, it is a
donation in the form of right in rem. It is not inheritable. Thus, the death of he who
benefits from usufruct will always announce the extinction of usufruct. A usufruct
will, secondly, terminate when the period specified in an agreement creating usufruct
or a subsequent agreement expires. And in cases where a period is fixed but before its
expiry if the usufructuary dies the usufruct comes to an end. In the case where the
usufructuary is a moral person the usufruct terminates at the expiry of 30 years or at a
shorter period. The law fixes a certain period because moral persons may possibly
exist forever unlike physical persons. This would nullify the right of the bare owner
who would never be reinstated in his position of a full owner. There are other grounds
for the extinction of usufruct. Consolidation or merger: the usufructuary may buy the
bare ownership, the bare owner may donate his title to the Usufructuary, or the
Usufructuary might sell or donate his right to the bare owner. Another instance of
merger is succession of the bare owner by the usufructuary. Consolidation might be
logically implied from the definitional provision (Art. 1309 (1)). Total loss is another
example of extinction of usufruct (Arts. 1319(1) and 1343). However theoretical it
may be the right of the bare owner to sell things covered by usufruct for the purpose of
meeting extra-ordinary charges may be a reason for the termination of usufruct
(1315(2)). We may consider forfeiture by virtue of Art.1318(3) and 1330(3) as an
additional cause for termination of a usufruct. The usufructuary may renounce his right
(Art.1323 (2)). usucaption or prescription can lead to the coming to an end to the right
(Art.1168 and 1310(1)).

Art. 1323.
The first limb of Sub-Art..(1) is an exception or leaves the exception pointed out under
Art. 1315(1). The reader should notice that the corresponding Amharic version of
Art.1323(1) does make reference to Art. 1215(1) rather inaccurately for it says
"kezih belai betene'gerew beliyou g'detta aga'ttami huneitta kalhone beqe'r".
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Pursuant to the latter provision the bare owner may dispose of some of the things
covered by the usufruct with the aim of setting extra-ordinary charges which are linked
to the capital, unlike ordinary charges which are connected to the income of the thing
subject to usufruct. The act of disposition by the bare owner to discharge extra-
ordinary charges will affect the right of the usufructuary; the purchaser would get
possession and full ownership immediately. In other cases of disposition, however, the
usufructuary's right to use the thing and reap its fruits would not be prejudiced even if
the bare owner has the unquestionable right to dispose the thing subject to usufruct.
Put in other words, though the bare owner may alienate the thing he has given on
usufruct, the transferee or donee could not enjoy the right to use and collect fruits until
the expiry of the usufruct. This is the ordinary application of the age-old maxim; a
person can only transfer a title he has. During the currency of a usufruct, a bare owner
has the right to alienate subject to usufruct. Therefore, he can only transfer this, not
more. Of course, this is one of the basic defect of a thing encumbered with a usufruct:
while the owner will have the right to dispose of the property, the purchaser will take it
subject to the claims of the usufructuary; normally, a purchaser will be anxious to
obtain the property free of all other interests, and so he will be reluctant to acquire it.
This 'immobilization of property', as a certain writer puts it, might be avoided if the
usufructuary consents to renounce his right. In the event of sale by the bare owner, the
usufructuary may expressly let the purchaser take possession of the thing and therefore
become full owner thereof. Alternatively, the usufructuary may renounce his right in
favor of the bare owner so that the latter would sell the thing for better price since by
then he would be able to give immediate full ownership. Whether the usufructuary has
renounced in favor of a third party or the bare owner, if he does it freely this amounts
to donation. The renunciation may also be onerous. The renunciation of the
usufructuary right must be express, it cannot be tacit for then it will be invalid. The
provision under consideration provides for alienation; it says nothing about pledge,
mortgage and antichresis by the bare owner. Can he create these real rights?

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Art.1324.
The naked owner has at his option to require the usufructuary to provide sureties. This
right will come to operation only when he shows that his right is in jeopardy. This
seems to invite the intervention of the court of law. There is disparity between the
Amharic version of the first Sub-article and its corresponding English version. The
latter says sureties (that is, personal guarantees). The former uses a word suggesting a
broader meaning (that is, any security, be it real or personal). Though legally and
theoretically possible, it is impractical to expect the usufructuary to furnish real
security since the situation of usufruct presupposes the need and support of the grantee
and since usufruct is fundamentally a life estate. Under what circumstances the
usufructuary may show his rights are in danger? One case where he may show that his
rights are at stake is: when the usufructuary encumbered the thing with real rights
without the consent of the former capable of impairing his right (Art.1318 (1) and (2)).
He may also prove this where the thing has been expropriated or requisitioned and
expropriation award is advanced by the authorities. In this case the property is
converted into liquid asset which could easily be squandered (Art. 1319(2)). Again
stake may be proved when both the bare owner and the usufructuary have taken
insurance policy benefiting both or one of them alone takes of insurance policy but
makes the other beneficiary and such beneficiary has accepted the stipulation and
moreover the risk covered has materialized which results in the payment of
compensation (Art. 1320). Still another situation is that the Usufructuary has abused
his right in particular he has attempted or commenced to substantially alter the thing or
changed the purpose for which the thing was destined (Art. 1330 ). The first Sub-
article addresses the case where the thing given on usufruct is a non-consumable
goods. As regards consumable goods the bare owner is not even expected to show that
his right is at stake. The law seems to assume that the mere fact that the goods covered
by the usufruct are consumables is sufficient to conclude that the bare owner's rights
are in jeopardy. The fact that the bare owner is not duty bound to prove that his rights
are in jeopardy is explicitly mentioned in the corresponding Amharic version of Art.
1324(2) which contains the words "masrejam sayset " The owner can require the
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usufructuary to provide security before he surrenders the possession of the consumable
goods. The word "restoration" in Sub-Art.. (2) is inaccurate; in stead it would be
accurate to use the word 'surrender' . The Amharic version employs a very accurate
word ' masrekeb'. The implication of Sub-Art..(1) and (2) is that in the case of non-
consumable goods the bare owner may not require the usufructuary to furnish
securities unless the former proves that his rights are at stake.

A thing covered by a usufruct may be put under the custody and administration of a
curator or a court appointed agent. The court would make such an appointment when
the usufructuary is called upon to produce securities yet he has failed to do so within a
reasonable time. The court could also appoint a curator when the usufractuary keeps
on making unlawful use of the thing despite the fact that the bare owner has made
objection. The words "unlawful use of the thing" may be used to mean, among others,
the situation envisaged by Art.1330(2). It follows that failure by the usufructuary to
provide security within a reasonable time alone or failure to cease unlawful use of the
thing after objection by the bare owner would not automatically result in the extinction
of the usufruct .The title of the Article under scrutiny is rather inaccurate in stead of
protection of the owner it should have been entitled securities as the corresponding
Amharic version does.

Art.1325
Pursuant to Art. 1311, we said that a usufractuary has the right to control the thing
since he cannot exercise the other right unless he has such power. This Article
stipulates that the usufructuary has to take the subject matter of the usufruct as it is.
When? The English stipulation is silent. The Amharic one says"be'alaba bmikeblbet
geze", at the time when he assumes the rights emanating from the usufruct. This
time will be automatic in case where the usufruct arises from the law; it shall be as
agreed if it arises from contract and it will be the opening of succession if it emanates
from testament or at the time when the liquidation process is wound up. When the
code says "in the condition he finds it", it means the obvious; if the subject matter is a
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building which is about to fall down or a deteriorated one for want of repair, the
Usufructuary cannot have the ground to complain; he cannot force the bare owner to
repair or to rebuild the building subject to usufruct. Nor can he require the naked
owner to have a car covered by usufruct repaired or painted if it is badly in need of
repair or painting. The message of this Article seems clear: usufruct is a bonitary
institution. Of course, the Romans invented it for the support, and maintenance of
needy relatives or friends. If it is a benevolent institution, then it should not be onerous
to the grantor; the grantee shall be entitled only to the extent the former has decided to
benefit him. However, where a usufruct is constituted for consideration, then there is
no reason why the parties may not stipulate to the effect that the bare owner put the
thing in good condition, that is, undertake repair at his expense before delivery.

Art. 1326.
The material scope of the preceding Article (Art.1325) is broad in the sense that it
covers both consumable and non-consumable goods. What are consumable goods?
(See the commentary on Art. 1327). This Article seems to deal with non-consumable
goods. Yet one may disagree in the sense that this provision does relate only to one
aspect of non-consumable goods, particularly movables. This argument may find
authority from both the Amharic and the English version of Art. 1326(1) since both
versions refer to corporeal chattels only. Deeper reading of the Amharic version of
Art.1326 (2), the structure of section two and the title of the English version of the
same section give us the massage that Art.1326 provides for both movable and
immovables. Admittedly, the Amharic version of section two runs:" sele ge'zuf
tenq'saqash habtoch yemitsena (yemifetsem) liyou denb" [emphasis added].
Nevertheless, the English version reads :"Special Rules Regarding Usufruct of
Corporeal Goods" [emphasis added]. For the purpose of academic discussion, the
latter general words are accurate since there are provisions in the same section dealing
with immovables (see Art.1332, 1333, 1337, 1338, 1339, 1340, 1343, etc.). There is
another argument from the Amharic version of Art. 1326(2) which uses the words "
be'alaba be'tesetew habit", which could mean both movables and immovables. The
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third reason for the broader understanding of this provision should come from the
structure of Art.1327 and the provision under focus (Art.1326); the former talks of
consumable goods while the latter speaks of non-consumable goods. Implied from this
is a logical classification of corporeal goods into two.

The material scope of the provision as it may, the usufructuary has the right to use the
thing to its normal purpose for which the thing was destined by the bare owner. If the
bare owner did not destine the thing for a certain purpose, then the Usufructuary shall
use the thing in conformity with the purpose for which others use it. According to
literature, thus, the phrase "normal purposes" means the usage of the bare owner or
owners in the locality. The code is silent as to what it does mean by the words "normal
purposes". One clear example of abnormal purpose is the situation where the
usufructuary is about to or has already substantially changed the purpose or the nature
of the thing (Art. 1330 (2)). The words "normal purpose" may thus mean: the custom
of the bare owner or the custom of owners of the same thing in the locality (or owners
generally) or the purpose for which the thing has been produced or commonly
destined. Whatever meaning the words "normal purpose" might connote, the
usufructuary will not be liable for deterioration or destruction of the thing as long as he
has shown that he has been using the thing following its normal purposes. This is
natural simply because every thing on this earth is subject to wear and tear.

Art. 1327
Here quasi-usufruct is dealt with; it is an exception to Art. 1309(1) that presupposes
non-consumable things and eventual restitution. Consumable goods are things, which
cannot be used without destroying or alienating them; if they are to be of any
significance, they have to be alienated or consumed up at first use. Things, which are
useless, unless consumed are wines, coal, foodstuffs, etc. while things, which have to
be, alienated at first use are coins, bank notes, merchandises, etc. Yet the illustrations
do not mean there is hard and fast rule: the parties may by agreement make non-
consumable goods consumables. Would the vise-versa be true since Sub-Art.. (1) uses
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the word "shall" ? Should we assert that the sole fact of consumability confers
ownership right upon the usufructuary? Quasi-usufruct is a deviation from normal case
of usufruct because in the latter instance, the usufructuary is not entitled to destroy,
alienate, and transform the substance of the thing or generally, he cannot be an owner
of such thing. In the case of semi-usufruct, on the other hand, the beneficiary becomes
the owner of the thing covered by the usufruct either because of the very nature of the
things or by virtue of agreements of the parties. Consequently, the usufructuary will
become the owner of such things, which means having all the powers any owner may
enjoy. One of the legal effects of the termination of usufruct is to make restoration.
Here the usufructuary will pay the value of the things reckoned at the time of the
creation of the usufruct. The suggestion is that it is strongly advisable to assess the
value of such things at the beginning of the quasi-usufruct. Either of the parties
particularly the bare owner may invoke his rights under Art. 1316 and 1321. Our law
in this regard has followed a very simple solution. Other jurisdictions such as the
French law adopt very disputable solutions; they stipulate that the usufructuary may
give the equivalence of what he took or pay the value of such things. This raises
several issues: who should select the qualities of the things to be returned? What if the
usufructuary could not get things of the same quality? Should the usufructuary pay the
prices of the things at the time of the creation of the semi-usufruct or at the termination
of the same?

Art. 1328
A fruit is a product of a thing collected at regular interval (that is yearly or at shorter
intervals) without diminution of its own substance in consequence of such collection.
This definition is gathered from Art. 1170 (2) and Art. 1333(a) and (b). Hence the two
central elements of this definition are periodicity and without diminution of the
substance of the thing. So, strictly speaking, if the products are not collected at regular
interval then, they are not fruits. Regular interval means yearly or at shorter interval.
And if the collection of the "fruits" leads to the diminution of the substance of the
thing, then they are something else. Fruits may be of three kind: natural fruits (e.g.
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breeding from animals) civil fruits (e.g. rents, interests) and industrial fruits (e.g.
crops) for natural fruits see Arts. 1171 and1328 (1) and as to civil fruits see Art.1331
and 1347. The law assimilates products to fruits though, strictly speaking, this is not
the case because the two tests for fruits cannot be complied with. The second limb of
Art. 1170 (2) and Art. 1333 recognizes product as fruits. Examples of products are
cutting of trees other than seedling, and capsewood, substances from mines, pits, and
quarries. In the case of trees the element of periodicity is wanting and thus in principle
they are seen as capitals. As regard mines pits and quarries no earth bears such things
as fruits and the result of extraction is exhaustion of the earth. Nevertheless,
sometimes these products become a regular source of income for the owner. And if the
owner constitutes usufruct it is said that the usufructuary shall also be entitled to enjoy
them.

This article makes the usufructuary the owner of fruits where:
a. the products relate to physical fruits ( natural and industrial fruits),
b. the time when such physical fruits are separated from the principal thing,
c. the separation from the principal was made according to its destination or custom
and the collection of such fruits have been made in good faith.

The words "natural fruits" are used to convey a wider meaning, that is physical fruits
of the thing covered by usufruct only after collection. The collection or separation of
fruits must be made having regard to, according to the Amharic version " be'nege'ru
allamana nege'ru bemisetew age'lgi'lot meseret" meaning the purpose and the
service of the thing; the usufructuary will have to observe the porpose for which the
bare owner put the thing in producing and collecting fruits. As has been put above, the
english version uses the word "custom". One may attribute to this word a meaning
which is roughly the same as the Amharic version. For instance,it may mean that in
collecting fruits, the usufructuary has to follow the habit of the bare owner or he must
follow the habit of other owners of the same thing in the locality. There is also the test
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of good faith which could connote the message that the usufructuary shall not
accelerate fruits nor shall he collect them prematurely.

Sub-Art..(2) apears to cover the situation where usufruct commences already before
standing fruits are collected by the bare owner. The latter might not have time to reap
what he has sown. Or it might be the case that the fruits are ripe at the time when the
usufruct begins. How are we to establish that the usufructuary has collected in excess
of his entitlements? We should bear in mind that he is entitled to enjoy fruits for the
period covered by the usufruct. If this is the case, we may employ the formula of Art.
1331(2). When we read this Sub-article, mutatis mutandis, it looks:the usufructuary
shall become the owner from day to day of the fruits produced by the thing. Therefore,
if there are premature fruits standing at the time of the commencement of the usufruct,
they may belong both to the bare owner and the usufructusry. Though this Sub-article (
Art.1328(2)) is silent ,this formula would also apply to the case where the usufructuary
has not collected fruits either because they are premature or he has no time to do so at
the time when the usufruct expires. In this situation, by analogy, some portion of the
fruits shall go to the bare owner, the other portion to the usufructuary.

Arts. 1329 and 1159.
Treasures do not meet the definition of fruits. It is said that no eart.h bears treasure as
fruits. For a thing to be a treasure:
a) movability (see Art. 1159 and 1151) which excludes minerals,
b) the movables must have been hidden or burried in the immovable or another
movable,
c) the latter condition must have taken place for not less than fifty years and not
going beyond the year 1850.
d) the period is to be calculated from the date of discovery ,and
e) no one could be shown to be an owner.

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The person who has discovered a thing meeting these conditions will get half of the
value of such thing; the owner of the thing in which the treasure has been discovered
will be the owner. Thus, the usufructuary will be entitled to half of the treasure only if
he himself has discovered such treasure. He will get half of the value of the thing
because he is the finder of the thing.

Art. 1330.
Enshrined here is the abuse of rights doctrine as applied to usufruct. As Planiol puts it
abuse of right as applied to usufruct means:" there is abuse of enjyment when the
usufructuary damages the property or allows it run down through lack of upkeep", or
generally, in usufructary's "obligation in a manner sufficiently serious to endanger
things covered by his usufruct" amounts to abuse of the enjoyment. Sub-Art..(1)
provides that in excersing his rights,the usufructuary may not be abusive. As special
emphasis he is duty boud not to alter the thing substantially. The same duty is imposed
upon him in relation to change of purpose. Alteration per se is not prohobited; what is
prohibited is a substantial one. what is substantial alteration? It looks that it depends
upon circumstances; the court will decide on case-by-case basis. Sub-Art..(2) gives the
bare owner supervisory power. He has the right to check whether the usufructuary is
abusing his right or not. Such supervision has to be reasonable.

Art. 1331
Dealt with here is one aspect of civil fruits, which are the result of transactions. A
usufructuary has the right to lease out the thing subject to usufruct. This shows that he
is not duty bound to exercise his right to use personally. He may wish to convert this
right into money. The subject matter of this article may be movables and immovables.
In French law, a usufructuary of a corporeal chattel in general is duty bound not to
lease it; he is expected to use movables personally. He is expected to lease movables
only when they are destined to be leased. Books of a lending library, horses, furniture
for rent, etc. are examples of movables, which may be leased out by him. The
catchwords 'day to day' show that a usufructuary is entitled to rents only during the
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currency of the usufruct. So if the bare owner has delivered the thing before he collects
rents, they belong to him. Conversely, when the usufructuary has restored the thing
before he receives the rent due, they belong to him. For example, if a house subject to
usufruct is leased and if the usufruct terminates within nine months and if the rent is to
be collected yearly, then the usufractuary will be entitled to enjoy the rents
corresponding to nine months. The bare owner will take the rents for the remaining
months. If, on the other hand, the usufructuary has collected the rents at the beginning,
he will be obliged to return the rents of three months.

Art. 1332
In relation to movables, termination of usufruct heralds the termination of the lease.
This is the message of the Amharic version of Sub-article (1). The English version
uses he words "the thing" which could mean movables and immovables. If we stick to
the Amharic version, then the usufructuary cannot assure his lessee possession after
the expiry of the usufruct. Should creation of usufruct terminate lease made by a bare
owner? The answer should be in the affirmative since one of the duties of the bare
owner is to deliver the thing covered by the usufruct. As per Sub-article (2), the bare
owner, and third parties are obliged to respect a lease made by the usufructuary in
connection with immovables. Third parties and the bare owner are to honor such lease
for a period of three years. The period is to be calculated from the date of the
termination of the usufruct. Therefore, lessees of the usufructuary may invoke this
Sub-article. Who are the third parties? They could be mortgagees or purchasers from
the bare owner who are expecting to step into the possession of the movables at the
termination of the encumbrance (usufruct). These third parties may not invoke Sub-
article (2) when the third Sub-article comes to operation. Pursuant to the latter Sub-
article a bare owner may opt for the termination of the usufruct automatically where he
can prove that the usufructuary made the lease in abnormal conditions and in fraud of
his rights. He could show these conditions if the usufructuary leased the immovables at
lower price or some other terms of the lease contract are prejudicial to him. Who is to
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decide on these matters? Should the bare owner terminate the lease unilaterally? Or is
he expected to bring court action?

Art. 1336
The usufructuary may embellish the thing; he may make plantations, clear out fields,
do drainage work, etc. All these are unnecessary expenses unlike major and minor
repairs, which are necessary for the preservation of the thing. Should the usufructuary
be indemnified for expenses relating to improvements? No. The law denies refund
because it wants to suppress contestations that would be bound to arise for the
improvements the usufructuary would claim to have made would not always be self-
evident. Secondly, because a contrary solution would lead to burdening the owner with
restitution that sometimes would be onerous. And they might apply to works that he
would never have taught of executing. The usufructuary has the right to remove any of
the improvements he has made. He might have fixed mirrors or pictures or ornaments
or he might have built buildings or planted plantation. The law entities him to take
away such improvements. He has the option to remove the improvement at the time
when the usufruct expires. Hence, the bare owner has no right to demand the removal
of the improvements during the currency of the usufruct. Yet, in taking such additions,
he is obliged to put the principal thing into its previous condition. In making removal,
he must be cautious not to cause any damage to the thing. Hence sometimes he may
find himself in a precarious condition in the sense that it could be difficult for him to
detach things without causing damage to the main thing. In such circumstances, he
may opt to bring action against the bare owner on the basis of the enrichment without
cause provisions of the code. The reader gives attention to the proviso "unless
otherwise agreed" When there is such contrary agreement between the bare owner
and the usufractuary to the effect that the latter shall be compensated, the usufructuary
could make use of this contractual stipulation. Sub-article one of the Amharic version
does not have such proviso giving the usufructuary the alternative to get compensation.

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Art. 1337
It is an average cost based definition. It is a simple idea. We get the average yearly
income. We also calculate the expenses of the intended repair. If the cost of repair
exceeds the average income, then it is a heavy or considerable repair.

Art. 1338
It is incumbent upon the usufructuary to ascertain the need for heavy repairs and
communicate such fact to the bare owner. He is not duty bound to carry out the repairs
at his own expense. Nor is he obliged to undertake considerable repairs anticipating
that the bare owner will cover the expenses. The spirit of this provision appears to say:
it is strongly advisable to the usufructuary not to carry out heavy repairs if he has in
mind that he would oblige the bare owner to refund the expenses he has incurred. His
duty in this regard is to provide information. His duty to inform does not arise in all
cases of considerable repairs; but only in cases where the considerable repairs are
necessary to preserve the thing. The usufructuary would nevertheless be bound to carry
out heavy repairs at his own cost when he causes them. In other words, the
considerable repairs might be necessitated because of want of ordinary repairs during
the currency of the usufruct or because their cause is his fault or the fault of persons
responsible to him. Under such circumstances, the Usufructuary is to make heavy
repairs. In principle, he is exonerated from making considerable repairs because such
repairs are connected to the capital unlike light repairs that are related to income.

Art. 1339
The usufructuary has no right to oblige the bare owner to make considerable repairs.
We bring to the attention of the reader that the issue of considerable repairs dealt with
under Art.1337-1339 relates to those heavy repairs during the currency of a usufruct.
As to those considerable repairs before or after the creation or extinction of usufruct
are not the focuses of these provisions. In such cases it up to the bare owner to make or
not to make them. Why is the bare owner relieved from making considerable repairs
during the currency of usufruct? One is a simple logic. The logic of the law is: if the
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bare owner may not be obliged to make repairs relating to the period before the
creation of the usufruct, he should not, for a stronger reason, be duty bound to make
repairs in connection to the duration of the usufruct which presuppose use and
enjoyment by the bare owner. Repairs after the creation of usufruct might show the
consequence of enjoyment by the Usufructuary. Secondly considerable repairs, we
said, are linked to the capital, which is owned by the bare owner. As an owner, he has
the power to undertake considerable repairs. Likewise, he has the power not to make
such repairs.

The bare owner might prefer to undertake the heavy repairs. In this case, the
usufructuary is obliged to tolerate. For example, the repairs might temporarily displace
him; so his right to use could be hindered tentatively. To add another illustration: he
could lose rent since the lessee might be forced to vacate. Generally, heavy repairs
could entail personal or financial inconveniences. He must bear them. There is a
corresponding duty of the bare owner not to use his wish to undertake the heavy
repairs to the prejudice of the usufructuary. For instance, he shall carry out the repairs
at a reasonable speed or he shall select appropriate time for the work.

Art. 1340
Generally the material scope of this Article is immovable (see Article 3047(1)).
"Generally" because certain kinds of movables such as ships, aircrafts, business, etc
could also be covered (see Art. 3047(2)). The bare owner might have established the
mortgage prior to the creation of usufruct. He could also do this after the creation of
usufruct; this is clear from Art. 3072 which states that "a mortgage charging bare
ownership of on immovable shall upon the extinction of the usufruct, extend to the full
ownership of such immovable." Incidentally, this stipulation conveys the message that
even if a bare owner could encumber an immovable given on usufruct with mortgage,
the right of the usufructuary may not be affected. For example, the mortgagee may not
attach the immovable and have it sold by auction to transfer full ownership if the
principal debt matures before the extinction of the usufruct. Sub-article (1) relieves the
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usufructuary from being obliged to pay the principal debts. Would he be duty bound to
pay the interest under mortgage contract? Would the last words of Art. 1313 be of any
help in attempting this question? Would it be sound if one argued that the usufructuary
is exonerated from paying the interest on the principal too because the word 'debts'
also includes interests, for we cannot separate the principal debt from the interest it
bears?

Sub-article (2) envisages the situation where the usufructuary may be forced to pay the
principal debts under mortgage. In this case, he is given the right to require the bare
owner to make reimbursement. What are the conditions under which the usufructuary
may be obliged to settle the debt? One circumstance may be that the mortgage was
duly established before the constitution of the usufruct. "Duly" to mean the mortgage
contract was made in writing and was registered prior to the registration of the usufruct
established subsequently. In that case, the mortgagee would be entitled to attach and
have the immovable sold with the view to transferring full ownership-not merely bare
ownership-if the mortgagor could not settle the debts upon their maturity. One gathers
a second situation from Art. 3089. According to this provision, mortgagees could also
attach the immovable and have it sold for the purpose of transferring full ownership
even if the such mortgage was created after the creation of the usufruct. The critical
test is when is the mortgage registered. When is the usufruct registered? The
legislature is very straightforward in this regard. Art. 3089(1) provides that "Registered
rights in rem on an immovable (e.g. usufruct, another mortgage, servitude, co-
habitation, etc) shall not affect the mortgagee where such rights have been registered
after the mortgagee has registered his mortgage [emphasis added]. The lawmaker
goes on further and makes the consequence of this Sub-article very plain when Art.
3089(2) states that the mortgagee may cause the immovable to be sold as though such
rights had not been created [emphasis added]. The implication of these two Sub-
articles is that the right of the usufructuary who has registered his right prior to the
registration of the mortgage may not be affected. In fact such mortgage would not be
considered as though if did not exist despite the fact that such mortgage was created
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before the establishment of the usufruct. Therefore Art. 3089 indirectly warns the
usufructuary.

Art. 1341
Sub-article (1) reads: "The usufructuary may claim the thing to which the usufruct
extends". This envisages the following circumstances. One is the case where the
creditors of the bare owner proceed to attach the thing subject to usufruct; he may
argue that his right is registered first in case of secured creditors or he may argue that
purchasers at auction would merely step in the position of the bare owner in relation to
unsecured creditors of the bare owner. The other situation is that the usufructuary may
complain that he has interest in the movable subject to requisition. In relation to
expropriation proceeding, too, the usufructuary could present himself as an interested
person. So is the case where the bare owner and he himself have taken out insurance
policy and the risk covered has materialized. In second third and fourth situations, the
interest of the Usufructuary is on the compensation to be paid by the public authorities
and insurers; the subject matter of his right would transform from an object to award.
Any way if dispute arose in connection with requisition, expropriation or insurance
indemnity, the usufructuary would be an interested party and he might claim to be a
party.

The second Sub-article is the logical consequence of Art. 1311. The latter lists the
rights of the usufructuary: the right to use, collect fruits, manage the thing and
consequently to enter possession. The last right would be meaningful only if the
usufructuary had the right to bring possessory action. This possessory action may be
brought against third parties that have made interference in the peaceful enjoyment of
the thing by the usufructuary or even against the bare owner or his agent or his heirs. It
would be superfluous to state that the expenses of the proceedings under both Sub-
articles are to be borne by the usufructuary.

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Art. 1342
It is concerned with those proceedings, which have bearing upon the title of the bare
owner. The latter's co-heirs or some other persons might contradict his title or
neighbors might raise boundary disputes or third parties might wish to enjoy servitude
on the property subject to usufruct. Or the controversy could relate to the extent of
right of way, right to view, etc. The code imposes duty upon the usufructuary in all
cases where title comes to question: the duty is that of communication; the
usufructuary shall bring such facts to the attention of the bare owner since the former
is in touch with the thing and since the latter is expected to know the type of defenses
to be invoked against third parties claiming title or interest in the thing subject to
usufruct. Failure in his duty to make communication would result in liability. The law
considers the damage resulting from lack of communication as though the
usufructuary himself (personally) caused them.

Arts. 1343 and 1344
Points need to be mentioned have already been dealt within relation to Arts. 1319,
1317(2) and 1322(1)

Art. 1345
It is a special provision; it focuses upon usufruct on universality of things, more
specifically usufruct of flock. The right of the usufructuary extends to each and every
individual thing constituting the total flock. If the flock is cattle, then the usufructuary
will have the right to enjoy ownership right over the manure, milk, and their breeding.
Supposing that the flock is killed totally because of disease or accident and supposing
that the usufructuary has not committed any fault, then his only duty is to return the
hides of the animals lost or the value of the hides. Sub-article (1) does not make any
reference to the extent of loss of the animals. Yet the fact that Sub-article one refers to
total loss is implied from Sub-article two of the English version. The Amharic version
patently puts: "be'alaba ye'tesetewen men'ga" Pursuant to the Amharic version of
the second Sub-article, the usufructuary is duty bound to replace the animals lost -
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because of accident or disease- to the extent of breeding from the remaining animals.
On the other hand, the corresponding English version appears to state that the
usufructuary is obliged to replace all of the animals lost out of the breeding from the
remaining animals. To illustrate if the usufruct extends to 100 hens, and because of
disease or accident 90 of them are dead or destroyed, then pursuant to the English
version, he is obliged to replace them out of breeding from the remaining hens. On the
contrary, as mentioned above, the Amharic version obliges him to replace the lost
animals to the extent of the breeding.

Art. 1346
Does Sub-article one preclude the bare owner from bringing action against the
usufructuary during the currency of the usufruct? Why does the law tend to shorten the
period of limitation? Does this Sub-article have any relation to Art.1330 and 1318? Is
this period of limitation absolute or relative? Does it have any connection with
Arts.1845-1856 of the Code? Does Art. 1346(2) have any relation with Art.1336(3)?
What does the word "installation" mean? Is the Amharic version of Sub-article two
clear? Can the usufructuary require the bare owner to repay him the loans he has
extended by the operation of Art. 1315(2) within one year from the termination of
usufruct under the pain of losing his right?

Art. 1347
The following suggestive questions may be posed in relation to Arts.1347-1352. What
distinguishes Arts. 1347- 1352 from Art. 1325-1346? Do the former articles give lesser
rights to the usufructuary than the latter provisions? Does the essential difference lies in
the subject matter of the usufruct? Can we say that the provisions under consideration
regulate usufruct proper? Do Arts. 1347-1352 have relation with Art.1309 of the Code?
Is the use of the word 'rights' in the title of Section Three appropriate? Do we have such
things as 'corporeal rights'?
What constitutes income under Art. 1347? Does the word credit mean loan or debt ?
Does the phrase '.. incorporeal thing...' mean copyright, patent trademark industrial design
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and trade secret? Is the word 'interest' related to 'credit' or debt? Is the word arrears
related to annuity? Does the word 'dividends' have connection with profits in a business
organization? What is dividend? When is the usufructuary entitled to collect dividends
interests and arrears? Why is it necessary to have a time reference?

Art. 1348
Is the title of Art. 1348 correct? Is the phrase 'Exceptional Fruits' proper? Why does the
law deny the usufructuary of exceptional fruits? What if the exceptional fruit is secured
during the currency of the usufruct? What is the meaning of exceptional profits? Can we
consider division of reserves other than legal reserves in a given share company as an
exceptional fruit? Why does the law gives the usufructuary the right to collect fruits of
the exceptional profits?

Art. 1349
What is a preferential right of subscription? Is this a reference to one of the rights of
shareholders in a share company? Why does the law deny the usufructuary of the right to
replace the shareholder in subscribing to new shares? Supposing that the shareholder
bare/owner subscribed for the new share the usufruct is to extend to such share, that is,
the amount of the subject matter of the usufruct will show increment. In case where the
shareholder-bare owner sold out his subscription right the usufruct also extends to the
proceeds of such sale.

Art. 1350
Is Art. 1350 referring to the case where the subject matter of usufruct is a credit? What
does the term 'satisfied' or 'discharged' mean? What would be the legal consequence if
the debt were discharged before the expiry of the usufruct? Would it have the effect of
terminating the usufruct? Suppose there is a contrary agreement to the effect that
principal be paid to the usufructuary In the absence of authorization of payment to the
Usufructuary by the bare owner, what step should the third party-debtor take? Where is
the third party supposed to deposit the capital? Supposing that the date of the discharge
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of the credit is mature and supposing that the period of the usufruct is still running, is the
usufructuary entitled to compel the third party to deposit such debt?

Art. 1351
What is annuity under Art. 1351? What are the types of annuity? Why is the
usufructuary of annuity relieved from liability to compensate? Is there any difference
between the Amharic and the English versions of this article?
Art. 1352
What does the term 'securities' mean under this article? Does it mean transferable
securities? Who is to cover the cost of issuing a title deed to the Usufructuary or bare
owner by the institution issuing the securities ? Why the word 'creditor'? To which
establishments this article is referring? Why does this article exclude bank notes?

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6. Right of Occupation of Premises.

The Right of Occupation of premises is treated by the Ethiopian Civil Code under a
separate section since it manifests special features though it is a species of usufruct. The
special features, which make this right distinct from usufruct, are:

a) Right of occupation of premises seems to be given only to physical persons, thus
juristic persons are excluded. In the case of usufruct, any person may be a beneficiary.
This looks, to be clear from Art. 1354.

b) The beneficiary of the right of occupation of premises is expected to enjoy the
right personally; he is not to lease it or let other persons occupy it. The usufructuary is
not duty bound to use the thing covered by the usufruct personally.

c) The object of right of occupation of premises is limited only to houses or
buildings whereas in the case of usufruct it may be movables, immovables and intangible
things.

d) The right available to the beneficiary of a right of occupation of premises is only
the right to use.

e) The Usufructuary is duty bound to make ordinary repairs and bear the expenses
thereto. In the case of the beneficiary of the right to occupy premises, he is not expected
to bear expenses of ordinary maintenance under certain situations. (see Art. 1356(2)
f) The Right of occupation of premises may not be assigned either freely or for
consideration. Nor can the right be inherited (Art. 1357). There is no express provision,
which precludes a usufructuary from transferring his rights. On the contrary, one may
understand from Art. 1318(1) and Arts. 1386, 1398(1) and 1407(1) that usufruct may be
assigned for consideration.

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g) Compare them in relation to the number of persons that may live with the
beneficiary on the one hand and with the usufructuary on the other.

Art. 1353
Right of occupation of premises is defined as the right to live in a part. or whole of a
given house. It is a real right; this can be deduced from "Title VIII Joint ownership,
Usufruct and Other Rights in Rem". Though clear from the wording, Art. 1353, the
definitional article should have pointed the idea that only human persons enjoy this right.

Art. 1354
This specifies the persons who may live with the beneficiary. Assuming that the
beneficiary of right of occupation is the wife, then the people who may live with her are:
the husband her direct descendants, her ascendants and servants. Thus excluded are the
ascendants of the husband the previous, marriage, if any, his children from previous
marriage, if any, and collaterals of the two. The number of people allowed to live or
excluded from living in the house may decrease or increase as a result of an agreement
concluded between the beneficiary and the grantor.

Art. 1355
Where the right relates to one wing of a flat or a part of a flat or one or more rooms of a
house, the beneficiary is entitled to enjoy all the facilities planned for common use. Such
facilities perhaps include telephone, electricity, water, sewerage, gas lines, etc. This
approach is economical since to require the beneficiary to install additional installation
would be a waste. The phrase "installations intended for common use" should be
understood to mean: Was this or that installation originally planned to serve the room or
the flat subject to the right of occupation of premises? Obviously, the case where the
whole house or building is occupied by the beneficiary alone need not be regulated.

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Art. 1356
The cost of ordinary repair is to be borne by the beneficiary if a house or flat is being used
by him alone. The term 'ordinary repairs' should be understood to mean a repair which
entails an expense equal to or less than the average yearly income that would have been
derived from the house or flat or room had it been leased (see Art. 1337 cum Art. 1358).
Where the object of right of occupation of premises is occupied by the beneficiary the
grantor together, the latter shall bear the expenses of ordinary maintenance.

Art. 1358
The provisions of sections, 2 and 3 of chapter 2 entitled " Usufruct" are to be
applicable, with necessary changes, to the other issues left unaddressed. Some of
the issues left out by this section are creation and extinction of usufruct and duties
of the beneficiary.

REVIEW QUESTIONS
1. Distinguish:
a) usufruct from lease,
b) '' '' sevitude,
c) '' '' antichresis,
d) '' '' habitation,
e) '' '' entail.
2. Idintify the disparity between the two versions of Art. 1315.
3. There looks to be a discrepancy between the two versions of section two entitled
"special rules regarding usufruct of corporeal goods".Explain such disparity.
4. Discuss exhaustively the similarity and the difference between the right to use land
in Ethiopia and usufruct as incorporated in the Civil Code.
5. Can a usufruct creat another usufruct? Which Article may be argued to justify the
creation of usufruct on usufruct?
6. Could a usufruct be created for consideration? Which provisions of the Code may
be used to support the establishment of usufruct for consideration?
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7. Can there be a joint ownership of usufurct? Base your answer on the relvant
provision of the Civil Code.
8. Can creditors of a usufructuary attach a usufruct being enjoyed by the latter?
9. Can we say a bare owner and a usufructrary are joint owners of a thing subject to
usufruct? If so why? It not why not?
10. Do you think that a usufructuary will be obliged to keep up a contract of insurance
concluded by the owner?
11. Assuming that he has such obligation, what would be the fate of the compensation
paid by the insurer in the course of the usufruct?
12. Should debt incurred by the bare owner before the creation of usufruct be
considered as exrta-ordinary charge?
13. When must a bare owner repay if a usufructuary has advanced money without
interest as per Art.1315(2) for the purpose of settling unforeseen charges?
14. To what extent bare owner may sell things subject to usufruct if the usufructuary
has refused to advance money to cover extra-ordinary charges?
15. Government X is at war with state Y; the latter occupied or invaded some of the
teritory of the former. The invader started charging peasants in the occupied
territory Birr 5 per cattle as a compulsory war contribution. W/ro B is living in the
invaded territory and is compelled to pay Birr 30 since she has 6 camels; she is
enjoying the fruits and labour of the camels as a usufructuary. Could she compel
the owner , Ato C, to cover the 30 Birr charged by the enemy state?
16. What do we mean by the word "charge" in Arts. 1313 and 1314(1)?
17. All repairs short of considerable repairs are to be covered by the usufructuary. Is
this proposition valid? Why?
18. The effect of a radical and permanent change of srounding condition has brought
about a physical change in the use of the building given on usufruct. Would this be
tantamount to abuse of right by the usufructuary?
19. The result of substantial change by the usufructuary brings about great increase in
the economic value of the thing. Would the usufructuary be entitled to be
refunded?
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20. Does the bare owner have the right to bring a siut against the ususfructuary before
the extinction of the usufruct complaining that the latter has not complied with his
obligation?
21. Ato A has given his car to his brother, Ato B, until the latter's child,Y,attains the
age of 16. Will the usufruct tereminate supposing that the child dies before the age
of 16?
22. What are the possible reasons that may be put forward in exonerating a bare owner
from making considerable repairs?
23. Would your answer to question no.21 differ if the income from the car were
supposed to cover the expenses necessary for the support or education of Ato B's
child?
24. What are the grounds for the extinction of quasi-usufruct?
25. The sole facts that a usufructuary and a bare owner have listed the
number,specified the qualities and determined the prices of the things covered by a
usufruct do not suggest that the former is the owner of such things. Is this a
warrantable assertion under Etiopian law of usufruct?
26. Should the usufructuary be entitled to the ruins of the thing that may subsist ( e.g
hides and skins of dead animals, soil and material of a biulding that has collapsed
bacause of old age or burnt down)?
27. Does an owner under Ethiopian law have the right to create successive usufructs
on a given property without breaking the rule that makes usufruct a life estate?
28. Point out and discuss the merits and demerits of usufruct.
29. W/ro Xhas given her biulding on the basis of usufruct to Y for 10 years. 5 years
after the commencement of the usufruct, the biulding was expropriated and Birr
300,000.00 expropriation award was ready to be paid to W/ro X. Would Y have
the right to object payment to W/ro X? Assuming that the award is to be paid to
Y,would W/ro X be able to require Y to furnish security? Suppose Ato Y has been
dispensed from furnishing security in the agreement creating the usufruct? Would
the woman be precluded by such stipulation from requiring security?
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30. W/ro X has given her car to Ato Y until the latter wins a llottery prize exeeding
Birr 10,000.00. three years after the creation of such usufruct ,he won a lottery
prize Birr 15,000.00. W/ro X claimed the restitution of the car. Should the usufruct
come to an end? Which provision may support your answer?
31. There is no need to restitute and settle accounts in cases where usufruct comes to
an end through usucaption acquired by third party and consolidation. Do youn
agree? Why?
32. Avioding onerous restitution and the consideration that the improvements might
be used to replace the damage a usufructuary might have suffered are the possible
grounds for precluding the usufructuary from getting any indeminity for the
improvements he might have made on the thing. Do you agree? Why?
33. Sould the usufructuary be entitled to compensation if he carried out major repairs?
34. If your answer to question no.33 is yes, then should the usufructuary pay all the
expenses of heavy repairs reckoned at the time of repair or to the extent of the
improvemnts at the date of restitution?
35. What is the material scope of usufruct?
36. Does Ethiopian law recognize quasi-usufruct?
37. What are the rights to be enjoyed by the usufructuary other than usus and fructus?
38. What rights does usufruct give birth to?
39. W/ro P is a usufructuary while W/rt Q is a bare owner. The latter thinks that she
may not effect delivery before inventory is carried out. On the other hand, W/rt Q
argues that W/ro P has to deliver the thing she has given on usufruct first since
inventory could be made at any time. Rule on their dispute.
40. Suppose in the question no.39 W/ro P has made security as to a precondition for
delivery. Would such argument be sustainable?
41. W/ro S is a usufructuary of a certain building owned by Ato T. She has mortgaged
the biulding. She has also leased it. Ato T objects to these transactions made by
W/ro S. Is the objection legal?
42. W/ro A in her testament has stipulated that her car should go to Ato B on the basis
of usufruct for 5 years, while Ato C should be the bare owner. On the date of the
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opening of the succession, the usufructuary argued that the bare owner (Ato C) shll
repair the car since it was damaged by accident. Is this claim valid?
43. Should the creation of right of occupation of premises be made in writing and get
registered?
44. May one argue from Art. 1357 that usufruct may be created for consideration?
45. There are sufficient reasons to treat the right of occupation of premises under a
separate section. Argue for or against this statement.
46.If usufruct is related to the person of a usufructuary, right of occupation of premises is
very much linked to the beneficiary. Do you support this proposition? Why?
47. How one must define ordinary maintenance in Art. 1356?

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7. Servitude.
Notes Mainly Based on Arts. 1359-1384, 1227,1214-1215, 1220-1224, and 1246 of
the Ethiopian Civil Code.

1. Servitude shows the readiness manifested by neighbors to help one another, their
attitude of mutual accommodation and tolerance; it also indicates a craving for
order in daily life. Behind it is the desire to use resources efficiently. It facilitates
the exploitation of lands and the proper utilization of buildings. It is precisely
because of these merits that the Romans invented the concept. As to its demerit,
servitude tends to hinder the smooth circulation of immovables since ascertain
immovable may at the same time be charged with several servitude's (e.g. right of
way, to take away water, to pasture, to view, etc.) and since purchasers could be
reluctant to buy it.

2. Servitude is a real right. As such it is enforceable against persons generally. The
other features of right in ream will naturally follow from this.

3. Servitude is an immovable by the object to which it applies; it is a right connected
to immovables.

4. Servitude presupposes the existence of immovables. Excluded are thus movables
and incorporate things. Though it can exist on land and buildings, servitude is
essentially and originally limited to land. The tract of land getting benefit from
another plot is called the dominant tenement or dominant estate. The plot giving
service to the dominant land is called servient estate or servient tenement.

5. Servitude assumes the existence of two or more plots belonging to two or more
persons. Hence the maxim: Nem ni res sua servit, meaning no property could
impose servitude upon itself.

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6. Servitude does not always presuppose that the two plots are contiguous or adjacent.
There may be a servitude imposed upon a certain plot in favor of another plot
though the two are separated by considerable distance. Such may happen in the
case of right to draw water or pasture or to collect wood, view, etc.

7. Servitude is a charge or encumbrance. It is a limitation of the ownership of the
servient estate and is an addition to and an attribute to that of the dominant land
since servitude reduces the prerogative of the owner of a servient tenement; he is
not any more a sovereign as regards his immovable. He has to tolerate or allow
certain acts of using by the owner of the dominant tenement or abstain from doing
certain thing, which he could naturally have done on his immovable. If the
servitude is, for example, the right of passage, then he has to allocate a strip of
land; if it is the right of view, he has to refrain from undertaking constructions,
which will block the view.

8. The fundamental limitation of servitude is: it must be advantageous to the
dominant tenement. There could not be servitude in gross. The words "for the
benefit of the dominant tenement' convey two meanings. Firstly, it is the
prohibition of the creation of servitude which does not serve the dominant
tenement or one which by its nature offers no advantage for the exploitation and
use of the dominant tenement. Secondly, it also means servitude may not be
imposed on or in favor of a person; an obligation to perform personal services
could not be made the subject matter of servitude, but only of a contractual
arrangement. Why this rule? The justification for this rule lies in the desire to
facilitate the free circulation of property since there would be less real
encumbrances. Another rationale is that the obligation to perform personal service
amounts to enslaving the owner of the servient tenement; it assumes the inferior
personal status of the owner of the servient tenements. It may result in such a
strange demand once happened: " the right of the lords to demand that their
tenants come at night and thrash the ponds in order to prevent the frogs from
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disturbing their slumbers" The law aims at reversing the old maxim: "every
inheritance is burdened with servitude, the freedom of a piece of land is an
accident." In its place the law wants to promote: " every inheritance is free and
exempt from servitude"

9. There is an exception to the rule that servitude may not be imposed on the owner of
the servient tenement; an obligation can be imposed on the owner of the servient
tenement to carry out a positive act provided the act is not the main object of the
servitude but is only accessory to the main object. It must form part of the content
of the servitude. An obligation to do may accompany servitude as an accessory to
its principal object. An example is when the owner of the servient tenement
undertakes to fence in or to keep in order the road way on which servitude of
passage exists. Here the obligation is an accessory of the servitude, and is a real
charge on the servient land and on its owner whoever he may be. But he may
always free himself from this obligation by the abandonment of the servient l and,
either partly or totally.

10. If it happens that a 'servitude' is imposed upon a person, then the assumption is
that it is a mere obligation and as such it will be temporal and cannot follow the
land. In fact, if there is a covenant between owners of two plots and if its
provision are open to interpretation, then a court is duty bound to construe such
doubtful provisions as imposing a mere personal obligation, not a servitude.

11. The servitude should benefit the land and not a person. Yet rights necessarily
benefit a holder, not things. If this proposition is pushed further, then it means
servitude always benefit the owner of dominant tenement. The statement:
"servitude should benefit the land and not a person," means there has to be a
natural relationship between the object of the servitude and the use of the
dominant estate; the latter has to be linked to the servient estate. Here are two
applications of this rule. The right to walk on! to gather fruits or flowers upon the
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lands of another cannot be construed as servitude, but merely as a right of use.
The beneficiary of this right could get all the advantages even if he were the owner
of no immovable. Second, the right to take clay from neighboring lands may be
considered to be a servitude subject to the condition of the clay before the service
of the land if it is customary in that place to sell fruits and wine in clay vases. But
a potter who could require clay for the manufacture of vases made for sale could
acquire such a right only as a usufruct not as a servitude. Some writers consider
the right of hunting as servitude if the dominant estate is a hunting ground, isolated
in a forest or in a district abounding in game.

12. The word 'benefit' or 'service' denotes the various advantages the dominant estate
may derive from the servient tenement. Light, view, passage, pasture, wood
collecting, drawing water from a well or spring, not building beyond a certain
height or width, building with certain distance off the street line, not bundling a all,
etc. are some instances covered by such word. The service to be given to the
dominant tenement has to be specified and the service so specified should not be
expanded because of new needs of the dominant tenement.

13. Servitudes are considered as accessory rights of the dominant tenement, that is,
pass with its transfer. Similarly the transfer of the servient tenement amounts to
the transfer of the burden imposed on it. If either of the two estate is mortgaged,
then the mortgagee must also assume that the charge will follow his security. The
usufructuary has to suffer or benefit from a servitude.

14. Since servitude is an accessory right; it cannot be separately assigned or auctioned.
The only exception to this may be the case of surface they could be transferred or
mortgaged independently of the servient tenement.

15. Servitude is an indivisible right inherent in the dominant tenement and in every
portion of it so that if this land should come to be divided the servitude remains due
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to each portion, without, however, the condition of the servient tenement being made
worse. Seen from another aspect, a servitude is a charge touching each and every
atom of the servient tenement. So if the servient estate is divided, the resulting units
must suffer the servitude.

16. A servitude carries with it rights necessary for its use; without, it we would have a
nominal servitude. For example, the right to draw water must imply the right of
passage. In this case, the right to passage is a sin qua non for the enjoyment of the
right to passage. The servitude of aqueduct carries with it the right to pass by its
margin. This right exists simply by virtue of the principal servitude: they must
disappear upon the termination of the main servitude.

17. By its nature, servitude is perpetual. It is a perpetual attachment to one and a
permanent burden on the other. Though this perpetuality is of its nature, it may in the
case of conventional servitude be stipulated for a term of years or until some event
happens or be limited to certain days or to certain hours or by other conditions.
Moreover, there are causes terminating them.

18. The owner of the servient tenement can no more free his plot from the encumbrance
by the offer of an indemnity to the owner of the dominant land; he must suffer the
servitude. An exception is the case of redemption of servitudes where the owner of
the land charged with servitude is required to show a stringent condition(s)

19. Servitude is different from a mere obligation. The former assumes two plots owned
by two persons; it binds subsequent owners; it is generally perpetual. Mere obligation
is a right in personam. One of the parties need not be owner of an immovable; only
those who have accepted its terms would be bound by it; it may entail positive act; it
is temporary for it can be extinguished through performance.

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20. Servitude shares some features with usufruct. Both are rights in rem. Their main
subject matter may not be the performance of a positive act; it is essentially the duty
to abstain. They are real charges, which weigh successively upon all the owners of
the burdened land, regardless of who they are.

21. Servitude is distinct from usufruct. The latter may have as its object movables and
immovables; it benefits a person (usufructuary); it is temporary and can be assigned
independently.

22. Obviously, servitude is different from ownership. Ownership may exist for the
benefit of an owner; servitude for the benefit of another plot ownership could have as
its subject matter movables; whereas movables and incorporeal thing could not be the
object of servitude. Ownership can be independently assigned or attached while this
is not the case in relation to servitude.

23. On the basis of their origin, servitude could be divided into three. Natural servitude
owes its origin to the natural or geographical lay of the dominant and servient
tenement. For example, the obligation of the owner of a lower piece of land to
receive the water, which naturally percolates from the higher piece of land. To add
another example: boundary marks and fences: The law simply gives recognition to
such type of servitude. For its existence, no formalities are required (that is, written
form and registration). Legal servitude owes its birth to law; the law creates it for
public purposes. An example is the right of an owner of an enclaved land or whose
outlet to highways is insufficient to get out let (access). So is the installation of
facilities such electric, water telephone and gas lines. For a legal servitude to exist
one need not have observed the formalities of registration and written form. Even the
parties may not waive them pursuant to an agreement. The third is conventional
(juridical) servitude. Juridical because it may emerge from a bilateral or unilateral
act. By unilateral act we mean testament. In order to have effect even upon the
parties to conventional servitude, it has to be made in writing. Registration is a pre-
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condition to invoke a conventional servitude against third parties who purchase either
the dominant tenement or servient tenement.

24. On the basis of their mode of exercises, there are three kinds of servitude. The first is
apparent and non-apparent. Apparent servitude is a type of servitude manifested by
visible works (e.g. windows, doors or channel or pipes above ground) (aqueduct). By
the latter means a servitude having no external manifestations such as a servitude not
to build or not to build to a certain height. The legal effect of such distinction is that
only apparent servitude could be acquired through usucaption. Once an apparent
servitude is acquired through enjoyment for ten years, it must be registered in order to
have effect on third parties. It is advisable to have it registered in order to have
effect as between the parties even if this seems to be not a requirement. The second
type is continuous versus discontinuous servitudes. The former refers to a servitude
requiring no human intervention or activity for them to function. Examples are pipes
of water, sewerage and servitude not to build or not to build beyond a certain height.
Non-continuous servitude relates to those, which demand current human act for their
exercise. Rights of way, drawing water, grazing and extracting materials from earth
(the right to dig for gravel or to cut turf). The third type is negative versus positive
servitudes. Negative servitudes assume drawing benefits from abstention imposed
upon another's immovable. Here the owner of the servient tenement is duty bound
not to carry out certain activities inherent in ownership. An example is a servitude
not to build beyond a certain height or not to build at all. Positive servitudes, on the
other hand, entail incursion into the land of another. The owner of the dominant
tenement is given the right to carry out certain activities over the servient estate,
which could be tantamount to interference in the rights of the owner of the latter.
Right of way and right of drawing water are illustration of positive servitude.

25. There are various reasons for the extinction of servitude. These are: destruction of
one or both estates, prescription, division of the dominant tenement or servient
tenement, though not always, may lead to the partial extinction of servitude,
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consolidation (confusion), abandonment of the estate that owes it (servient tenement),
express renunciation followed by cancellation from register of immovables, term or
condition, redemption, and non-use for ten years.

Review Questions
1. There is a stream in Ato R's land. Ato P has been taking water for domestic
consumption for a long period of time. Currently, Ato R has sold his land to Ato
Q. The purchaser then precluded Ato P from using the stream. May Ato P
institute a case against Ato Q?
2. Ato R built a dwelling house in front of Lake Awassa in 1984. In 1989, he
converted the house into hotel since the view of the Lake gives an excellent
scenery to his customers. Ato Q has a large plot of land located between Ato R's
bar and the lake. And now Ato Q has planned to construct a ten-story building
and open a recreational center. If Ato Q constructed the intended building it
would completely block the view now being enjoined by Ato R. What would be
the out come if Ato R filed a suit against Ato Q?
3. For 20 years, Ato R has been collecting firewood from the nearby forest, which
belongs to Ato Q. A couple of month ago, Ato Q said to Ato R: " you may keep
on collecting fire wood from my forest land, but you cannot traverse on my farm
land." Give your legal advice to Ato R.
4. Ato Gonfa has been traversing on Ato Gorfu's plot of land for 20 years. Recently
the former has installed flourmill. Yet since he found the passage too narrow for
his truck used for transporting grain to the mill, he has requested Ato A with the
view to increasing the width of the passage. Upon this request the owner has
refused to do so. Now Ato Gonfa wishes to institute a case demanding the
increase of the width of the passage. Do you think he will succeed? Why? Why
not?
5. Ato Gonfa has constructed a building along a bordering plot belonging to Ato
Gorfu. All the windows of this house are facing Ato Gorfu's field. He had been
enjoying light through these windows from 1972 - 1986. In 1987, he changed the
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windows along the other side of the house. He had been getting light through
these new windows since then up to 1998. In 1999, Ato Gonfa re-opened the
previous windows and started getting light. Ato Gorfu however started a six-story
building, which would prevent sun rays being enjoyed by Ato Gonfa-reaching his
house. The latter wants to oppose the construction embarked by his neighbor.
What could you advice to Ato Gonfa? 1381(3)
6. Discuss the essential nature of servitude as incorporated in our Civil Code.
7. List the various modes of creating servitude.
8. Under Ethiopian law, a servitude having its principal objective as an obligation to
do may be created. Argue for or against this proposition?
9. Under Ethiopia law, a servitude must be made in writing and registered regardless
of the way in which it is created. Is this a warrantable assertion? Why?
10. Enumerate and explain the various ways of extinguishing servitude.
11. What do we mean by redemption of servitude?
12. What are the duties of the servient and dominant tenement?
13. Explain the full implication of Art. 1361 of the Code:
14. What does the phrase " servitude exist for the benefit of another immovable"
mean?
15. The Ethiopian law of servitude seems to have accepted the principle that "every
immovable is free and exempt from servitude" Argue for or against this
proposition.
16. Can we conclude that servitude is legal or conventional imposition upon
ownership?
17. Can we say that Arts. 1220 to 1224 are recognition of legal servitude?
18. Art. 1246 is a natural servitude. Do you agree? Why?
19. Given the nature of right Ethiopian citizens do currently have on land and given
servitude is connected to immovables, the Ethiopian law of servitude is rendered
useless. Is this a warrantable conclusion? Why?
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20. If Arts.1220 to 1224 are recognition of legal servitude, then why does the
legislature prefer to put them in "Chapter 2 Rights and Duties of Owner" in stead
of Chapter 3 dealing with servitude?
21. Would a usufructury be entitled to benefit from a servitude charged upon a
neighboring plot?
22. Would an owner of a servient tenement be entitled to terminate the servitude with
compensation?
23. What is the distinction between apparent and non-apparent servitude?
24. Make a distinction between continues and discontinuous servitude. Give
examples.
25. What do we mean by the " indivisibility " of servitude?
26. Servitude helps society use its resources (immobables) efficiently. Is this
assertion sound?
27. W/ro Q and W/ro P are owners of plots of land. According to an agreement
entered between the two, the latter is to extract 50 cubic meter gravel from the
former's land monthly. The contract is to last for 5 years, after which it will lapse.
W/ro P is arguing that she has created servitude on W/ro Q's land. Is her claim
supportable by law? Suppose the contract lasted for 20 years. Will this make a
difference?
28. W/rt C and W./rt B are owners of adjoining plots. The two orally agreed to the
effect that the latter would traverse on the former's plot three years ago. W/rt C
argue that since the contract relating to the right of way being enjoyed by W/rt B
has not been made in writing it is invalid; the servitude shall be of no effect. Is
this a sound argument? Would it make a difference if the servitude was created
13 years ago?
29. W/ro U has transferred her plot to W/rt V. Ato B's land is a servient tenement for
W/ro U's plots now transferred. Ato B argues that the servitude shall terminate
since W/ro U has not informed him of the transaction between her and W/rt V.
Does this argument have a legal backing? Why?
30. Is a person acquiring servitude under Art. 1366 expected to pay tax?
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31. What is the relation between Art. 3366(2) and Art. 1368?
32. Dr.F is the owner of a dominant tenement while Colonel B is the owner of a
servient plot. The Colonel sold the plot to Ato K. The latter argues that he will
not be bound by the servitude since it has been created between Dr.F and the
seller (Colonel B). Would his argument be sustainable? Why?
33. Suppose in question no.32 the Colonel has given his plot to Ato K on usufruct in
stead of transfer and suppose Ato K argues that he will not be bound, as a
usufructuary, by the servitude. Decide on the sustainability of such argument.
34. Compare Art. 1371 with Art. 1221 of the Code.
35 W/ro O owns a large fishing pond. Thirty years ago, she concluded an agreement
with 15 people living in her locality. Pursuant to such contract, the 15 people
were to give half of the catch to the woman. Since then these people have been
exploiting the pond according to the agreement. Currently, however, the woman
has insisted that the people should pay annual fees in stead of payment in kind.
Was there a servitude? Would the question: " Do the members of the community
benefiting from the pond have lands?" be relevant? Would the further question:
" if they have plots, is the fishing necessary for the effective exploitation of their
land?" be pertinent too?
36. The message of Arts. 1370 and 1376 is that " no change in the character of use of
dominant tenement is to be permitted: nor are to be allowed a change in the type
of vehicles travelling a right of way and an increase in the volume of traffic which
either does or does not diminish the enjoyment of the servient tenement." Is this
preposition valid? Why?
37. " The owner of the dominant tenement, in making on the servient estate the
necessary works for the use and preservation of the servitude, cannot alter it, nor
make it more burdensome." Is this proposition sound? Why?
38. Ato Obang has a plot of land. He produces sugar cane. He has, by virtue of a
contract, the right to construct railroad over seven meters width of land. Ato
Obang has concluded a contract with a company , which processes canes into
sugar and buys the cane produced by Ato Obang and transports such canes to its
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factory. Ato Obang has started to buy sugar canes from other growers to satisfy
the high demand of his client company. Ato A objected to the delivery of cane
grown from other plots over his land. The court to which the dispute between Ato
Obang and Ato A decided that:" What is prohibited is the defendant, in extending
or in repairing the road should occupy a greater area of land of servient tenement
or deposit excavations or building materials outside of the area of 7 meters,
because in the first case servient tenement will be altered, and in the second it
would become more burdensome. The defendant (Ato A) cannot prohibit the
plaintiff (Ato Obang) from transporting in the wagons passing on the rail road
other cane than that of the plaintiff."
39. Do you agree with the position of the court? Why?
40. The servitude envisaged by Arts. 1214 and 1215 is unique in the sense that it can
be independently transferred unlike the servitude provided for by Arts. 1359ff.
Argue for or against this statement.
41. Compare servitude with usufruct.
42. Distinguish servitude from usufruct.
43. Distinguish servitude from obligation under a contract (right in personam)
44. Under Art. 1366 of the Civil Code an apparent servitude could be acquired
through prescription. Since this article uses the word 'acquisition' and since
servitude is an immovable right, this type of servitude could not be acquired if no
tax for 10 consecutive years has not been paid and if the possession of it has
vices. Furthermore, this article requires that the servitude must be continuous.
Do you agree with those assertions? Why?
45. Why should confusion be one of the grounds for the extinction of servitude?
46. A and B were the respective owners of adjoining tracts of land B's land bordered
on a lake and he granted to A a servitude of way over a described portion of his
land to enable A to reach the lake. The grant was to A, his heirs and assigns for
the purpose of passing to the lake from A's land and from the lake to A's land, A
has now divided his land into fifty small building lots and is advertising them for
sale stating that each will have access to and from the lake over the right of way
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on B's l and. B seeks an injunction to prevent purchasers of these lots from using
the right of way. What factors are pertinent in either allowing or disallowing the
injunction?
47. Relate Arts. 1366 and 1368 to Art. 1366 (2) of our Civil Code.
48. Relate Arts. 1379 and 1373 with Art. 1359(1) of the Code.

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8. Right of Recovery
To reproduce the definitional provision word by word: "The right of recovery is the right
of a person to recover against payment a particular thing given to a third party in
ownership or usufruct." This stipulation raises several issues.

Right of recovery is a right in rem since it is incorporated in title VIII entitled "Joint
Ownership, Usufruct and Other Right in Rems"[emphasis added]. Consequently, it
manifests the features of other real rights. One such nature is the right to pursue in the
hands of third parties.

Right of recovery could be established only on land particularly in case where the holders
of the right are relatives by consanguinity. The plots subject to right of recovery must be
rural ones and the person alienating them or creating usufruct on such plots must have
succeeded them from relatives (Art.1390). buildings are excluded from the scope of the
right of recovery of relatives by consanguinity(Art. 1390). on the other hand, where the
beneficiary of the right is one or more joint owners, the material scope of this right
appears to extend to all things (movable or immovable) subject to joint ownership. The
fact that the subject matter of the right of recovery of joint owners extends to all corporeal
goods holds true for a couple of reasons.

When Art.1261 (2) makes reference to the provisions governing roight of recovery, its
chief aim is to resolve issues relating to the mode of exercise of recovery of joint owners,
not to determine the material scope of their right. This is vivid from Art. 1261(2) itself.
Secondly, even Art.1388 - which is the most pertinent provision in this context - uses the
words "the thing jointly owned" without making reference to either movables or
immovables. The wording of Art. 1396 also strengthens this position for it excludes joint
owners, albeit impliedly. First glance at Art. 1390(1) and (2) reveals that the land subject
to right of recovery of relatives by consanguinity must have been acquired by the person
who has alienated it through succession. Notice the disparity between the Amharic and
the English version of the title of Art.1390. the former is entitled "origin of land" while
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the latter reads "ye'zimidinaw dereja age'mamet". Ultimately, however one would say
that the massage of the Amharic version is not different from that of the English version
since the source of the land will enable to determine whether a certain relative may or
may not avail himself/herself of the right of recovery under Art.1390. The conclusion is
that when the definitional Article says" a particular thing" it means: land acquired
through seccession as regards the right of recovery of relatives by consanguinity. On the
other hand, it means any thing, which is the subject matter of joint ownership in relation
to the right of recovery of joint owners.

When a right of recovery is established on immovables, then it must be registered. If such
publicity requirement is complied with, such right may be invoked against third parties.
Would Art.1569(c) warrant this conclusion? Would Art. 1723 be of any significance?

Right of recovery is a creation of the law. This is clear from Arts.1388, 1390 and 1394.
The Amharic version of the latter three provisions employ the words " beq'idmia
ye'megezat mebit be'hige meseret alachew" [emphasis added]. However, when Art. 1394
in part reads "The right of recovery provided by law "[emphasis added], it seems the
right of recovery may be constituted by private persons. We do not think so because when
Art.1204 (2) says, " such right [ownership] may neither be divided."[Emphasis added],
it appears to mean that ownership should not be charged with real rights other than those
indicated by the code itself since such encumbrances do have the tendency to immobilize
goods.
Right of recovery is an encumbrance on a thing. As real charge, it follows the thing. The
result is to force the third party in usufruct what he/she has bought as an owner or
usufructuary. As an owner the third party has the right to decide whether to sell it or not
to sell it, when to sell it, and to whom to sell it. Nevertheless the law is imposing a duty
upon such third party acquirer to sell the thing to a specified person within a given period.
This is a limitation upon ownership. This limitation - setting aside some of the
prerogatives of an owner - is there owing to the overriding goals we have mentioned
below. From the point of view of the person selling or creating usufruct on the thing
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subject to right of recovery has a negative impact since purchasers or acquirers of
usufruct for consideration would be reluctant to enter into such transaction precisely
because they may be anxious to enjoy the thing. Therefore, right of recovery is an
exception to the sovereign power of ownership confers on owners and because of this the
modes operandi of this right is carefully and narrowly worked out.

A couple of goals are sought to be attained in recognizing and protecting right of
recovery. In relation to the right of recovery of relatives by blood, the aim is to protect a
certain plot of land toward which relatives develop sentimental attachment. It is a plot,
which has been descending through generation. Such land is not simply seen as an object
of commerce; but it is an intergenerational value. Thus families wish to keep the plot
flowing through generation. As regards joint ownership, the aim is to see to it that
decisions concerning management of the thing are executed speedily and smoothly. The
assumption is that joint owners know, understand and tolerate one another. And the
coming into picture of a third party could frustrate this assumption. Then the law equips
joint owners with an effective tool by means of which they could expel an intruder.

Where the right is attributable to joint owner, then they are to exercise the right together;
it is not something given to a joint owner individually. This collective right is to be
appropriated pro rata. If one or more of joint owners relinquish their right, then the whole
right so surrendered may be exercised by the joint owners willing to enjoy the right.
Incidentally, this can lead to the termination of joint ownership through consolidation.

When the definitional Article employs the words "the right of recovery is the right of a
person"[emphasis added], it means joint owners and relatives related by blood
(Arts.1388 and 1389). The title and content of the latter Article use two different words.
The title says, "Right of recovery of parents" while the content employs the phrase "The
relatives by consanguinity" The word "parents" is also seen from Arts.1391, 1394 and
1396. When we read the Amharic version of Arts.1389 - 1392 and 1404(2), they use the
broader word 'relatives' whereas the same version of Arts. 1394, 1396 and 1401(2).
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The right of recovery of joint owners and relatives by blood is to be exercised against a
third party who has either become an owner or a usufructuary. It could also be exercised
in the case where the land or share subject to right of recovery has been attached by
creditors of joint owners or an owner of the land the aim of the beneficiary could be to
recover ownership or usufruct. Incidentally this shows that the usufruct could also be
constituted on usufruct. The reading of Arts. 1386, 1398(1) and 1407(1) shows that a
beneficiary of a right of recovery may exercise his/her right even in the case where the
owner or usufructuary alienates his/her thing gratuitously although the Amharic version
of Art.1386 tends to say that right of recovery is to be exercised when the previous owner
or usufructuary sells his/her right. In other words, this version of the Article apparently
tends to exclude free (without price) transfer.

The following conditions are necessary in the exercising right of recovery.
1. The subject matter must be land acquired (either ownership or usufruct) through
seccession in case of the right of recovery of relatives by consanguinity. In case of
the right of joint owners, it may be any object.
2. Such land or object must have been transferred (either freely or for consideration) to
a third party or it must have been attached by creditors. The land must not have been
subject to expropriation since the relatives by consanguinity may not exercise their
right against government authorities expropriating such land. The justifications
behind right of recovery of relatives must yield to the public purpose behind
expropriation.

3. When a beneficiary intends to exercise his/her right, he/she must make
communication to this effect to the third party who has acquired ownership or
usufruct within two months reckoned from the date of receipt of information. Who
should inform the beneficiary the fact of transfer? Though this provision is silent, the
most likely person is the transferor since the information is with him. We think we
need to read a tooth into this Article whose breach shall lead to extra-contractual
liability of such person pursuant to Arts.2035 and 2028. [Sanctioning a legal duty is
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what judicial activism requires among other things] as per the corresponding
Amharic version of Art.1400, the beneficiary is also to exercise his right within two
months calculated from the date of the attachment of the thing subject to usufruct.
Failing this, the beneficiary is to lose his right. This is an extensive period of
limitation (prescription). Yet what if the beneficiary has not been informed of such
fact (the fact of transfer)? If the beneficiary is a joint owner then, he/she shall lose
his/her right provided he/she has not declared his/her intention to exercise his/her
right within one month to be reckoned from the day when he/she knew of the
transfer or constitution of usufruct. So, the calculation depends upon actual
knowledge wherever its source might be. Of course, the source of the knowledge
under Art. 1401(1) looks to be somewhere else than the previous owner or
usufructuary. On the other hand when the beneficiary is a relative by consanguinity
(or when the subject matter of the right is land), then he must (under the pain of
losing his right) make declaration to the third party within six months from the day
when the latter entered into possession of the immovable. Here what matters is not
awareness but the fact of taking into possession of the land

4. For the declaration made in no.3 above to have legal effect, it must be accompanied
by securities (be it real or personal or both) which in the eyes of a court of our law
sufficient to guarantee payment of the price (Art. 1403). This provision likely
envisages the situation where a dispute arises between the beneficiary and the third
party against whom right of recovery is to be invoked and their case has been
brought to a court of law. A mere declaration of the beneficiary's intention to availe
himself of his right or recovery would be considered as if he made no declaration.

5. Where there are two or more beneficiaries at the same time in relation to the same
object and against the same third party, then a declaration shall benefit only him who
has made it [Art. 1404(1)]. It may happen that one of the relatives of the person who
has transferred the thing to a third party might make the declaration both in his
behalf and on an account of other relatives of the same order. He is not their agent.
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This declaration could benefit such relatives only if (a) they have expressed their
will to make use of the declaration, (b) such endorsement is accompanied by
securities sufficient to guarantee their share of the payments to be paid to the third
party and (c) the endorsement is made within six months from the date of the
declaration made by their relative to third party against whom the right of recovery is
being exercised [Art. 1404(2+3)]. This idea envisages obviously envisages the
circumstances where relatives by consangunity wish to exercise their right of
recovery concurrently [Art. 1393(1)]. The rule of parity will apply in such case.
And when one of the relatives relinquishes his/her right, the other(s) may exercise it
[Art. 1393(2)].

6. It is the fundamental duty of the beneficiary to refund the price of the thing to the
third party. The price is that which he has been paid to the previous owner or
usufructuary at the time of transfer [Art. 1406 (1)]. The third party is not permitted to
show that the price he actually paid was greater than the price indicated in the contract
concerning the sale of the thing subject to right of recovery. On the other hand, the
beneficiary is entitled to prove the existence of simulated contract, that is, he can
prove that the price mentioned in the contract is greater than that which was paid
actually [Art. 1406(2+3)]. When the subject matter of right of recovery is an
immovable and when the third party acquired it without consideration he is allowed to
get the value of the immovable, according to the Amharic version of Art 1407(1); the
English version provides that the third party is entitled to"... an amount of
compensation equal to the value of the right of which he is deprived." Do the
wordings of the English version mean the value of the immovable as the Amharic one
does? Does the phrase " where an immovable has been acquired..." in Art. 1407(1)
show that a third party would not be entitled to get compensation when he was a
usufructuary, not an owner? If we take the Amharic version as to the extent of
compensation, would the third party be entitled to get the value of the immovable at
the time when the beneficiary exercises his right or its value reckoned at the time
when the third party acquired the immovable? Would Arts. 1407(2) and 1474(2)
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give solution to the latter question? If these two sub-articles are the solution, do not
you think that this solution somehow contradict with Art.1406(1)? This as it may
when there is deadlock between the beneficiary and the third party on the issue of
compensation under Art. 1407(1), then sub-article two of the same article is to come
into force. There is divergence between the Amharic version of Art. 1407(2) and its
corresponding English version. The former refers the issue of assessment of
compensation to the provisions of unjust enrichment, while the latter refers us to Arts.
1472-1477 which deal with the manner of assessment of an immovable being
expropriated.
7. On the top of the obligation to pay the price, the beneficiary is expected to pay
collaterals (accessories). These collateral are firstly expenses related to the
conclusion of the contract (e.g. expenses arising from drafting the contract and
transfer charges) (Art. 1408(1)]. These expenses also bear interests from the day the
third party incurred them [Art. 1408(2)]. Secondly, the price the third party paid in
acquiring the thing also bears interest to be calculated from the date of the payment
[Art.1408(2)]. In both cases, interest means legal interest not contractual interest.
And price and the expenses are to bear legal interest until the third party is refunded
therewith [Art. 1408(2)]. The law gives to the beneficiary another option in
discharging his/her obligation to pay legal interest on the price and other collaterals:
he/she may relinquish to the third party the fruits of the thing subject to right of
recovery collected in one year from the date of his entry into possession of the thing.
Notice that the possession of the thing is to be in the hands of the beneficiary, not in
the hands of the third party. If the beneficiary opts to use this option, then he will
have to merely surrender fruits the thing produces in one year. Moreover, the subject
matter of right of recovery would be in the hand of the third party until the beneficiary
exercises his right and recovers it. In the mean time, he might have made some
improvements which would amount to enrichment without cause. On the contrary,
meanwhile the thing might deteriorate considerably in the hands of the third party. To
adjust such situations, the law makes reference to the provisions of unjust enrichment
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(Art.1409). Finally, all these payments are to be made by the beneficiary prior to the
on set of the duty of the third party to effect transfer [Art. 1405(2)].

8. When a person succeeds a plot of land from his/her relatives in paternal line and sells
it to a third party, then only relatives from paternal lines have the right of recovery of
such land [Art. 1390(1)] [see also Art. 849(1)]. On the other hand, if a person
succeeds a plot of land from his/her relatives in maternal line and sells it to a third
party, then only persons from the maternal side do have the right to exercise right of
recovery of such plot [Art. 1390(2)]see also Art. 849(2). Does not Art. 1390 refer
only to sale? What about the case of alienation for free? Again what about a mere
sell of the usus and fructus aspects of the plot? Relatives related by blood are to
exercise their right of recovery following the pattern stipulated in Art. 842-851. As
per these articles the first to exercise right of recovery are descendants and then
ascendants (Art. 1391). Suppose that there are five children from the maternal side
and supposing that one of these children has been living on and exploiting a certain
plot which has come from the maternal side and has been alienated, then this child,
will be given priority to exercise the right of recovery Art. (1392). If there are two or
more children who have been exploiting the land, then they would jointly exercise
such right (Art. 1393).
9. When read together with the corresponding Amharic version, the word"usage" in Art.
1387 does mean exploitation or use of a thing subject to right of recovery for a very
long period of time. It does not convey the idea of custom as the English version
alone might connote. By virtue of this article a person does not get right of recovery
by the sole fact he/she himself/herself or his/her anscestors exploiting such land for
several years. This is an irrelevant ground.

10. Assuming that a beneficiary has met all the conditions necessary for the exercise of
his/her right of recovery, then the legal effect is the duty of the third party to effect
transfer his rights to the former [Art. 1405(2)]. He must effect transfer as soon as he
has secured all the payments he is entitled to Art. 1405(2)].
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11. The nature of right of recover is: (a) inseparably linked to the person of the
beneficiary, (b) hence may not be transferred neither freely or nor for consideration
and (c) non-attachable (Art. 1397).

Review Questions
1. Do Arts. 1386, 1398 and 1400 indicate that usufruct may be constituted for
consideration?
2. The material scope of the right of recovery of joint owners are broader than that of the
right of recovery of relatives by compensability. Do you concur with this statement?
Why?
3. A decision to exercise right of recovery f joint owners could be made by majority of
the members of such joint owners and all the joint owners would be bound by it. Is
this a valid assertion? Why?
4. The right of recovery of joint owners comes into question even when one of the joint
owners has given his/her share on usufruct. Do you think that this is a correct
assertion? Why?
5. The right of recovery in Ethiopia is impliedly abrogated since it exclusively relates to
land and since land is presently owned not by individuals but collectively. To what
extent do you support this proposition?
6. May individuals create right of recovery through agreement?
7. What does the word "usage" mean in Art. 1387. Does it mean "custom"?
8. There seems to be a contradiction between Arts.1386 and 1407? How should we
reconcile them?
9. Is there any disparity between the two versions of Art. 1386?
10. Distinguish rights of recovery from rights of pre-emption.
11. May a person avail himself of right of recovery when antichresis is established on a
thing subject to right of recovery?
12. A relative by consanguinity has the right to exercise his/her right of recovery when a
usufruct is established on the land subject to right of recovery and such relative could
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recover not merely usufruct but ownership. This statement is completely erroneous.
Do you agree? Why?
13. Would this conclusion be sound:" no formality is necessary in establishing right of
recovery( that is written form and registration) since this right emanates from the law
itself not from the covenant of private citizens."
14. May joint owners exercise right of recovery against another joint owner who has
bought the share in the thing jointly owned? What consideration(s) may one take into
account in reaching a negative response to this question?
15. Right of recovery is a burden on the thing subject to such right. Explain.
16. The two versions of Art. 1407(2) make reference to two entirely different parts. of our
civil code. Which reference appears to be more logical? Why?
17. Who is to administer the thing under Art.1408(3)? The beneficiary or the third party?
18. Can we say that the right of the third party to take fruit under Art.1408 (3) is
strikingly similar to usufruct? Why? Why not?
19. Identify the requirements that must be observed in order for a relative to benefit from
a declaration made by his/her relatives of the same order.
20. Right of recovery amounts to limitation of the power of the third party who has
acquired the thing. How?
21. The Amharic version of chapter four entitled right of recovery indiscriminately uses
the words " ye'kedemitinet g'zji mebit". But these words are used by the code to
describe right of pre-emption. And such words are inaccurate. Would it be accurate to
employ the Amharic phrase "ye'asge'ddido g'zji mebit" in leiu of the above Amharic
words to describe right of recovery?
22. Explain Art.1395 of the code.
23. Under what situations Art.1394 may come into application? Exemplify.

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9. Restrictions on the Right to Dispose
Certain Things

9.1 Right of Preemption and Promise of Sale Arts. 1410-1425
1. A promise of sale is a contract in which the owner of a thing agrees to sell the
thing to a specified person if such person decides to buy it. So the contract comes into
force when the promisee makes a decision to purchase the subject matter of the
agreement. Of course, the owner must have consented to sell his thing not at the time
when the beneficiary whishes to exercise his/her right under the promise of sale but at the
time when the agreement is forged (Art. 1410(1)). This undertaking constitutes a
limitation on the right to dispose of certain things as the title of chapter 5 clearly
indicates. How? It is an imposition because after the making of the covenant, then the
owner of thing may not lawfully assign either freely or for consideration to a person of
his/her choice. Nor can she/he create rights in rem such as usufruct or servitude.
Moreover, he/she may not assign it at the time when she/he wishes. Strictly speaking the
promisor's ownership right is also limited in time, it is not perpetual. Therefore a promise
of sale is an encumbrance; it is a real encumbrance, a right in rem (Art. 1411 (1&3))

2. The source of a right of preemption is agreement. It is an agreement between the
owner of a thing and the beneficiary of preemption right. In this undertaking the owner of
the thing consents to sell to the beneficiary, not to other persons who might wish to buy
the thing, in case where the owner decides to sell it. Unlike promise of sale, the critical
decision comes to force upon the decision of the owner. The idea is that when the owner
makes up his/her mind to sell his/her thing then, there may be several competitive buyers
and the owner must disregard the other buyers and prefer to sell the thing to the
beneficiary. So right of preemption is a preferential right (Art. 1410(2)). Also notice that
right of preemption, unlike right of recovery, normally presupposes that the object of the
right is not assigned. Right of preemption that amounts to "restriction on the right to
dispose of certain things, " to use the language of the Code. This is so because the owner,
should he decide to assign the thing, shall not sell it to any body but one person; he who
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benefits from right of preemption. It is one of the series of prerogatives of an owner to
sell his thing to the person of his/her choice, or not to sell his/her thing to the person of
his/her disliking.

3. Notice that the provisions relating to right of preemption will not be applicable to
the situations envisaged by Art. 1261 and Art. 1125. The latter Article is quite
erroneously entitle "preemption in case of transfer of rights to a succession" Instead it
ought to have been entitled " Right of recovery in case of transfer of right to a succession
to a person other than an heir". This is warrantable for three reasons. First, the content of
the Article foresees the situation where, after liquidation of a succession, an heir has
assigned his/her share to, not to the other heirs, but to a third party and the other heirs are
given the right to compel the third party to sell to them. Thus this is exactly what right of
recovery entails; right of recovery presupposes that a thing is transferred. Incidentally,
notice that the subject matter of right at recovery of heirs-like the case of joint owners-
could be movables, immovables and incorporeal things. Second, Art. 1125(2) makes
reference to previsions relating to not right of preemption but to right of recovery (Art.
1386-1409). Third, when we see the corresponding Amharic version of Art. 1125(2), it
simply makes reference to title 8 and right of recovery emanates from the law while right
of preemption gets its force from covenant (see the languages of Art. 1125(1) and Art.
1410(2))

4. Pursuant to Proc. No.47 /1975 ( as amended) the government has a right of
preemption when any individual wishes to sell his/her dwelling house in cities. This is,
unlike Art. 1410(2), a legal right of preemption. In enacting the government intended to
counter check the evasion of the nationalization of urban land and its withdrawal from
commerce. Individuals in various cities and towns of this nation used to and still are,
build a shanty and lower price building but sell it at a considerably higher price. This in
effect means sale of land.

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5. These are provisions or conditions applicable to both right of preemption and
promise of sale:
5.1 The subject matter shall be either immovable or a specific chattel. By a
specific chattel means that the movable intended to be the object of the right
has to be described and specified, that is, one cannot make his/her totality of
movables subject to either right of preemption or right of recovery. The
movable has to be identified or singled out from the patrimony of the owner.
If this condition has not been observed, then the agreement may not give rise
to real right and it may not amount to restriction on ownership. (Art. 1411(1))
The implication is that it will lead to the creation of right in personam (Art.
1411(2))
5.2 For agreements concerning right of preemption and promise of sale to have
legal effect they must be made in writing, they must specify the time within
which and the price for which the beneficiary may invoke his/her right. In
other words, the beneficiary must be identified, the price has to be determined,
the agreement must be made in writing; the period within which the agreement
had to be enforced should also be fixed. Failing these conditions (non-
observance of one or more of those conditions), the agreement itself may not
give rise to real right (Art. 1412).
5.3 As per Art. 1412, it is a requirement to fix a period within which right of
preemption or promise of sale has to be invoked. The law has fixed the upper
limit for this period; this is ten years. Where the parties have fixed a period
more than ten years, it shall be reduced into ten years, that is, the agreement
would not be rendered null and void (Art. 1413).
5.4 Right of preemption and promise of sale will not be exercised when the
subject matter of such rights is expropriated. The beneficiaries of such rights
are not entitled to claim compensation on the ground that their rights could not
be enforced because of expropriation proceedings (See Art. 1414). Notice that
the English version of Art. 1414 is quite erroneous. The Code supplies
Corrigendum to this Article. The corresponding Amharic version is correct
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there is not topographical error. The Amharic version of Art. 1414(1) contains
an additional idea (see the phrase "nibret sile hizb tikim yetewosede
endehone woim legizew yeteyaze endehone ferashoch yihonallu" [emphasis
supplied]. What do the underlined Amharic words mean? Do they mean
requisition that is, the tentative taking away of movables? This hardly seems
the case because the title of the Article says " expropriation" and expropriation
under Ethiopian Civil Code relates only to immovables. The phrase under
consideration tends to bring into Ethiopian law of expropriation (as embodied
in the Civil Code) an alien idea since it (the phrase) tends to say that even a
temporary taking of an immovable for public purpose, amounts to
expropriation while expropriation in its strictest sense leads to deprivation of
ownership. Can we extend Art. 1414 to requisition by analogy?
5.5 Right of preemption and promise of sale are inseparably linked to the
beneficiary. Thus the beneficiary may not make a stipulation benefiting a
third party. The beneficiary may not transfer such right either freely or for
consideration during his/her life. After his/her death, the right will go to his
tomb; it will not pass to his/her heirs. Nor can his/her creditors seize such
right. (Art. 1415) However, the right may be assigned or attached or stipulated
in favour of third parties or transmitted when there is a contrary agreement
between the owner and the beneficiary to this effect. This conclusion because
the phrase "unless otherwise agreed ." in Art. 1415(1) shall be read into the
remaining Sub-articles of the same Article.
5.6 When the immovable on which right of preemption or promise of sale has
been constituted is already registered in the register of immovables, then the
agreements creating such rights must also be entered into such register of
immovables. Third parties dealing with the owner will not be affected if this
has not been done. In other words, the beneficiary may invoke his/her right of
preemption or promise of sale against third parties only if there is publicity.
(Art. 1422) The Amharic version of this Article does not put as one of its
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modus operandi, the message that the immovable must relate to a registered
one.
5.7 Article 1423 applies when the immovable on which right of preemption or
promise of sale is created has not been registered or there is not system of
registration in the locality where such rights have been created. In such cases,
the beneficiary may invoke his/her right against third parties if his/her rights
are registered in the registry of the court of the place where the immovable is
situate. Notice that the place is critical for the whole idea behind such
registration is publicity and since the most likely place where third parties
about to enter into dealing with the owner resort is the place where the
immovable is located. He/she may invoke her/his rights against third parties if
he/she proves that such third parties, at the time of securing an interest in the
immovable, actually knew or should have known the fact that right of
preemption or promise of sale was created. This has adopted both objective
and subject tests. (Art. 1423(2))
5.8 Third parties' right in relation to movables could be affected only if they knew
or should have known the existence of agreements relating to promise of sale
or right of preemption. the beneficiary needs to show actual knowledge or
ignorance of the fact of creation of right of preemption or promise of sale
because of carelessness; the third party did not know such fact because he/she
fails to heed. (Art. 1424). What does the word " movable" mean? Should it
include also special movables requiring registration such as televisions, motor
vehicles, ships, aircraft, etc? Or should we restrict it to ordinary movables,
which need no formality except possession and cause for a transfer of
ownership to take place?
5.9 Where the conditions set forth in Art. 1422 or Art. 1423 are complied with by
the beneficiary of right of preemption or promise of sale, he/she can invoke
the agreements creating such rights against third party. Such third party must
have acquired the immovable from the owner in violation of the right of the
beneficiary. The third party would be obliged by the beneficiary to transfer
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the immovable to him/her (the latter). The beneficiary is to exercise his/her
right on the conditions (e.g. as to price, and time) set forth in the agreement.
The beneficiary is to stretch his hands to the third party within six months to
be counted from the latter having entered into possession of the immovable.
Notice that this period is based not on knowledge but the fact of possession
(delivery). Unless he/she invokes the right within six months, then his/her
right to follow the immovables in the hands of third parties would be lost; it is
an extinctive prescription [Art. 1425(1&2). ] His/her right would be lost even
if there is a stipulation between him/her and the owner lengthening the six
months period [Art. 1425(2)]. Art. 1425 (1, 2&3) provides for immovables
only. So does the corresponding Amharic version. Why should this provision
exclude movables? Art. 1425 is a follow up of Arts. 1422, 1423 and 1424,
even it is a logical culmination of these three Articles. This is evident from
the numbering of these Articles. We could say that this contextual
construction warrants us to conclude that Art. 1425 must also extend to
movables.To whom should the beneficiary pay the price? Should he/she pay
to the third party since the latter has paid price to the owner in acquiring the
immovable? In other words, payment to the owner would be a double
payment. Does Art. 1425(3) mean the beneficiary shall affect payment to the
owner while the third party sues the owner with the view to getting the price
he/she paid in purchasing the thing?

6. In the course of promise of sale, the owner has no right to : (a) alienate the thing
subject to promise of sale either by exchange, freely or for other consideration; and (b) in
principle, to encumber the thing with rights in rem (right of recovery, servitude, usufruct,
habitation, etc.) Art. 1416(1)). As an exception to Sub-article one, the owner may create
a couple of rights in rem: mortgage and pledge. Yet the price for such securities must
not exceed the price fixed in the agreement in which the promise was made (Art.
1416(2)).

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7. The creditors of the owner may have the subject matter of promise of sale
attached. In this case, the owner is duty bound to give information to the beneficiary.
After such notification, the beneficiary is to lose his/her right if she/he has not exercised it
before the thing being sold by auction (Art. 1417). Suppose, the owner has not notified
the fact that the thing was attached? Suppose the owner informed him after the sale by
auction? Suppose he made the notification on the very day on which auction is to be
organized? We should hold in all those cases that the owner has utterly failed to carry out
his duty to supply information to the beneficiary in connection to attachment. What
should be the consequence of such failure? No answer is given by this section. The duty
looks a toothless dog. We think one of the requirements of judicial activism is giving.
Sanctions to legal duties. so, we should read a sanction into Art. 1417. this would lead
us to see Art. 1417 and 2035 of the Code.

8. In connection with right of preemption, the owner has the right to constitute rights
in rem on the thing subject to such right. Thus he/she is entitled to constitute servitude,
usufruct, habitation, etc. The owner would be deprived of this right when there is a
contrary covenant between him/her and the beneficiary. (Art. 1418(1)) The owner may
decide to sell the subject matter of preemption. In that case, he/she is obliged to inform
to the beneficiary of all the real rights the former has established on the thing. The
suggestion is that the owner is to bring the fact of his decision to sell the thing into the
attention of the beneficiary (Art. 1418(2)). The corresponding Amharic version is moot
about whether the information the owner has to make to the beneficiary includes right in
rem or not. The Amharic version however clearly, unlike the English version, stipulates
that the owner is duty bound to notify to the beneficiary the former's intention to sell the
thing. What if the owner fails in his duty to inform to the beneficiary the fact of the
formerly plan to sell the thing? What should be the sanction? Should we read Art. 1418
(2) together with Art. 2035?

9. The beneficiary is to exercise his right within two months calculated from the
owner having informed of his/her intention to sell thing covered by the right of
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preemption (Art. 1419(1)). The two months period could be extended to one year
pursuant to the agreement of the owner and the beneficiary. This stipulation could be in
the original agreement or subsequent arrangement. If the period elongated exceeds one
year it has to be reduced to one year (Art. 1419(2) and(3)). The extended period can help
the beneficiary pull up the necessary money. The beneficiary might fail to invoke his/her
right within two months from the date of information relating to the plan of the owner
flowing to him/her or one year as per the period lengthened. Should this happen, the
beneficiary shall be deprived of his/her right; his/her right shall be extinguished. The
legal consequence of the death of his/her right is the freedom of the owner to alienate the
thing any time he/she wishes and to a person of his/her taste (Art. 1421(1) and(2)). In
addition to this, it is absolutely within the owner's discretion to retain the ownership of
the thing (Art. 1420(3)).

10. The owner has to inform to the beneficiary the fact of attachment of the thing
subject to preemption. (Art. 1418(3)) He/she is expected to avail himself/ herself of such
right before sale by auction. Failing this, his/her right will be killed. (Art. 1421(1)) A
provision, which tends to survive the right of the beneficiary after sale by auction is to be
given no legal effect. A contrary provision means a stipulation in an agreement made
between the owner and the beneficiary. (Art. 1421 (2)).

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10. Collective Exploitation of Property.
10.1 Public Domain (Arts.1444 -1459)
1. Regardless of its ideology, a state must have property. The minimalist
philosophy may give fewer and classic roles to the state. The Marxist view ascribes to
it very much broad functions. The philosophy of welfare state bestows to the state
moderate functions. In all cases, the state will necessarily have property. In one case,
property in the hand of the state may expand in another case it may shrink. Thus a
state cannot live without having property.

2. The political units of each region of this country range from kebele to region.
All these units from bottom to apex may have property. The various ministries,
commissions, authorities and agencies do have movables or immovables or both. So
are the parliament, the judiciary, tribunals and public enterprises. We may designate
all these goods as state property. What is attempted to be divided under Art. 1444 is
state property. This state property is categorized into private domain of the state and
public domain of the state.

3. The basis of the dichotomy is very much controversial. One view is that the
criterion of the dichotomy must lie in whether a certain property belonging to the state
is insusceptible of private ownership or not. According to this view insusceptibility of
private ownership is the criterion on the basis of which we categorize a certain good
into public domain of the state. This line of thought has been criticized in that nothing
in general can be insusceptible of private ownership. In other words things are not by
their very nature incapable of privately owned. Thus for this opposing theory we must
find the reason for the classification somewhere else. For these theorists the true
reason for the dichotomy is dedication of a certain thing to the public use or service.
Our Civil Code tends to adopt this second view for a thing would be regarded as
falling in the public domain if "it is directly placed at the disposal of the public" [Art.
1445(a)]. Another alternative criterion is also adopted. According to this standard
there is a certain good and there is a public service and the former is destined to be
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used by the latter in order to promote its particular objective [Art. 1445(b)]. The
authorities in charge of the administration of things in the public domain may charge
fees, these fees are merely considered as service charges and this fact may not warrant
one to say such property is in the private domain of the state. The obvious implication
of Art. 1445 is that all goods in the hands of the state which meet the requirement of
this Article will fall within public domain of the state. In other words all things
belonging to the state and which do not fulfil the test of Art. 1445 fall within the
private domain of the state. The dedication is made by the legislature. It is obvious
that the Civil Code provisions relating to public domain have been issued by the
lawmaker and it is those provisions, which serve as a guideline in drawing a line. So
they amount to dedication to the public use.

4. Since the Code does not claim to give us a precise definition, it provides us
with illustrations. That is, what is provided by Art. 1445 is simply guideline and Arts.
1446-1447 and Art. 1255 supply us with examples of things, which must fall within
the public domain. As regards these illustrations, there would be no controversy for
the Code urges us to categorize them automatically into the public domain. What is
the relationship between the principle or the guideline put as per Art. 1445 and the
enumerations indicated under Art. 1446- 1447 as well as Art. 1255 of the Code? It
seems that Art. 1445 will be operative when the examples given by Art. 1446-1447
and Art. 1255 do not help us. That is, there is a certain object belonging to the state
and could not fall within the ambit of these provisions, then we test it in light of the
criterion put under Art. 1445. Are the enumerations non-exhaustive or a closed
listing? With the exception of Art. 1446 (c) (which is obviously an open-ended
listing) the others are very difficult to say whether they are exhaustive or otherwise.
What is the need for Art. 1448? It appears that what is intended by Art. 1448 could be
taken care of by Art. 1445. For the former Article and sub-a of the latter provision use
the words "placed at disposal of the public." Is Art. 1448 there for the sake of
emphasis then? The question of whether Art. 1448 is redundant or not as it may,
antiques one finds in museums would fall within the ambit of this provision. Roads,
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streets, canals, railways, seashores, port installations and lighthouses, churches,
mosques, fortresses, waterways, lakes and underground accumulations of water shall
fall within the public domain (Art. 1446, 1447 and 1255). Because of certain
justifications the period of protection of patent and authors' rights is limited under
Ethiopian law as is in other legal systems. After the lapse of such fixed period of time
the public is free to use such intangibles. For example, if it is a book one can adapt it,
produce it and reproduce the same without consulting the author. Generally one could
say that the composition of things in the public domain may be an immovable or
movable or intangibles such as copyright and patent.

5. The effect of the classification of property belonging to state or other
administrative bodies into private domain and public domain is applying different
rules to each of them. Property within the private domain of the state would be
regulated by titles VI, VII and VIII of Book III of the Code (Art. 1444(1). The
consequence of this is that such property could be alienated (either freely or for
consideration) acquired through possession in good faith, occupation, usucaption and
accession. The state owns its private domain in its capacity as any individual or
corporation. On the other hand, if a certain property is categorized into the public
domain, Section 1 chapter 1 of title IX of the Code applies to it [Art. 1444(2)]. The
consequence of this is that such property may not be alienated either freely or for
consideration (price or exchange) even by the state or its administrative units which
are merely regarded as custodians (Art. 1454). Further no one can acquire such
property through possession in good faith or usucaption (Art. 1455) Nor, it seems that,
can one acquire property in the public domain through occupation (for they are already
occupied) and accession.

6. Our Civil Code says something about public domain (see section 1 chapter 1
Title IX). Some writers say that private laws should not say any thing about public
domain. The fate of public domain must be entirely regulated by administrative law,
which is a branch of public law. Some others, including Marcel Planiol, oppose this
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view and state that private law is there to lay down the basic principle such as general
classification of things. For them, Civil Codes must say something about public
domain, though they admit that it should not provide detailed rules in relation to public
domain. Our Civil Code is in line with the latter approach.

7. Art. 1450 envisages two means through which public domain may increase or
expand. These are: expropriation and alignment. The former relates to the taking
away of plots of land in return for compensation for public interest [Art. 1450(1)].
The property so taken may enter the public domain. Alignment proceeding, on the
other hand, helps the competent authorities to widen or straighten narrow or zigzag or
short roads or streets [Art. 1450(2)]. Where the plan of widening or straightening
narrow or zigzag or short roads and streets reveals that certain unbuilt tracts of land
fall within public ways, then such plots of land would be automatically incorporated to
such public ways (Art. 1451). Alignment plans are particularly related to town plan
(see the corresponding Amharic versions of Art. 1451, 1452 and 1453). On the other
hand, if the alignment plan shows that built land is within public ways such land
would be encumbered with a servitude/to draw back. The owner of such buildings
will then be obliged to remove some of the buildings and leave part. of his/her plot for
the purpose of widening or straightening roads or streets [Art. 1452(1)]. Even before
the owner draws back, he/she is precluded from consolidating the building or doing
some activities with the view to attaining durability of such building (see the Amharic
version of [Art. 1453(2)]. This is a limitation- a serious one- on ownership. Art. 1453
refers us to Arts. 1470-1477 which relate, generally, to determining compensation to
be given to persons whose property are taken away through expropriation proceedings.
These Articles are applicable in fixing compensation to be paid to owners whose
property are restricted or taken away in order to straighten or widen streets or roads.
In accordance with Art. 1449, the competent authorities may take away certain tracts
of land and even building along waterways and seashores in delimiting the natural
limits of waterways and seashores. The second Sub-article of the same Article
provides the possibility of awarding compensation to an injured party. Who is this
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injured party? According to the Amharic version of this Sub-article, it is the owners
who would be entitled to get compensation. As per the corresponding English version
it is " third parties" who may get compensation. It is obvious to imagine that a
decision fixing the natural limits of waterways and seashores might injure owners or
third persons who have dealing with such owners. And we may consider persons
having dealing with owners as third parties, seen from the point view of the
'transaction' between the competent authorities and the owners. The implication from
this argument is that both owners and third parties having an interest in the land or
buildings restricted or taken away by the competent authorities are possible injured
parties and if this is the case there is no reason why the two may not be entitled to
claim compensation. This as it may, the compensation is to be fixed in accordance
with Art. 1470-1479 of the Code. Moreover such compensation will not be automatic
since Art. 1449(2) employs the words " where the court is of opinion that the
decision of the authorities is not justified". As per Art. 1449(3), the court will have
jurisdiction on matters relating to whether compensation should be due or not and if
compensation must be due, then the extent of the same; it will not have the power to
set aside the decision of the competent authorities.

8. The public authority, which is in charge of the management of things in public
domain, has certain powers. (Arts. 1456-1459). Things in public domain may be
given in concession to private persons; such concession must not have the effect of
altering the purpose of such property (Art. 1456) For example if there is a national
museum and if it has ticket and Artifact shops and restaurants the latter may be
contracted out to individuals. Besides, the public authorities entrusted with the
administration of property in the public domain may authorize private persons to
occupy such property and construct works on the same (Art. 1457). In order for an
individual to occupy property in the public domain, there must be an authorization,
that permit must specify whether it enables the person to undertake construction and
the character of such construction as well as the time for which the authorization is
granted and the fees he/she must pay in return for the grant [Art. 1457 (2&3)]. The
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public authority that gives the authorization (Art. 1457) or grants the concession (Art.
1456) is given the prerogative to cancel the authorization or the concession if the
private individual (beneficiary) fails to adhere to the conditions specified as per such
undertaking, (Art. 1458). Pursuant to Art. 1459, the public authority is empowered to
order the destruction of any work or the cessation of any activity (of the beneficiary)
which in fact impairs the very existence or the purpose of the property forming part of
the public domain. Who is to decide the activities already performed or being
performed or about to be carried out would actually defeat the very purpose of the
thing in the public domain? It is left, it appears, to the concerned authority. Sub-
article two of the same Article gives to the concerned authority the power to cancel the
authorization it has given or the concession it has granted. The individual who is the
victim of such revocation of authorization or concession is referred to Art. 3131-3306
of the Code.

9. There are two grounds on the basis of which things once in the public domain
cease to be so and enter into the private domain with its obvious legal consequences.
One ground is declassification through declaration. The contrary reading of Art. 1454
reads as follows: " Property forming part. of the public domain may be alienated if it
has been declared no longer to form part. of the public domain " Who makes the
declaration? How should such declaration be made? Is it to be made through
legislative act or ministerial order or a regulation? Why such declaration may be
made? The second reason for withdrawal of things from public domain is non-use. If
a thing in a public domain (for example a street) is no longer in use, it may be open for
private appropriation. If a fortress serves no longer its end, then it would fall within
the private domain.

10.2 Expropriation Proceedings (Art. 1460-1488)
1. Compulsory sale, condemnation, taking, expropriation proceedings and eminent
domain are terms interchangeably used with expropriation.

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2. We should appreciate the distinction between nationalization and expropriation.
The former has ideological overtone, particularly it is associated with the Marxist
doctrine. Consequently, it is said that nationalization is borne with Marxist ideology.
On the other hand, expropriation exists regardless of the ideology adopted by a state;
in fact, it is said that expropriation is co-extensive with state. Expropriation
presupposes compensation, although the extent of compensation could be
controversial. At least theoretically nationalization does not carry with it
compensation since the idea is to take away property from wealthy people and since it
is one method of minimizing wealth disparity or since it is one mechanism of
eliminating the evils of private ownership. Some say also the property taken through
expropriation would not be left intact; if the property taken is a building it will be torn
down and public works will be erected in its place. As regards nationalization, they
say, the property so snatched would be left in tact. Yet this may not be considered as
a distinction at all since in both case the property taken away from private individuals
may be left untouched. For example, a magnificent building taken by authorities
through expropriation may serve as an Art. gallery or national museum. A further
distinction is that expropriation could be employed to take away property not only
from private individuals and corporations but also from the private domain of the
state. Obviously, on the other hand, nationalization assumes private property pure
and simple. We need also to differentiate expropriation from requisition [see Art.
1319(2)] Though both of them are restored to on account of public interest,
requisition relates to the taking away of movables from private individuals while
expropriation is generally concerned with the taking away of immovables. If we stick
to the language of Art. 40(8) of the FDRE constitution the distinction on the basis of
their subject matter disappears for this constitutional Sub-article refers to private
property, which means "any tangible or intangible product". Additionally, we ought
to distinguish expropriation from taxation. Even if both are specific expressions of
the sovereign powers of state, expropriation puts the state and the individual whose
property is expropriated in debtor-creditor relationship since the individual is entitled
to compensation. In relation to taxation, generally, there is no such relationship; the
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individual may not expect any direct reward in return for the tax he must pay. Public
finance writers say that the state is duty bound to give something in return for the tax
it collects from its citizens. This duty of the state or the right of the taxpayer is
provision of public goods and services. Yet the distinction is still maintained since
the benefit is indirect and at times remote. It is said also that in the case of
expropriation the person whose property is taken away is made to shoulder more
burden than he/she should, that is why expropriation is followed by compensation; in
case of taxation it is asserted that the taxpayer is obliged to make contribution which
is just. Furthermore, the reader is expected to make a distinction between
expropriation and confiscation. The latter term refers to forfeiture of property from
individuals as a result of their criminal behaviour. This property will go to the state.
Expropriation also entails transfer of private property to the state yet it does not
presuppose conviction or some criminal conduct of the individual who is deprived of
his/her property. The property of the most innocent or law abiding citizen may be
subject to expropriation. Finally, expropriation differs from the police power of the
state. Expropriation is a positive action of the state; it takes private property for the
betterment of the society at large. In the case of the regulatory power of the state, the
state does negative things for the purpose of the welfare of the public at large. It is
said that in tearing infested buildings in destroying or burying foodstuffs suspected to
have been poisoned or sub-standard, the state is eliminating existing evils. The
negative actions of the state may have private interest but there is no remedy for it
unlike the case of expropriation.

3. The definitional Article contains the word proceedings (Art. 1460).
Expropriation is defined in terms of procedures or legal steps in order to check the
possible arbitrariness on the part. of the executive. Art. 1204(2) envisages the
possibility of imposing a restriction on ownership; the same Sub-article provides that
any restriction must be made in conformity with and as provided by law.
Expropriation is the clearest case of interference by the state with private property
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and it must be carried out in line with established rules. We defer the discussion of
the procedures to be followed in expropriation.

4. Generally it is competent authorities that will undertake expropriation (Art.
1460). Thus expropriation is not to be made by private individuals. And
expropriation is not to be made by any authority but the competent ones. Perhaps, we
ascertain the competency of an authority by reference to its establishing statute or
other statutes. For instance, the proclamation establishing Ethiopian Road Authority
or Ethiopian Electric, light and Power Authority enables them to undertake
expropriation. Another example is Article 1538(3) which states that in carrying out
town plan " the municipality may use expropriation proceedings" Sometimes private
individuals particularly corporation may carry out expropriation proceedings. For this
to take place there must be concession between the relevant authority and the
individual. In addition to this, the concession secured by such person must enable
him /her/it to carry out expropriation (Art. 1462).

5. As per the definitional provision (Art. 1460) the material scope of expropriation
is limited to immovables and interests connected to immovables. As to Art. 40(8) of
the FDRE constitution, the scope of application of expropriation is private property "
which is defined pursuant to Sub-article of the same Article as any tangible or
intangible product which is the result of labour, creativity or capital." Consequently,
expropriation may apply to patent, copyright or movable, or immovables. At this
juncture one may raise the question: would expropriation apply to land since the
constitution does not consider land as private property? Does this mean that
government may freely take plots from farmers without being obliged to pay
compensation?

6. The property to be taken away is first and foremost from private individuals.
Additionally expropriation may be invoked to take property from the private domain
of the state. This is suggested by Art. 1444(1). According to this Sub-article,
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property belonging to the state or administrative bodies will be governed by rules
applicable to private property if they do not fall within the scope of the public
domain. One of the section of the Code applicable to private property is provision
relating to expropriation. Therefore, these rules apply to the private domain of the
state.

7. Expropriation takes place against the will of the owner or the interest holder. If
the individual gives his/her consent then the transaction will be sale not expropriation.

8. Expropriation may lead to the surrender of full or bare ownership of a certain
thing (immovables). It may bring about loss of part. of a certain plot of land or
building (Art. 1450(2) and Art. 1469). It is clear that right of recovery, right of
preemption, mortgage, promise of sale, usufruct, habitation, servitude or other rights
in ream are right short of ownership. Expropriation can be used to acquire or
terminate these rights in ream (Arts. 1414, 1399 and 1461(1). W/ro X might have
leased her building. If this building is expropriated before the lease terminates, the
authority expropriating the building could terminate such lease even before it expires
[Art. 1461(2)].

9. Since property right is one of the fundamental rights recognized in the present
constitution, since expropriation may open a wide door for arbitrariness on the part.
of the relevant authority, since expropriation is perhaps one of the most important
limitation on private ownership and since every restriction of ownership has to be in
harmony with certain legal procedures necessary for the expropriation to take place.
The other most important limitation on expropriation is it has to be carried out for
public interest (Art. 1460 and Art. 40(8) of the FDRE constitution). This term is one
of the most elusive words of law. One writer has described it as " unrolling horse".
The idea is that the horse is analogous to the government while the rider is analogous
to the public. The rider (people) could not guide the horse. It is the horse, which
rather guides the people; the people have no check over the government. Even if we
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may not push the idea to this extreme, the writer has a grain of truth in the senses that
this term is susceptible of abuse and it is imprecise in meaning. Some truly say that
the concept of public interest is dynamic and relative to place, time, community,
ideology and the role of the government. The elusive nature of the notion of public
interest does not mean that we do not have any approach to it. If we base ourselves
on the Amharic version of the heading of section 2 of chapter 1 of Title IX of the
Code, we understand public interest to mean: the property taken away from
individuals through expropriation has to be left at the disposal of the public at large or
the construction undertaken in the place of the property so taken has to be accessible
to the people. According to this understanding the authorities invoke the tool of
expropriation to lease out the area to investors or for the purpose of establishing a
public enterprise. Then this will be a flagrant case of non-compliance with the public
purpose test of expropriation. This approach to public interest is very narrow since it
tends to mean direct use by the public. Incidentally, there is disparity between the
English version of section 2 Chapter 1 of Tittle IX which is entitled. 'Expropriation'
and the corresponding Amharic version which reads "le'hizb ageligilot yemiteqmu
habbitochin silemasleqeq". Setting aside argument from the Amharic version of the
section under discussion, the Code has devoted a separate Article to highlighting this
notion of public interest. Expropriation may not be set in motion for the sole purpose
of generating money [Art. 1464(1)]. Expropriation may bring to the treasury of the
government only; but that has to be money incidental or consequential to another end;
this proceeding may not be used to enrich the coffer of the government. Yet there are
other motives than getting money. For example, there may be political goal, social
end, military goal, etc. To which end the Sub-article under focus refers us to? It
appears to say that expropriation could be used for any end, as long as that end
promoted national or local welfare, other than excessively collecting money. Sub-
article 2 of Art. 1464 see is an exception to the first Sub-article since it justifies
invoking expropriation for the purpose of generating revenue. As to the modus
operandi of this Article, there must have been public works in the area
(infrastructures) and owing to these public efforts the value of the plots of land
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increased. In order to gear such increase in value towards public use (for example by
using the money to build schools or hospitals or other social facilities or
infrastructures) the government would take the plots whose value so increased
through expropriation and give them to investors. What is the basis of this
exception? Does it connote the idea that the individuals should not enrich themselves
at the expense of the public. What should be the extent of the increase in value of the
plots or the buildings thereon to justify expropriation? Should it be considerable or
even a slight increase? Does Art. 1464(2) relate to unbuilt land or does it encompass
both built and unbuilt plots? The Lease Proclamation (80/93) approaches the public
interest differently. This is a matter of interpretation. It is said that in expropriating
property the public interest limitation would not be transgressed if its sole purpose is
to generate money. This is an argument from the preamble of the lease proclamation.
According to this preamble, cities in Ethiopia are very backward in respect of social
facilities and infrastructures. And in order to secure these things they may lease lands
within their jurisdiction and use the revenue so generated for that end. So what is
precluded by the Civil Code Art. 1464(1) is upheld by the Lease Proclamation. The
scope of expropriation as per the Lease Proclamation will extend only to unbuilt
urban land, areas, which have already been used for constructions other than dwelling
houses and dwelling houses transferred for consideration or as a donation. The
Master Plan Proclamation by itself could be considered as expropriation for public
purpose. In other words, the authorities invoke the implementation of the Master plan
when they expropriate a certain section of (for example). Addis Ababa that may be
considered to have met the public interest test.

10. We have pointed out the idea that the Ethiopian law of expropriation approaches
expropriation as a procedure. The first step is making inquiry (Art. 1465). This is
consulting about the contemplated project. It is in the nature of a transparent
government. This procedure is to be employed the to secure opinions from the
public; checking whether the public go for or is against the intended expropriation.
Opinions or views of any person interested in raising his/her opinion should be
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welcomed [Art. 1465(2)]. The modality and the time of making such inquiry should
be determined by a regulation to be issued by the authority going through
expropriation proceedings (Art. 1465(3). The making of this inquiry is not mandatory
[Art. 1465(1)]. The competent authority is to make the inquiry if it appears to it
necessary to do so. Suppose inquiry under a given case of expropriation is necessary,
but the relevant authority has disregarded it? Suppose inquiry has been essential and
the authority has made such inquiry. The pool of public views is very much against
the contemplated expropriation. And despite such opinion, the authority has kept on
taking the property, what should be the remedy against the public, if any? These
questions are left an unaddressed.

The second procedure is making a declaration to the effect that the planned
expropriation serves public interest; this is a mandatory step. (Art. 1463). This
declaration is to be made by the competent authorities. If we follow the procedure
envisaged by the 1955 Revised Constitution, the manner of the declaration is: a
competent authority would prepare a notice stating that the project would serve public
interest, this would be submitted to Council of Ministers for approval and upon
approval it would be published in the Negarit Gazetta. The next procedure is
identifying the immovable subject to expropriation [Art. 1466(1)] Sub-articles 1466)
2&3) state that full owners, bare owners and usufructuaries must be notified by the
competent authorities individually; the authority is also duty bound to let them
express their views on the need for the intended expropriation within a reasonable
time to be fixed by such authority. Procedurally, when must the tasks of personal
notification and gathering of the views of the owners (bare or full) and usufructuaries
be made by the competent authorities? Should they be carried out together with
inquiry? We think that these tasks should be accomplished when or after the task of
identifying the immovables subject to expropriation simply because the procedure of
inquiry is discretionary while the tasks under Sub-articles 1 and 2 of Art. 1466 are
mandatory, may not be set aside. The fourth step is issuance of expropriation order
(Art. 1467). The basic function of the order is to transfer title to the competent
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authority free from any charge such as servitude, usufruct, habitation, right of
preemption, 'promise of sale and right of recovery. This does not mean the authority
will take over the possession of the immovable subject to expropriation upon
issuance of expropriation order. In fact, Art. 1478(1) clearly precludes the competent
authority from entering into possession of the immovable before it pays the
compensation fixed by the Appraisement Committee [see also Art. 1478(2)]. The
third parties (that is persons other than the owners in whose favor the charges
mentioned above (particularly usufruct and servitude) are entitled to demand
compensation either from the competent authority or from the owner on the
compensation paid to him/her or about to be paid to him/her [Art. 1467(3)]. Service
of expropriation order is the fifth step [Art. 1468]. The order is to be given to owners
and to persons having interest on the immovables if their (the latters) rights have been
entered in the register of immovables [Art. 1468(1)]. Does this Sub-article imply
that the order shall be given to owners regardless of the fact that they have entered
their title in the register of immovables? As per the second Sub-article, the order is to
be served on third parties (even if their rights on the immovable have not been
registered) as long as the owner has informed to the competent authorities the fact
that these third parties have interest on such immovable subject to expropriation. The
last steps are fixing and payment of compensation and taking over of the immovable
by competent authority.

11. The owner and other interested parties to whom expropriation order has been
served, are expected to communicate to the competent authority the amount of
compensation they claim within one month to be calculated from the date of service
of the order (Art. 1470). The competent authorities may not accept the amount of
compensation proposed by the owner and persons having interest on the immovable
being expropriated. In this case the compensation has to be fixed by an arbitration
appraisement committee (Art. 1472). The Code does not tell us in clear terms as to
who will establish the committee or whether the owner and other interested parties do
have the right to appoint part. of the members of such committee or not. Art. 1473(3)
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provides that the composition of the committee and its procedures shall be as
prescribed. Who shall carry out the task of prescribing such matters? The
committee's sole jurisdiction is to fix the amount of compensation that has to be paid
by the authority. It cannot delve into the substantive aspect of the expropriation
before it. [Art. 1473(2&3)]. The principle the committee shall follow is actual
compensation not full compensation [Art. 1474(1)]. Since the land to be given in lieu
of the expropriated land or the amount of compensation to be paid has to be equal to
actual damage caused as a result of the expropriation, consequential damage is
disregarded. Loss of profit and cost of transportation are not considered. In
rendering its decision, the committee takes into account: (a) " any statements which
the parties concerned may have previously made regarding the value of the property
or rights expropriated [Art. 1475(1)]. This can be secured from tax authorities or
mortgagees. And the increase of value of the immovable being expropriated on
account of the construction of public works has to be taken into consideration [Art.
1475(2)] seen together with Art. 1464(2), this latter factor is to be taken into
consideration to prevent the owner and other third parties from enriching themselves
at the expense of public at large and this would lead to decrease in the compensation
to be awarded. On the other hand, the committee is prohibited from taking a couple
of factors into consideration in fixing the award. In order to squeeze maximum
compensation out of the competent authority, the owner may undertake construction
and make improvements on the immovable to be expropriated after expropriation
order is served to him/her. [Art. 1476(1)]. This Sub-article is a disincentive against
such mean calculation. Nor shall the committee take into account any speculative
increase of value arising from the announcement that public works are to be
constructed [Art. 1476(2)]. The amount of compensation to be fixed by the
committee is that which is assessed on the day when it makes its decision [Art.
1474(2)].

12. The decision of the Arbitration Appraisement Committee is appealable [Art.
1477(1)]. So either the competent authority or the persons whose property have been
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taken away or both could lodge appeal in the regular court on the question of the
amount of the award. This appeal has to be made within three months from the
decision of the committee having been served on the interested party [Art. 1477(2)].
In case where the appellant is the owner, the competent authority may take over the
immovable provided they have paid the compensation fixed by the committee. [Art.
1478(2)]. This is so perhaps the intended project may be very urgent and time is
necessary before the court to which appeal is lodged comes up with a decision.
Would the same consequence follow where the appellant were interested parties (e.g.
usufructuaries) other than the owner? This as it may, the court may increase the
compensation; it cannot however reduce it. If the court increases the amount the
authority has to pay the same within one month from the judgment having become
final [Art. 1479(1)]. So is in case where additional compensation in cash is granted to
the owner who was given land in substitution for the expropriated land [Art. 1479(2).
The court is precluded from reducing the compensation against which appeal lies in
case where the appellant is the owner. In case where the competent authority lodges
its appeal against the amount of the compensation fixed by the committee, the
expropriation order may not be executed until the court makes its decision [Art.
1478(4). The latter limb of this statement seen together with the corresponding
Amharic version clearly suggests that the authority may not take over the possession
of the immovable until the court makes its decision that is, the owner will remain in
possession of the immovable pending the decision. Supposing that the court has not
rendered judgment within one year from the date of lodging of appeal, the
expropriation would be considered as if it did not take place. This means the
ownership title transferred to the competent authority up on issuance of expropriation
order [Art. 1467(1&2)] would be set aside. Objection to the payment of the
compensation to the owner may be made by any interested third parties then
competent authority is given the right to take over the possession of the immovable
after having deposited the amount [Art. 1478 (5)]

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13. Full owners or bare owners do have a right of preemption if the competent
authority abandoned the project intended to be carried out in the place of the property
expropriated. [Art. 1483]. This preferential right has to be effective even if it has not
been entered in the register of immovable as the owner is to exercise his/her right of
preemption against third parties within one year from the authority reselling the
immovable or granting to such third party on the immovable a right incompatible
with the carrying out of the project [Art. 1484(1)]. So the knowledge of the
beneficiary of right of preemption does not matter; nor is the competent authority
obliged to communicate the fact of reselling the immovable or creating aright on the
immovable incompatible with the planned project. Assuming that the beneficiary has
succeeded in invoking his/her right of preferential right, he/she will be obliged to pay
the amount of compensation he/she received at the time of expropriation regardless of
price fluctuations [Art. 1484(3)].

14. Types of expropriation- expropriation may be total (entailing the surrender of
one's total immovable) [Art. 1460-1468 and Art. 1470- 1479 and Art. 1483-1484]. It
may be partial leading to part of a plot of land or a building (Art. 1469). There is also
conditional expropriation [ Art. 1480 - 1482 ]. Indirect expropriation is provided by
(Art. 1485 - 1488).

Review Questions

1. Is a market place within public domain pursuant to Ethiopian Law of property?
2. Under Ethiopian law, are antiques in the hands of individuals in the public
domain?
3. Is the Ethiopian Civil Service College or Addis Ababa University within the public
domain?
4. In Ethiopia a public park is in the public domain. May a private citizen open shops
or recreational centers in public parks? How?
5. Pursuant to Art. 1448 of the Civil Code, an ancient cross is in the public domain.
This cross is lost. Ato N has found it. He has attempted to search for its owner,
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but in vain. The cross has been in his possession for the last 20 years. Can we
consider him an owner of the cross?
6. Assume that the cross has been stolen from Ato N. Suppose further that Ato N has
come to know the person in whose hand the cross is after seven years. Can Ato N
reclaim the cross?
7. Assume Ato N has come to possess the cross as a custodian, would your answer to
questions no 5 and 6 differ? Why?
8. Is there a material difference between the English version and the Amharic version
of Art. 1445.
9. Identify and explain the tests adopted by Art. 1445
10. Is there any disparity between the two versions of Title IX? Explain.
11. Why does Art. 1455 say nothing about acquisitions through occupation and
accession?
12. Is there a distinction between expropriation and alignment? Does Art. 1453 tend
to converge the two concepts?
13. Are the illustrations under Arts. 1446-1448 enumerative (non-exhaustive)?
14. Presently land in Ethiopia is an item of public domain. Do you agree? Why?
15. "Regardless of its ideology, a state necessarily has property. The extent such of
state property may expand or shrink " To what extent you agree?
16. "We can theoretically, even though not practically, live without public domain."
Argue for or against this statement.
17. " We cannot have a definitive or exact criterion which would enable us to
differentiate public domain of state from its private domain. We have simply
guidelines." comment.
18. Things in public domain are unsusceptible of private of ownership. Comment.
19. Nothing (no subject matter) on this earth is unsusceptible of private ownership. It
is the desire of man, as expressed through law, which designates certain things as
public not their inherent character. Comment.
20. There is disparity between the Amharic and English versions of Art. 1449(2) of the
Code Discuss.
199
21. What does "forthwith" mean in Art. 1451? Does it mean that the competent
authority will not be expected to follow expropriation proceeding?
22. Is public domain necessary? Can we live without it?
23. M.Ducrocq ,in criticizing some writers who consider things in public domain as
jointly owned ones, said:
" If the citizens were the owners of the national or communal property, they would be
entitled to ask for its partition, for they would be the owners of undivided property
and nobody can be forced to remain in division The result would be the
spoliation of future generation and the destruction of the domain of the state in
favor of the generation then living" Comment".
24. Art. 453 of the French Civil Code states: " public things are those the property,
which is vested in a whole nation and the use of which, is allowed to all members
of the nation" does this apply to public domain in the context of Ethiopian civil
Code?
25. What is the relationship between Art. 1445 and Arts. 1446-1447 as well as Art.
1255?
26. In the presence of Art. 1445, would not Art. 1448 be redundant?
27. Do the words " placed at the disposal of the public" under Art. 1448 mean
displaying antiques in museums to the public?
28. Do buildings such as mosques and churches belong to state or other administrative
bodies?
29. Why does Art. 1455 say nothing about occupation and accession?
30. Is the limitation imposed upon an owner under Art. 1452 a legal servitude in favor
of roads or streets (which are public domain things)?
31. Art. 1449(2) seems to give the power to fix compensation or even whether
compensation should-in the first place be given to owners or not is given to courts.
Why does the Code leave this issue to the court or why should not the code give
this task to Arbitration Appraisement Committee mentioned in Art. 1472 instead?
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32. Marcel Planiol wrote " in reality, outside of the atmosphere, and the waters of the
ocean, there is nothing upon this planet which by its nature cannot be appropriated
for the profit of man" Comment.
33. Marcel Planiol says " Inalienability and imprescriptiblity are a natural and usual
consequence attached to things of the public domain, but not inseparable from it"
Comment
34. Old French writers argued that " things in the public domain are by their very
nature unsusceptible of private ownership since they were very much concentrated
not on the principle but on the consequence drawn from it and the fear of
extending the scope of inalienability and imprescriptiblity". Do you agree with this
idea?
35. Make a distinction between public domain and indivision (co-ownership).
36. " Serategna Sefer" ( \t \fR ) and 'American Gibi' (xN Gb! ) are areas in
Addis Ababa. Houses in these sections of the city are shanty clustered and
unplanned. The owners of these houses are low-income people and usually cannot
afford to pay tax. Addis municipality (the urban works and Development Bureau)
has planned to remove these people and lease the area to investors who have
offered very attractive prices. The inhabitants are not willing to comply with the
proposal of the Bureau on the ground that the latter's offer does not meet the public
interest limitation. Would the people succeed?
37. In the above case, assuming that you are a lawyer of the Bureau and assuming that
the head of the Bureau wants to know the whole legal steps in taking the property
of the inhabitants what would be your advice?
38. The Dire Dawa City Government has planned to construct a stadium. To that end
it wants to expropriate all buildings in Number one Sefer ( nMbR N sR). The
inhabitants of this part. of the city have argued that a stadium is not a public
domain, it is a private domain and thus have expressed their unwillingness to
accept the plan of the authority. Is their argument sustainable?
39. Assuming that (in question no 3 above) the authority has succeeded in its decision
to remove and further assuming that it has made declaration of public interest but
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no public inquiry has been made, would failure to make public inquiry amount to
procedural irregularity in the expropriation proceedings?
40. The Ethiopian National Museum has planned to collect antiques under the
possession of individuals since a recent research it has conducted has revealed that
there are several such objects in the hands of citizens and foreigners. The head of
the Museum has intended to achieve this purpose through expropriation
proceedings. Would the Museum succeed in its venture?
41. A certain Chinese company is presently constructing the Ring Road of Addis
Ababa. This company has found it necessary to remove 40 buildings through
expropriation. The owners of such buildings have argued that the company has no
authority to undertake expropriation proceedings. Is their argument acceptable?
42. " Expropriation is an inherent right that; the state has reserved the right (power) to
take private property; when the state exercises this power, it is merely taking what
it has" Argue for the validity or otherwise of this proposition.
43. "A state is taking what it never has had when it invokes its power of expropriation,
it is not retaking what it has" Do you support this statement?
44. "No aspect of state property may be subject to expropriation proceedings" Is this
statement valid?
45. Distinguish expropriation from
45.1 taxation
45.2 police power of the state
45.3 confiscation
45.4 nationalization
45.5 requisition
46. " The poorest man in his cottage could defy the king: storm may enter; rain may
enter but not the king" Is this statement relevant to the discussion of
expropriation? How?
47. " The king not only may enter but may remain in the name of the general good
indeed for the very purpose of keeping the rain out" Is this proposition related to
law of expropriation?
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48. In 1907 Emperor Menlik II decreed that: " Slkt dHNnT mNG|T klmC
cWN wYM Xk#l@WN mGT yfqd XNdn bWM WS_ b@T s!R lb@t$
lmNG|T bGD YsL yb@T y xqEC XNdgmt$T mNG|T YkFL ngR
GN XNl mNG|T yb@t$N U klb@t$ UR tSM YkFL wYM l@ yKSN
ngR YsL" Comment.
49. The application of the law of expropriation shrunk during the Marxist-regime as
comrade to the situation of the Hailesellase I period, and then this law has attained
its previous position at present time. Comment.
50. The definition of the term public interest is relative to time place and the function
of state. Comment.
51. In defining expropriation the words ' public interest' must be understood to mean
direct benefit to all a citizens of a given country. Do you support this assertion?
52. In question no 16 would you support the proposition if public interest were taken
to mean " any thing which tends to enlarge the resources, increase the industrial
energies and promote the productive power of any considerable number of
inhabitants of a section of the state"
53. Mr. Dunning argues that the limitation of public interest and the need for
development conflict and in order to solve the problem the former should be
discarded. Evaluate his argument.
54. Under Ethiopian law, whether a certain project which entails the taking of private
property-serves public purpose or not is to be decided by administrative authority.
This decision is not subject to any review. Do you agree?
55. Public inquiry is one of the steps that need to be observed in expropriation
proceedings under Ethiopian law. Who must decide on the necessity of inquiry.
Assuming that inquiry is very essential in a given expropriation proceedings and
assuming that the expropriating authority has disregarded such step, would
interested individuals have any means to force the authority to undertake inquiry?
56. Suppose in question no 20, the authority has undertaken inquiry and the result
shows that public opinion is against the proceeding and yet despite that the
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authority has continued the proceedings, would the interested parties have any
recourse?
57. Do you agree with this proposition? Why? The clearest case of expropriation for
public interest is the case of Sheraton Addis Project since the hotel beautifies the
city, since it attracts tourists which in turn means generating income and since it
offers employment opportunity to the unemployed.
58. The Addis Ababa Municipality issued an Internal Regulation in 1978. One of its
Article is reproduced as: ". lqdW xgLGlT XN!WL s!wsN l YW
lWN Sr bQrB lxF# wgN xDRg Srkb w!Wn# l# GMT
YkflL ngR GN bQD b@t$N lm|T XQD lW kl# GMT 50 pRsNT
tkFlT qWN 50 pRsNT b@t$N bZRZR XNSrkb YkflL ." Comment.
59. The Ethiopian Law of expropriation makes a distinction between injury made to
property and injury to property owner whose property has been taken away. Thus
he would not be compensated for such consequential damage, as loss of profit, cost
of movement, interruption of business, etc.
60. Some argue that the extent of compensation in the case of expropriation is the
market value of the thing being expropriated; this is inferable from Arts. 1475(1)
and 1474 of Code. Do you concur with these assertions?
61. Distinguish Art. 1460 of the Civil Code from Art. 40(8) of the FDRE Constitution.
62. It is observed that the current practice in awarding compensation adopts the cost-
less depreciation formula. Is this in line with what the Code envisages?
63. In the case between Medehanialem Catholic Church V. Private Owners, the
defendant requested to Addis Municipality to give it the land adjacent to the same
(churches for the purpose of constructing a rehabilitative institution for the poor).
The Municipality accepted the request and proceeded to grant the church with the
land occupied by several people. The dwellers refused to evacuated and petitioned
to regular court for cessation of interference on the ground that a church is a
private institution and the purpose of expropriation is not public purpose. Rule of
the objections of the petitioners. (High court A.A. 1982 E.C. Civil Case No. 4/85
(unpublished, as quoted in Rebecca P.49).
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64. In Worku Kumbivs. The Municipality (High Court A.A. 1986, Civil Case
2981/86, unpublished), the plaintiff has a plot of land along the Ring Road, the
defendant has to decide to take such land away, the former objected on account of
absence public purpose. Comment.
65. What is the difference between expropriation envisaged by the Federal Lease
Proclamation and expropriation provided by our Civil Code?
66. Would expropriation carried with the view to implementing the present Master
Plan Proclamation amount to Compliance with the test of public interest?
67. Are Arts. 1467 and 1478 in harmony?
68. The government has nationalized land among others, to exonerate itself from
paying compensation when it expropriates land for public interest. Is the
proposition valid?
69. In Art. 1466(2) there is no need to collect the views of owners since the
expropriation of their property for public purpose is compulsory despite their
objection. Do you support this proposition?
70. Does a person whose property is being expropriated have a say in the appointment
of Appraisal Arbitration Committee?
71. Ato Hamid has a bar in the town of Jijiga. He wants to convert this bar into a large
recreational center. This project entails the removal of the entire population of one
of the kebeles in the city. Would it be lawful for the municipality of the city to
employ expropriation proceedings in order to remove the people? Why?
72. Would property belonging to international organization and embassies be subject
to expropriation?
73. There are 10 farmers in the remotest part. of Gojam. EELPA wants to construct a
dam. For that purpose it has found it necessary to take away the plots belonging to
these farmers. There is no property on such plots, be it plants crops or huts. The
authority agrees that since land belongs to the government and since there are no
improvements or other property on such tracts of land, the farmers deserve no
compensation either in cash or in kind. The farmers, on the other hand, argue that
205
since they have the right to use their respective plots, they are entitled to
compensation be it in cash or kind. Come up with a decision.
74. Would Art. 40(2&8) of the FDRE constitution be useful in disposing the case in
question no 38 above?
75. What is the underlying reason for the exception under Art. 1464(2)?
76. Does Art. 1464(2) exclude built tracts of land?
77. Why does Art. 1466 exclude beneficiaries of right of recovery, right of preemption
and promise of sale?
78. Can we infer from Art. 1474(2) and Art. 1470 the idea that the extent of
compensation to be awarded is the market value of the property expropriated?

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11. Notes on Registration of Immovable
Property
(Arts. 1553 - 1646 and Arts 3363 - 3367)
Corporeal goods are dissected into movables and immovables if we read the Amharic and
English versions Art. 1126 of the Ethiopian Civil Code. One basis motive for this
dichotomy is to have different mechanisms of transfer. If we concentrate on movables,
we have ordinary movables and special movables as implied from Arts. 1186 (2) 2267
and 3047 of the Civil Code. For transfer to take place in relation to ordinary movable the
requirements are: juridical act or law and delivery which leads to possession (Art. 1193
and Arts. 1186(1), 1184 and 3374 of the Code) In the case of special movables (motor
vehicles, business, ships, aircraft, etc.), on the other hand, we need to additional
requirement: registration or securing title deed).

It is to be noted that when we use the legal term transfer it does not merely mean the
handing over of a material thing to the transferee; it rather means enabling the transferee
to enjoy the series of powers the transferor has been enjoying over the subject matter of
the transaction; for example, in the case of transfer of an immovable it means the right to
use, collect fruits, to manage, to create rights in rem (mortgage, antichresis, servitude,
pre-emption, usufruct, etc) are to flow from the transferor to the transferee.

For these bundle of rights, power and privileges to flow to the transferee, certain steps are
necessary in the case of immovable: juridical act or law, the juridical act reduced in
writing which is to be signed by the parties and attested by witnesses, registration, and
issuing a title deed in the name of the transferee Arts. 1723,1727, 1728,1184, 1185 and
1186).

What is to be registered in the language of Art. 1185? Arts. 1553-1646 provide for the
matter to be registered, where to be registered, the structure, duties and powers of the
person in charge of registration and the legal consequences of registration. For example
as per Art. 1567, What are to be registered in the registers of immovable property are all
207
acts whether their source be public or private which purport to create, modify, or establish
ownership. Further those acts which purport to create or extinguish rights in rem such as
usufruct, habitation, pre-emptions or promise of sale or mortgage are to be registered
(Art. 1568 and 1569). Arts. 1570-1586 provide for acts to be entered in the registers of
immovable property.

The legal consequences of effecting registration are set forth under Arts. 1561-1564, and
Art. 1637-1646).

Arts. 1553 - 1646 dealing with the several aspects of registration of immovable property
have been suspended perhaps mainly because of economic constraints by Art. 3363(1). In
their place Art. 3363(2) provides that Art. 3364 - 3367 should be applicable. These
transitory rules concentrate on two methods of solving the problem of registration:
reliance on customary rules in existence prior to the issuance of the code or those
customary rules, which have or will come into the picture after the Code.

Review Questions.
1. If in the absence of registration, the seller of a certain house is still an owner and
thus, capable of transferring it to another person even if the contract of sale has been
made in writing, attested and signed by the parties, the purchaser has paid the whole
price and took possession of the house. The third party will acquire title despite the
fact that he was very much aware of the transaction made with the first purchaser if
this third party effected registration first. Argue for or/and against these statements.
2. Absent registration, a purchaser of an immovable property will not get a right in rem.
Do you agree? Why? Why not?
3. What considerations, do you think, were behind suspension of Art. 1553- 1646?
4. How practical is the solution adopted by Art. 3366 of the Code?
5. What do you think is the justification behind making a distraction between movables
and immovables on the bass of the made of transfer under Ethiopian law?
6. What is the legal meaning of transfer?
208
7. Do you think that Arts. 1553-1646 be made operative?
8. What is the meaning of the term 'easement' under Art. 3365? Do you think the
legislature is consistent in this regard?

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12. Literary and Artistic Ownership
12.1 Original Works Arts. 1647, 1662 & 1663
Under Art. 1648 the Civil Code lists works of the mind without defining what "works of
the mind" are. The list is so deceptive from codified law orientation point of view that it
looks to be exhaustive. But those that are under the list are only part of what we call
works of the mind and the latter is so broad that all intellectual property are said to be
works of the mind. They are 'intellectual' as they are creations of the human mind and
they are 'property' as legal rights over such creations of the human mind are exercised.
But these creations are not only literary and artistic works.

Intellectual property is generally classified into industrial property and copyright. Both
are creations of the mind. Industrial property are creations of the mind having
commercial and economic value while copyright is a right of an author in relation to
literary and/or artistic works having mainly cultural and educational value.

Industrial property may be further classified into patent, industrial design, trademark,
trade names, appellations of origin, and indication of source all of which involve some
sort of mental activity. These properties are governed under different branches of law for
different reasons.

Patent, the counterpart of copyright, is a legally enforceable right granted by law to an
inventor to the exclusion of others from certain activities such as the production (and
importing of an identical) item for a specified period.

Industrial design is an industrially applicable ornamental or aesthetic aspect of a
marketable product. Trademark (including service mark) is a sign used in connection
with goods and services (i.e. trade mark for goods and service mark for services). Trade
name is a name or designation, which identifies the undertaking or the enterprise.
Appellation of origin deals with the denomination of a country, a region or a place from
which the product originates as it sometimes designates quality; such as Ambo, Bure or
210
Babille mineral waters. Indication of source indicates the source of the product such as
'made in Ethiopia or Japan'. From among these lists of works of the mind patent and
industrial design have industrial value and are protected as such under the patent law
(Proc.123/1995), while the rest have only commercial value and are not protected as such
but for the protection of consumers through, such as, unfair competition. But copyright is
our topic here.

Copyright is governed by Arts. 1674 -1774 along with its cross-references, Arts. 2672 -
2697 and 2027 - 2187 among others. Copyright is an ownership right granted to an
author of a work of the mind, which is either literary or artistic in nature or both. It is an
exclusive right exercised by the authors which emanates from the nature of ownership.
The word copyright is a common law usage while our Civil Code employs the phrase
"incorporeal right." As we have seen in our prior discussions
the phrase "Incorporeal

right" is absurd, as all rights are incorporeal in nature. But essentially the owner of work
of a mind exercises his ownership right over an incorporeal object. Thus the rules on
intellectual property operate separate from other rules governing physical (corporeal)
things or goods. This implies the distinction between ownership of the physical book and
the author's right. You might buy the book entitled "Fikir Eske Mekabir" and be an
owner of that particular copy which you have bought. The expressions, the plots and the
story in the book are of Ato Haddis, the author. Under this section we are not talking
about your right which extends only to a particular copy of the book but that of the
author. Hence, the rules governing literary and artistic work operate independently and
distinct from the rules those govern ownership of physical objects in which the work is
embodied and thus the right of the author from the right of the owner of the material
object i.e. the story distinguished from the paper, the portrait from the canvas, the song
from the cassette tape. It is not prohibition of physical interference or that kind of activity
but, it is permission and prohibition of certain kinds of activities for two classes of
people, the author and his agent or heirs as owners of the intangible on the one hand and
third parties including owners of the material objects in which the work is embodied.

See the discussion on classification of things into corporeal and incorporeal

211

The author has a bundle of rights to exercise in the book you own while it still remains
yours. The fact that you buy a copy of the book does not affect the rights of the author
though it is sometimes difficult to trace violations and enforce the rights. And you don't
have the author's rights over the book by the mere fact of acquisition of such a copy, nor
can he demand the book, which you already paid for from you. Yours right is
independent of his right.

The author has those bundle of rights by the mere fact of creation and no other
requirement. Creation signifies the involvement of an intellectual activity. The
requirement here is not novelty as in the case of patent but originality that the work
originates from the mind of its author who claims copyright. Two persons might have
similar works, which reflect their imagination and appreciation of the fact before them.
The work may be dealing with the same cultural, social, factual or geographical setting,
such as a competition to write a national anthem, or to paint a national emblem. The
works may be written or painted with different cords or expressions or mix of colors in
different grouping and ordering of facts and events. Each of them remains authors and is
entitled to the protection thereunder. Because what is important here is not the idea as
everyone might know it and it is impractical to prohibit others from having it but the
expression and mix of colors or the musical arrangement for the respective works. Along
with creation, authorities argue for originality. If a work owes its origin to its author and it
is not a copy of other works the requirement of originality such as which is provided for
under Art. 1648(e) is superfluous as a work the creation of its author is original ipso
facto. Hence originality may be seen as an aspect of creation.

The word "original" is significant in the discussion of making a distinction between
primary and derivative works as the primary works are original works by the original
author as his creation while derivative works are works resulting from some involvement
of intellectual activity by another author over the original work. The book ' Fikir Eske
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Mekabir' is an original work and protected as such, but it may also be translated or
adapted by another author, which is protected for that other person.

When we discuss about creation with respect to, such as, books and musical or theatrical
works it might deceive one to conclude it is the result of mental activity solely. We
cannot have a place for photographic and chromatographic works. Hence, we can
understand creation in the sense employed under literary and artistic ownership as
combination of physical things (events) and human talent. Thus one who makes a
photograph of the Semien or Bale Mountain or the Blue Nile fall he is making photograph
of the natural (geographical) layout of the said area but from his preferred point of view
which inevitably is a similar but distinct image of it from what has been taken or made of
it before.

However, for a photograph to be protected it has to form part of a collection or is
published in a book, and in other cases it has to bear the name and address of the author
(practically the photographer) or his agent; otherwise it is not protected.

The nature of the work may either be literary or artistic; it may be in a written form,
recorded, or otherwise. It may be brilliant scientific work or children's book or any other
worthless tale. It may be prepared for education, for exhibition or to damp it simply. The
author has the right regardless of the nature, form of expression, merit or purpose of the
work.

Again the author has these rights whether he executed the work in the performance of an
employment contract, whether it is related to the work (of the mind) or not, or, a contract
for the performance of a project entered into with third parties.

Art 1648
It is not only book in respect of which copyright may be granted and exercised but the list
which is provided for under this Article is so varied that it includes all literary and artistic
213
works. Authorities make a distinction between these two classes of works that literary
works are those, which are written, spoken or sung which, include graphic, drawing,
diagram, chart etc. Though the law seems to have made such distinction as for instance
Sub-art. (a) seems to provide only for literary works for the clause goes "Literary works
such as..." which is made clear by the Amharic version to be such literary work, the law
in fact does not make such a distinction. It rather makes only the list of works that are
protected by law. These are books articles in reviews and newspapers, lectures, speeches,
sermons, theatrical or other dramatic works, musical compositions with or without text,
dramatic musical works, radiophone or radio visual works, choreographic works or
pantomimes the production of which is reduced to writing or otherwise, the works of
figurative arts such as drawings, paintings, engravings and sculptures, photographic and
cinematographic works, illustrations, maps, plans, sketches, plastic works pertaining to
geography, topography, architecture or other science and any work created by the
intelligence of their author.

12.2 Derivative Works Arts. 1649-1651
In the above discussion we discuss about works of the mind as created by their original
authors. But the law provides also for the protection of derivative works as original
works. These are translations, adaptations and compilations. Hence, it has been provided
that "translations, adaptations, musical arrangements and other renderings of a literary or
artistic work" and "collections of literary or artistic work... which by the choice of
arrangement of material constitute intellectual creation" are protected. An original work,
for instance, may be written in English or French. To make it accessible to domestic uses
depending on the purpose of the work and form of expression, it may be translated into
Amharic or other national languages. Translation in only change of language but it is
protected as an original work. Adaptation on the other hand involves only a change in the
form of expression. For instance if the Ethiopian film corporation adapts the book 'Fikir
Eske Mekabir' into a film work, or the National Theater adapts it into a theater or drama
work, the film, the theater and the drama are protected as original works. It is first the
presentation of a given literary or artistic work presented in a specified type of expression
214
by a different form of expression. The same goes to collections of literary and artistic
works. If a person collects works of different authors on a specified field of
specialization creating his own organizational arrangement so that his collection would
convey a certain idea, or achieve a certain purpose, that work is protected as such.

However, these latter works are protected without affecting the rights of the original
author (which we are going to in our subsequent discussions under Arts. 1654) and we are
having here two separate and distinct rights: the right of the original author and of the
author of the translated or adapted work.

There are exceptions to this rule however that, however excellent the work may be, it is
not protected in the case of government works such as legislative, administrative and
judicial works. In its normal discharge of the duties incumbent upon it, the legislature
makes laws.

Along with legislative proceedings these laws are published in the Negarit Gazeta so that
every body may read and conform to them. There are many experts behind the curtail
endeavoring to come up with such legislation. Though their effort squarely fits under Art.
1647 and 1648 they are not protected. The whole purpose of such publication as a
proclamation and regulations and non-protection is to make the law known to the public.
This objective very clear when it comes to criminal law that ignorance of law is no
defense (Art. 78 Pen.C.). The same goes to administrative texts. Each administrative
agency may issue regulations and circulars and some of them adjudicate cases in relation
to the powers and duties that has been conferred on them. These things have to be open
to the public. There is also what we call accountability of government. For the
achievement of these objectives, these works have to be free for reproduction through
different media. The same goes to judicial texts that cases are tried and disposed of
publicly. The judge with all pains writes the judgment by combining the law, the facts
and the evidences. This certainly is a wonderful work but he cannot claim copyright over
it. Whoever wants to reproduce these works can do freely.
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12.3 Elements of Copyright.
There are two theories advanced with respect to the right of authors or copyright holders.
In the Anglo-American approach a copyright holder has the right to copy a right which
include everything the person wants to have protected. It is the law that grants the right
once the first copy exists i.e. the right to print and reprint his work. The other theory is
the labour theory formulated by John Locke and developed in the continental system that
the author has a natural right over his work by virtue of his labour. This right unlike the
one in the Anglo-American approach, under the natural right theory has two facets:
economic and moral. The economic facet of it is the right to produce, reproduce, to
authorize adaptation and translation while the moral right includes what are commonly
known as paternity right, the right to integrity of the work, the right to create to publish or
not and to withdraw a work. Such classification is inexistence in the Anglo-American
system. The author's economic right is protected under copyright law while his moral
rights are protected under other branches of law such as tort law.

As drafted by a French professor grown up in the continental tradition, the Ethiopian
Civil Code provides for a list of economic and moral rights of authors.
12.3. 1 Economic Rights of the Author
Economic rights of the author are mainly the right to control and exploit the work. It
pertains to the pecuniary interests of the author to compensate and award him for the
work he has produced and for the expenses he has incurred. The main ones stated in the
Civil Code are the right to production, reproduction and authorize the adaptation and
translation of his work.

None of these rights are, however, defined under the civil code, the law only reserves the
rights to the author. When we resort to literature's of other systems from which our law is
derived, production includes the performance, recitation and presentation of a work.
Performance is a scenic show of dramatic or dramatic-musical work; recitation is public
reading of a literary work; execution is the rendering of non-dramatic musical works; and,
presentation is exhibition of works of figurative arts. The Amharic version of this article
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(Art. 1653 (1)) confines the right of the author, production, to visual presentation of his
work. It seems for lack of words and the fact that sometimes the English words
production and performance used interchangeably might justify the mistake.

Right of reproduction is a material fixation
of a work to be communicated to the public

such as by printing, recording, design, engraving, photography, moulding and by every
process of duplication of a work. It is only the author or copyright owner that may
reproduce a work in any of the methods mentioned above.

As we have seen before, the author has the right to authorize the adaptation and
translation of his work. An adaptation is a work, which derives its inspiration from, and
expressly or evidently refers to the original work. It may be dramatization of a novel. It
is just a change of expressions or the media through which the work is communicated to
the public and it is protected as such. One can imagine that if an adapted work is
protected as such, it may be further adapted into another expression and protected with
the authorization of the original author and the adapter.

However a parody, a pastiche or caricature is not regarded as an adaptation. They are just
forms of criticisms in a numerous way to the extent of ridiculing by imitation of the form
of expression of a work to be criticized.

Parody is a kind of criticism amounting to absurdity. Pastiche is a special form of parody,
which represents style of work without using the exact expressions of the work parodied.
Usually pastiche makes use of the "plots or incidents" of the original work without
distortion. Caricature deals with works of art representing another work with an
exaggeration of body or gestures and features of real or imaginary human being or objects
for the purpose of ridiculing real or alleged shortcomings of the work from the political,
social or moral stand-point for purpose of criticism.
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Unlike what is the practice in other countries the right to authorize translation of his work
is not reserved to the author as he is deprived of the right to object to translations of his
work without his authorization. The a contrario reading of Sub-art. (2) of Art. 1655
gives the impression that consent of the author muse be requested first. But whether he
gives his consent or not it is not material as what the translator required is to state at the
beginning of his work the fact that consent is not secured from the author of the original
work.

Art. 1664
Whether production, reproduction or adaptation it does not make a difference in respect
of violation except may be in the assessment of damage. Whatever it is a violation which
entails the liability of the violator the consequence of which is compensation to the
copyright holder be it the author, his heirs on a third party, such as the publisher, to whom
the right has been transferred.
The discussion on making the distinction among production, reproduction and adaptation
is more important in relation to assignment of the work. Art. 2676(1) to which this article
makes an explicit reference provides "the authorization given to the publisher to deal with
the work in a certain manner shall be interpreted restrictively. Hence authorization to
reproduce or produce a work shall not imply an authorization to adapt it, to modify it or
to authorize its translation (Art. 2680).

Art. 1670
The right over literary and artistic work is a property as any other tangible object for all
practical purposes. Hence it may be inherited by the heirs after his death. What is
succeeded is only the pecuniary aspect of the right. These are the right to authorize the
production, reproduction or adaptation of the work. The right to authorize translation of

To fix a work is to embody a work in a medium, which is sufficiently permanent or stable to

enable it to be perceived, reproduced or otherwise communicated to the public for a period
more than transitory duration.
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the work is not stated may be because it in fact does not have pecuniary value under our
law any more than to show the gesture of cooperation.

The law is explicit however, both in the Amharic and the English text that what has been
given to them is the right to authorize and not to produce, reproduce or to adapt the work
themselves. It looks only to be poor draftsmanship. Otherwise if they are given the right
to authorize others, which is a powers of a principal to appoint an agent, there is no
reason why they should not act the power of the principal wholly, including to act on it
themselves if they have the ability and desire to. Again what is to be transferred to the
heirs is "all the rights and obligations of the deceased which form the inheritance... unless
such rights and obligations terminated by the death of the deceased" (Art. 826(2)). If the
heirs are not able to agree on the manner of exploitation of the work and the
authorization, for the production, reproduction and adaptation of the work, however, the
court shall settle the matter. There are no guidelines, however, how the settlement of
dispute may be handled by the court.

12.3.2 Limits over the Rights of the Copyright Holder.
Arts. 1656 - 61, 70 & 73.
There is no such an absurd thing as absolute right nor are these rights perpetual. They are
limited in terms of purpose and circumstances, and duration as there is a public interest at
stake. Because, like many other legal rights, in copyright, the law tries to strike a balance
between the interest of the author/his heir and the interest of the public in the work. The
two major modalities of limiting the right of the author are exercised in terms of time and
other ways of limiting.
A. Duration.
Arts. 1670(1) and 1672.
Unlike other tangible property, which may be owned perpetually, here ownership is
limited by time. The right to publish, to reproduce, to produce, to authorize the
adaptation of the work is to be exercised by the author himself during his life time (Arts.
1652(2), 53(1) & (2)). Though there is no clear indication as to what "during his life"
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means as there is no limitation stated in the civil code we can safely conclude that it is a
right given to the author so long as he is alive whatever the length of time may be. After
his death, however it depends whether the heirs have right or not; that is, they have the
right only for a period of fifty years from the date of publication.
If the author lived the

fifty years after publication, nothing remains for the heirs. But if he dies few months after
the publication, on the other hand, they have all the fifty years period right over the work.
Likewise, they have a right for fifty years over a work published after the death of the
author. Once the author dies without an heir or the fixed period expires the right does not
exist anymore and the work becomes a public domain. Hence everybody can produce,
reproduce, adapt or translate the work freely.

B. Other Limitations
Another area of limitations are those provided here and there that certain uses of a
protected work are tolerable or they do not constitute infringement of the work. These are
the following:

Parody, Pastiche and Caricature
Art 1654(3).
The first category of these activities are parody, pastiche or caricature. As they are forms
of criticisms they rely on the expressions and plots of the original work. As they
essentially get their inspiration and evidently refer to the original work they are
adaptations. But the law provides that they shall not be regarded as adaptations of a
work. It might have something to do with freedom of expression and free flow of ideas
that the law is encouraging works of parody and caricature.

Art. 1655
Here the law deprives the author, for whatever reason, the right to object to the translation
of his work into another language. All the law seems to imply is that it is good if the

Publication means making a work public and not necessarily printing depending on the nature
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consent of the author is obtained but it does not matter if he refuses. What the translator
has to do is stating the fact, at the beginning of his work, that the consent of the author is
not secured (also may be that the author has refused). The translation certainly affects the
economic right of the author, but the law states it not to constitute an infringement of the
right of the author.

Art. 1656 & 1660 (2).
Private performance of works at a family gathering or a school, which is made free of
charge, is not regarded as infringement of the right of the author; nor a copy or
reproduction of the work made in a single copy intended for private use is regarded as
such. Here there is no economic benefit the author loses nor the other (i.e. the performer
or producer) gains because it is made free of charge. It rather promotes education and the
law is justified in putting such a restriction as the public interest out weighs the interest of
the author.

Art. 1657 & 58.
Works published in the newspapers and reviews, whether printed or broadcast, if they are
of topical interest and not expressly reserved, they may be freely reproduced. When they
are reproduced, however, their source has to be clearly stated always. If it is a daily news
article on current events, however, which is a mere press information, as it is a routine
and mechanical report of facts, nobody can claim authorship and they may be freely
reproduced. As a daily routine work again, speeches delivered in political assemblies, at
public meetings on the occasion of official ceremonies may be freely reproduced by the
press as news within fifteen days from the day on which they were made. The speaker
might have done a brilliant work but the public also has the right to know. On a certain
workshop or symposium, for instance, different experts may be called upon to deliver
speeches on their field of specialization and they may reveal their research findings. The
journalist is free to reproduce extracts from the work or whatever he has got to report to

of the work.
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the public what those experts have said on the workshop about their research finding
within fifteen days.

Art. 1659
It is only for the purpose of reporting a timely news to the public that the work is made
freely available for reproduction in the first two weeks. The right to publish lectures,
speeches and articles in a book form or to issue a collection of the works is reserved to
the author only.

Art 1660(1).
An author cannot in anyway forbid analyses and press review of his work. The public has
the right to know and discern the right from the wrong. No matter how severe the
criticism may be as it encourages merit, it is not regarded as infringement of the right of
the author and it is inevitable to reproduce excerpts of the work for such purpose. Yet the
criticism is directed to the work and not to the individual.

Art. 1661
The last limitation over the right of the author seems to be the right of writers to quote
from the works of the original author. The determination of the right of the former seems
to be absurd that he can make "short quotation" provided they do not exceed in the work
which they are included, forty lines in the case of poetical works or ten thousand letters
(which make a difference in the case of different languages) in the case of any other work.
The question is what if the work is not more than forty lines or ten thousand letters?
Does it mean that the new writer can legitimately quote all the works of the original
author?

Art. 1673(1) & (2).
The other system of limiting the right of the author is through what is commonly known
as "compulsory licensing." In the interests of the general public, public authorities are
empowered to authorize the presentation, reproduction or adaptation of a work which is
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published by the author or his heirs. It is compulsory because, it is made with the
opposition of the author or his heirs and it is license, because it is authorizing a third
party. If the author can work what is sought to be achieved by the public authorities,
there is no need to authorize third parties particularly when the author opposes the
activity. For such process of authorization, the law presupposes the issuance of a
regulation particularly in relation to the form of authorization and the determination of
compensation to be paid to the copyright owner. Hence there are four commulative
requirements that need to be met before a public authority authorizes the production,
reproduction or adaptation of a work.

a) the work must be published; and
b) it must be of use to the general public through the concept public interest
is nowhere defined under the Ethiopian legal system); and
c) compensation must be paid to the copyright owner; and
d) there has to be a special law governing such transaction.
So far we never come across such legislation.

12.3.3 Moral Rights of the Author
Art. 1652

The other aspect of copyright as provided for under the Civil Code is the moral right of
the author. Whether to create a work or not is at the author's will and it is his natural
right. Once he created it, be it literary or artistic work, it is again at his will to have it
published or not. This can be inferred from the reading of Art. 1673(1) "...after such
work has been published by its author or his heirs." That means what has been done
before publication is totally under the will and whim of the author. If the author passes
away without having his work published, like any other property, the right devolves on
the person who is a party to a contract concluded during the life time of the author or a
person named by him in his will before his death, or, in default of such person, on the
heirs of the author. If the heirs do not agree on the conditions and expediency of the
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publication, however, the court shall settle the matter. Here again there is no guideline
how such matter may be settled by the court.

Arts. 1665-1669, 1671 & 1673(3).
Authorities argue that every literary and artistic work bears the stamp of the personality of
its author. Hence as a reflection of his personality, the integrity of his work must be
protected because the alteration of the work is mischaracterization of the author and
wrongful attribution of the work. Hence the author is granted unfettered right to prevent
others from altering the work or attributing to him the work altered. Art. 2686 for
instance provides for the obligation of the publisher to reproduce the work in an
"appropriate form" (in the form that has been agreed on or is given to the publisher)
without abridgement, additions or modifications. Though contractual, such activities are
prohibited for third parties too under Art.1665. Neither public authorities can authorize
the alternation of the work.

However, it seems the case that in adaptation, because of the form of expression or the
media and in translation for cultural and language reason, some degree of deviation which
is not substantial is tolerable. Such right to prevent a work which has been altered by a
publisher or a third party being attributed to the author may be exercised by the author
himself, the spouse, ascendants, children and grandchildren during their life time.

The other aspect of moral right is what is commonly known as paternity right. This is the
author's right to be named the author of his work. It includes the right to be known to the
public as the creator of his work and to prevent others from usurping his work by naming
another person as the author of the work. These rights are not very well articulated but
they are embodied in Arts. 1666ff. It is more of withholding of the name of the author by
using pseudonym or by remaining anonymous. Whether the author uses pseudonym or
prefers to remain anonymous is the choice of the author and if he wish to reveal his name
it has to be put on each copy of the works. But whichever the author prefers, he is
entitled to all the benefits that may be derived out of his work (Art. 1666(2)). Along with
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this we have the issue of ascertainment of the author. Hence the law provides that the
person in whose name the work is published is deemed to be the author of the work.
Contrary evidence may be produced. In other cases where the work is published under
pseudonym or it remained anonymous, the publisher whose name appear on the work
shall without further proof be deemed to represent the author. This presupposes the
existence of an agreement between the author and the publisher as envisaged by Arts.
2672 - 2697. But this does not include those cases that are stated under Art. 1666 where
the work is presumed to be the work of the person in whose name it has been published or
in anonymous and pseudonyms where the identity of the author is not in doubt.

When a work is created by more than one authors, they are joint owners of such work.
Their rights are governed by the common agreement, in whtever form it may have been
done, between the co-authors. If each author contributed different type of work each may
utilize his personal contribution provided such utilization is not detrimental to the use of
the common work. Again, if such work is published under the name of a single author,
third parties are justified in assuming that the said author is the sole author of the work.
Such may be the case in relation to dealings with such 'sole author' in respect of the co-
created work for reproduction, production, adaptation or translation. And third parties are
not affected in any way by the rights of co-authors Art. 1674.

12.3.4 Remedies.
The rights of the author or his heirs may be infringed as any other rights. The
infringement may be in the manner the right has been protected i.e., by way of
reproduction, production, adaptation, alteration or plagiarism. Whatever form the
violation may take, an undertaking in such activities by third party that is not authorized
by the author, his heir or public authority is an infringement of the rights of the author.
The law has teeth for such relations to sanction the violation. The sanctions are either
criminal, Civil or both. The criminal sanction is provided for under Arts. 675 &76 Pen.C.
that if a person intentionally reproduces by any means or cause to be shown or performed
publicly, any literary or artistic work protected by a copyright without the permission of
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the holder of copyright is punishable upon complaint. It is not only the violator that is
prohibited by the criminal law from acting those activities but also others who sell, offer
for sale, import or export, distribute or place on the market infringements of such works.

In view of Art.2 (1) of the Penal Code, the protection does not seem to be sufficient as it
deals only with reproduction and public performance of the work.

The civil remedies take various forms. They may be contractual or extra-contractual.
Contractual remedies are found under Arts. 2672-2697 and the general provisions of
contract. The extra-contractual ones are clearly provided for here and cross-references
are made. Hence it may be granted in the form of injunction, destruction of the copies
produced and damages.

Injunctive Relief- injunction is normally a prospective remedy intended to avert future
damage by restraining a defendant from committing, or from continuing to commit or
from resuming the act prejudicial to the plaintiff. Those temporary injunctions found in
Arts. 154 -59 Civ. P.C. are ordered to avert damage during proceeding before the case is
finally disposed. But here the law is dealing with injunction as a final remedy when the
case is disposed. This can be inferred from the wording of Sub-art. (1) "any person
whose right of literary or artistic ownership is infringed....". This might seem ambiguous.
However, when seen in light of other remedies (i.e. destruction of illegal copies
adaptations and damages) and the place of Art. 2121 as a mode of compensation make
our statement clear.

The law also provides for the destruction of copies illegally reproduced or adapted from
the original work. It may be in the form of book, disc, cassette or otherwise. This may be
effective only with respect to copies that are not distributed. Because once it has been
distributed it is legally and practically impossible to recover from third party acquirers.
Hence the remaining remedy, compensation, may be sought.

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Damages may be of moral or material. It may also be claimed along with or as an
alternative remedy to other remedies. If a work has been reproduced without the
authorization of the author and is distributed to the public injunction or destruction of the
copies not distributed may not be sufficient as those copies, which are already distributed,
cannot be recovered. Hence damages may be claimed as an additional remedy for the lost
benefits.

The assessment of amount of damages is the most difficult business in respect of
infringement of literary and/or artistic rights. Because in such proceedings the injury
suffered is the index of the amount to be awarded. Those injuries that are to be
compensated are either present or future or both provided their occurrence is reasonablly
certain. But if one work is produced by unauthorized third person what are the present
and future losses that are suffered by the author? How far is the court able to assess the
moral injury suffered by the author? How is it possible to assess the fact that the author's
name is not stated on the work affects the marketability of future works of the author?
These and other questions are to be answered by the court in the determination of
compensation. Assuring that it is possible to determine the amount, compensation is
granted to the copyright holder in accordance with the provisions of extra-contractual
liability law.

Review Questions
1. What is intellectual property?
2. What is copyright? Distinguish it from patent?
3. If a cretin book is written and published in Kenya by a non - Ethiopia national and
reproduced, translated or adopted here in Ethiopia, what are the remedies available to
him?
4. What is the right of a composer of a certain song and hat of the Vocalist?
5. Radio FM Addis is disseminating various songs. Do you think it is a lawful act? Why
or why not?
227
6. Trademark and Trade names are closer to, and sometimes come under, patent, instead
of copyright? Why?
7. Is the purpose of protecting trade mark and trade names the same as that of patent and
copyright?
8. Does the law make a distinction between various forms of works?
9. What is the difference between original and derivative work? How are they protected?
10. What kind of right do you have over this assuming you bought it?
11. Can you make a clear distinction between the rights of author and owner of a
particular book on the one hand and derivative author of that same book on the other?
12. What are the rights of a copy right owner? What are those limitations that are
imposed on such right of the copyright owners?
13. W/ro P has very recently written a book entitled "paradise A Myth - Hell the Reality,"
which has been published in English. Being greatly impressed with the theme and the
insight of the author of this book, W/rt Q has translated it into Amharic. The
translator (W/rt Q) has put on the final page of her translation the statement: " All my
attempts to get the author were unsuccessful." In translating the book, W/rt Q has left
out two chapters. Another woman, W/rt R has translated the Amharic version into
Oromigna. In making the translation, W/t R did not secure the consent of W/rt Q nor
did she put any statement to this effect in her translation.

13.1. W/ro P had decided to institute a legal action against W/rt Q. Give her (the
former) your legal advice concerning the possible argument she may raise and the
relief she may invoke in her statement of claim .
13.2 What are the legal remedies available to w/rt Q against W/rt R?

14. W/ro N is a known literary critic. She has recently published a work of critics
entitled: "Ethiopian Poetry Sumbered." In this book, she has included two separate
verses, one having seven lines and the other consisting of nine lines. These two poems
are authored by a certain Degagu (Ato). Having noticed the incorporation of his
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poems without his consent into the work of W/ro N, Ato Degagu has instituted a legal
action against her.

In this statement of claim, he argued that the defendant has pirated his work of mind
since she published the poems without his consent and that questions as enshrined in
the Ethiopian Civil Code presupposes lengthy poems not short poems such as the
ones in questions. Alternatively he argued that the two poems shall be seen as one
and defendant shall be considered as having taken sixteen lines of a poem.

The defendant, on the other hand, responded that her act is tolerable since she has
duly acknowledged the plaintiff and since without quotation research endeavors
would be crippled and since the two poems are distinct in style and content.

14.1 Rule on the controversy between the plaintiff and the defendant having proper
regard to their arguments.
14.2Assuming that you have passed a judgments in favor of Ato Degagu:
14.2.1What specific right (s) of the author have/has been infringed?
14.2.2And what are the remedies you might grant to him?

15. Justice: Yoseph Aemor: the Federal First Instance Court Civil File No. 671/86 Tir 29,
1992 E.C. The Ethiopian Truism Commission (ETC) and the Ethiopian Mapping
Authority (EMA) V. The United Printers Enterprise and Albo Enterprise.

The synopsis of the statement of claim of the first plaintiff is: " In order to accomplish
its objective of promoting tourism in this country it concluded a contract with the
second plaintiff (EMA) so that the latter would prepare postcard entitled "the Tourist
Guide." depicting the landscape of and historical sites in Ethiopia, upon the
completion of the work, the card was put into circulation. The first defendant
notoriously limited the work for the second defendant which distributed and is
distributing it without the consent of the owner" the pieces of evidence adduced were"
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"a) a copy of a postcard continuing the work, 'prepared by the United Printers
Enterprise for Albo Enterprise", (b) a copy of the postcard alleged to have been
pirated with the words "prepared by Ethiopian "Mapping Authority for the Ethiopian
Tourism Commission," (c) a one - page confession of the general manger of the first
defendant stating that the manger of the second defendant brought a large sized
postcard with the title "The Tourist Guide" showing landmarks of Ethiopia and
bearing the word s 'prepared by EMA" and the enterprise printed the postcard in the
name of the second defendant, (d) the postcard limited has a black square shape mark
at the point between Dessie and Kombolach; this mark has technically no meaning
and the defendant did exactly reproduce such mark and thus showing the degree of
blatant limitation, and (e) at the back of the postcard plagiarized has the map of Addis
Ababa, so is the limited work."

The second plaintiff concurred with the arguments present by the first plaintiff except
on the question of ownership of the work claimed to have been pirated and thus it
argued that the fact of the postcard containing the words "prepared by Ethiopian
Mapping Authority" is a sufficient reason for it to be the author without denying the
vital that it executed the work on the basis of a contract with the first plaintiff.

The defenses of the second defendant were:
a. As justice persons plaintiffs do exist merely in the contemplation of the law;
they are devoid of intellect, thus they cannot claim to have a work of the mind.
b. Failing this, the postcard alleged to have been limited is an independent work
of the mind, several persons may, at the same time but independently, map the
topography of Ethiopia and indicate therein the location of historical heritages
ad still each will enjoy protection, and
c. The similarity of the items of information included in the two postcard cannot
be good reason for complaining about coping since any person drawing the map
of Ethiopia has no choice but use identical information."

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On the other hand, the first defendant argued that:
(a) it has no connection with the plaintiffs it has printed a postcard showing the
landscape of Ethiopia pursuant to a contact of work concluded with the first
defendant and
(b) even if its general manger confessed, among others, that the card brought by
the second defendant was copied with camera followed by change of the
positive film into negative film and subsequent printing with all other piece of
information intact; is not, as an independent entity, bound by such statement.

Put yourself in the position of Judge Yoseph Aemero and exhaustively dispose the case.

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13. Notes on Lease

Lease, as found under Book V Title XVIII of the Civil Code, is a special contract. The
notion lease in general maybe applied to the letting or hiring of object, movable or an
immovable, to be used by the lessee for a specified period of time for consideration
while the right of ownership is retained by the owner. Hence, the ultimate object of the
contract is sale of the use right of an object for sometime (not perpetual) while
retaining the right of ownership. The object is to be returned to the owner at the end of
the day.

When we say an object, as we have touched it upon above, it may mean movable or
immovable. The case of movable is governed under Art. 2727 ff. of the civil code
under title XVII chapter two entitled "Letting and Hiring". In this section of our
discussion we are dealing with lease of immovable. The laws applicable are varied and
are of different scope. Yet the term "lease" is defined only under the Civil Code Art.
2896. Therefore we begin our discussion with this provision. As it is a good
springboard for our later discussion it requires serious consideration. It defines the
concept lease as:
- a contract
- where by one of the parties, the lessor, undertakes to ensure the other party, the
lessee the use and enjoyment of
- an immovable
- for a specified time
- for consideration fixed in kind or otherwise.

This definitional Article among other things provides that lease is a contract. When the
law says lease is a contract, it has an immense legal effect. Once it is said to be a
contract, when they are found to be necessary and when they are in harmony with these
special provisions, the rules under Title XII (contracts in general) are applicable.
Whenever there are found to be gaps. It also means that the rights that arise from
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lease, though they are related with an immovable (real property), are personal rights.
Hence, all the elements required for the formation of a contract are of general
application here also for instance, the parties must have capacity, their consent should
not be vitiated and the object of the contract should be legal.

This contract, however, is just a promise by one of the parties, the lessor to the lessees
for the use and enjoyment of the immovable. In fact, the use right cannot be exercised
without delivery of the immovable, but it is not a requirement for the validity of the
lease agreement. Once the lessor promised to the lessee use right, it is valid.

As we have said earlier, lease essentially is sale of the use right. What the lessor
promises (guarantees) to the lessee is the use and enjoyment of the immovable. These
two words 'use" and enjoyment" of the thing, we think, are not without effect. If the
thing is to be used per se for its own sake, such as residing (dwelling) in a house, it is a
'use". But if some sort of fruits are to be collected from the immovable without
diminution of the essential value of or element of the immovable, such as use of
forestry it is "enjoyment'. Therefore, what the lessor promises to the lessee is only the
use, or enjoyment or both of the immovable.

This sale of right, at this particular section is to be made with respect to immovable.
The two kinds of immovable as provided under Art. 1130 of the Civil Code are
buildings and lands. The Civil Code also provides for special rules regarding lease of
houses and lands under 2945ff and 2975 respectively.

When an individual sales his use right, it is for a specified period and not perpetual.
The law seems to be seriously concerned with the duration of the period for which the
contract of lease could be made. The Civil Code under Art. 2927 provides that lease
can be made for a determinate or indeterminate period.

This is just for the purpose of illustration and it does not in any way mean that the Civil
Code is the only applicable law or it has full application as we are going to see it in due course
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Whichever is agreed by the parties, it cannot exceed 60 yrs. It does not seem however,
to be a requirement for the validity of the lease agreement as when a longer period is
agreed to by the parties, the law provides for the reduction and it considers it as if it is
made for 60yrs only. But what if it is made for indeterminate period?

On the other hand, the Urban Land Lease Holding Proclamation (Proc. No. 80/93)
provides under Art. 7 for the maximum period for which the lease agreement could be
made. What if it exceeds? Does it have a nullifying effect or should it be reduced to
the maximum period provided for as in the Civil Code.

The last point which the definitional Article provides for is that payment is to be made
in return to the use of the immovable. Here it sounds that when there no rent paid,
there is no lease. Instead, it is a gratuitous use of the immovable. But Art. 13 of the
lease proclamation (No.80/93) provides that the government may grant freely urban
land which is to be utilized for investment that the government encourages or social
services establishments or for otter purposes which directly benefit the public. Does it
mean that there is some sort of contradiction? The cannons of interpretation are of
some help were that apart from their period of promulgation the proclamation is of a
special application to urban lands and it has prevalence over the Civil Code. This
provision itself is entitled as 'exceptional circumstances" that it is also a special
provision within the proclamation.

This rent, as provided for by the English version of the Civil Code, is to be made either
"in kind" or "otherwise" while the Amharic version says, when literally translated, "in
money or otherwise". In fact, as the federal language is Amharic we have to give
effect to this version. Yet, to which ever we give effect, so long as lease is a contract
and the parties have agreed expressly, it does not have any problem to accommodate
the other modality of payment as the word 'otherwise" is so wide as to include any
modalities of payment. But as we have said earlier that the contract is for the use and
enjoyment of the immovable (i.e. using the immovable by collecting the fruits
234
therefrom without diminution of the essential vale of the object), the rent therefor
maybe paid by giving a part of the fruit which the lessee has collected or in the form of
money. As this code is promulgated in the days where immovable were subject to
private ownership and where people pay their debts in kind, it could be considered as it
envisages circumstances such as a lessee of a farmyard pays the rent by giving part. of
his produce.

After defining lease, the next fundamental question may be, as there are many, equally
applicable resignations, which law is applicable to specific cases? Hence we need to
discuss whether the civil code is applicable and if it is applicable what is its extent of
application? What is the scope of application of each legislation?

After the 1974 revolution the Ethiopian people followed another course of life. All
immovable are virtually owned by the government. The two proclamations, which
provide for the Public Ownership of Rural Lands (Proc. No.31/1975) and Government
Ownership of Urban Lands and Extra-Urban Houses (Proc. No. 47/1975) are of
paramount importance for our discussion.

As of the date of their coming into force, nobody was in possession of an immovable
to be leased. Because the rural lands were said to be publicly owned and the urban
lands and extra urban houses governmentally owned.
It is good to deal with lands and buildings separately.

13.1. Lands
A. Urban lands
Urban lands and rural lands are governed by different legislations as their purpose and
significance is different.

Art.3 of Proc. No. 47/75 provides for the government ownership of urban lands and
prohibits any kind of private ownership. This is later confirmed by Art. 13(2) of the
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PDRE constitution. Individuals however maybe granted only possession of urban land
though it is repelled later. If it is for the purpose of constructing dwelling house it is up
to 500 square maters; and if it is for an organization for the construction of dwelling
house for its workers or a business house, the size of the land is to be determined by
the Ministry of Public works and Housing (Art. 5 of Proc. 47/75). This land is given
for personal use and it cannot be transferred to other individuals or organizations by
sale, antichresis, mortgage, succession or otherwise, The word "otherwise" is to be
interpreted to include lease because Art. 20(1) (of pro. 47/75) expressly prohibits
individuals and organizations except the Ministry of Public Works and Housing from
obtaining income from urban land use.

We can therefore safely say that the lease agreement on urban land could be concluded
only with the government. If this is the case, are the provisions of the civil code
relating to lease of immovable applicable? Certainly yes. It is not because they are not
repealed, but because they are expressly cross referred to the provisions of Title XIX
"Administrative Contracts" are applicable. The question may be whether the lease
agreement with the government qualifies as administrative contract. Art. 3132(b)
provides that a contract shall be deemed to be an administrative contract where it is
connected with an activity of public service and implies a permanent participation of
the party contracting with the administrative authorities in the execution of such
services (where public service is in turn defined under Art.3207(1). Once this
agreement qualifies as administrative contract, the provisions under Administrative
Contracts are applicable by supplementing or replacing the provisions of contracts in
general and special contracts (Art. 3131(1). In fact we have highlighted that lease is a
special contract.

They were, however, in applicable not for legal reasons but for practical reasons
because the permit system when first established was not meant to repeal those
provisions of the Civil Code but just to transfer ownership. As ownership is
transferred to the government and private citizens are prohibited from earning income
236
by lease, the prior lease relationship between land lords and tenants is replaced by such
relation between the government and the lessee respectively, by virtue of Art. 20(2) of
pro.47/75. Essentially the relation is of administrative contract in the sense that the
terms are unilaterally determined, any dispute related with such matters is to be
resolved by the social courts established thereunder, and ordinary courts are expressly
precluded from entertaining such cases (Art.30 & 40).

Therefore, when the parties are not Articulating them rights and obligations on equal
terms in their agreement but unilaterally determined by one of the parties, the
government, there is a possibility of not considering these provisions at the formation
stage as to their application. Even when dispute arises between the two parties, it is
unlikely to expect those "Judges" to apply the provisions of the Civil Code. Hence, the
in application of the Civil Code provisions either at the formation or at a later stage
such as during dispute is a practical reason and not a legal reason.

The FDRE constitutions (Art. 40(3)) expressly provides that the right to ownership of
rural and urban land is exclusively vested in the state and the people of Ethiopia. It
further provides that land is the common property of Nations, Nationalities and
Peoples of Ethiopia and shall not be subject to sale or other means of exchange. This
provision of the constitution seems to be the continuation of (at least a replacement to)
the transitional period charter. The urban land lease holding proclamation, which is
under implementation today, is issued under Art.9 (d) of the charter. This lease
proclamation never repeals proclamation 47/75 it rather up holds it. It rather seems a
gap filling because in the preamble it says "---the Law presently in force, namely the
Government ownership of urban lands and Extra-Houses Proclamation No. 47/1975
does not provide for the value of land utilization to be expressed in terms of money"

The difference of this proclamation from the provisions of the Civil Code begun from
the scope; but it does not mean that there is a symmetrical difference but certain major
differences only.
237

Generally, as the name itself implies, the lease proclamation applies to urban land only
but Art. 3 of the lease proclamation further provides for the scope by the negation that
it does not apply to lands that are utilized for the building of dwelling house. The
regulations of urban land holding for private dwelling houses, which were in force
prior to the promulgation of the lease proclamation, is maintained. However, if the
house is transferred in anyway other than inheritance, the person to whom the house is
transferred shall hold the land in accordance with the lease holding system provided
for in the lease proclamation.

The scope of the civil code is so comprehensive that it applies to both urban and rural
lands equally. As we touched it upon earlier, it is not repealed and that as the lesson is
the government, it has application through the provisions of Administrative Contracts
provided its provisions are not inconsistent with the urban land lease holding
proclamation (Art. 14(2) Hence the application of the Civil Code is only restricted by
the proclamation.
B. Rural Land
Before 1975 rural lands were subject to private lease. The Public Ownership of Rural
Land Proclamation, Proc. No.31/1975 which made rural land public property expressly
prohibits not only private ownership of land, but also transfer of land by way of lease
(Art. 3 and 5, respectively). On the other hand, Art. 4 of Proc. No.77/1976 (which
provides for the rural land use payment and agricultural activities income tax) made
the payment of rural land use fee to the government an obligation; and under Art. 8 it
provides for the rate. Can we consider the rural land use fee as a rent? So can we
consider the use of rural land by the peasant as a lease?

The FDRE constitution under Art. 40(4) provides that Ethiopian peasants have the
right to obtain land without payment and the protection against eviction from their
possession. Yet the implementation was to be specified by law. Accordingly
proclamation No. 89/97 Federal Rural Land Administration is issued.
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As the administration of Land is the power of the regional states (as per FDRE 52(2)
(d)) this proclamation seems to enable the regions begin exercising their power. The
proclamation under Art.7 provides for the payment of "land-use-fees and royalties on
the use of forest resources" pursuant to the provisions of Sub-articles (2) and (10) of
Art. 97 of the FDRE constitution. Does this requirement of payment contradict with
the constitutional provisions Art. 40(4) which provides for the obtaining of land by the
Ethiopian peasant without payment? Irrespective of this, does the payment of land-
use-fee make this relationship lease? On the other hand the above provision of the
constitution on which the obligation to pay land-use-fee is based, Art. 97(2), provides
that states shall determine and collect fees for land "usefructuary" rights. What
significance does the word "usufructuary" have? Does it mean the use right of the
peasant is usufructuary?

13.2. Buildings
When we consider buildings, the government used, it seems, to be concerned only with
urban houses and in particular extra-houses. This is because by virtue of Art. 13(1) all
extra-urban houses became government property as of the day on which the
proclamation came into force. What individuals have as a right is only one house (it
may be, of course, business and dwelling house but one from both kind) in which they
dwell or/and conduct business. The rest is handed over to the government (Art. 13(2).
Also article 20(1) expressly prohibits any 'person family or organization' from
obtaining income from house rent except urban dwellers cooperative societies and the
Ministry of Urban Development and Works. The former private lessor-lessee
relationship is terminated and continued with these two governmental institutions. It
necessarily means, the lease contract is governed by the provisions of Administrative
Contract in addition to the contract between the two parties.
The distribution of power between the co-operative societies and the ministry to
conclude lease agreement is based on the amount of rent that Sub-article (5) of the
same Article provides that the administration of urban dwelling and business houses
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which rent at the rate of up to Birr 100 per month is the responsibility of the
cooperative societies of urban dwellers and those houses which rent at the rate above
Birr 100 is the responsibility of the Ministry. The powers and responsibilities of the
Ministry are transferred to the Agency for the Administration of Rented Houses
(AARH) which is established by Proc No. 59/1975.

Later, however, the government issued a proclamation to provide for the construction
and use of urban houses (Proc. No. 292/86). This proclamation under Art. 12 provides
for co-dwelling, a relationship which was to be governed by a regulation which was to
be issued by the Ministry. Accordingly, Legal Notice No. 94/86 was issued which
under Art.4 provides for the permissibility of co-dwelling by an individual, family or
organization whether the house is possessed by virtue of ownership or rent provided
that it is upon the initiative and free will of the principal dweller.

Art. 5 of the same regulation provides that such relationship was to be derived from
and to be governed by the agreement that is made between the principal dweller and
the Co-dweller, and of course subject to the provisions of the regulation. If the private
citizen has a right to lease a building which he possesses either by rent or ownership,
and such relation is governed by the agreement of the parties, the latter have the power
to make the provisions of the Civil Code, relating to lease of immovable, applicable
apart from their (the provisions) applicability per se. One, who considers cases that
are in the courts today, would understand that this, in fact, is not the case that virtually,
none of them made the provisions applicable.

There are and were regulations and legal notices legislated so far. Yet as none of them
repealed Art. 20(1) of Proc. No. 47/75, it does not seem that there are other private
lease agreements than co-dwelling. The urban land lease holding proclamation
expressly repealed the construction and use of urban house proclamation No. 292/86
only, while it sounds to be supplementing pro. No. 47/75 as we have seen earlier yet,
the fact that, a provision of a given legislation is not expressly repealed does not mean
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it is not repealed. The lease proclamation (No.80/93) under Art.7. employed the phrase
"dwelling houses for letting". This same phrase is employed under Art. 13(14) of
region 14 regulation No. 3/94 which provides for the lease holding of urban lands. The
proclamation under Art.14 (2) repeals any law, regulations or directions, which are
inconsistent with it. Also the reinstatement of the obligation to pay income tax from
income derived from lease of buildings by proc.62/1993 made our belief, that Art.20
(1) of Proc. 47/75 is repealed and private individuals can be engaged in lease of houses
and construction of houses for purpose of letting whether it is for dwelling or business,
stronger. Though the law grants such rights, it does not, it seems, provide for how the
rights and obligations of parties to a lease contract may be governed. We believe that it
is here that the provisions of immovable relating to lease will be directly applicable. It
needs to be taken into consideration that there is no essential difference between lease
of business and dwelling houses provided they are leased for that purpose. Business
house, however, may be leased along with the business as provided for in the
commercial code. Here we are not dealing with lease of house but lease of business,
and the business premise is considered to form part of the business (Art. 127 Com.C)

13.3.Obligations of the Parties
As we have seen so far, with respect to lease, as any other contract, there are two
parties, whether one of the parties is a government body or both parties are private
persons. When one of the parties is a government administrative unit, the rules of
administrative contact are applicable by supplementing or replacing the provisions of
contacts in general and contacts relating to lease of immovable (Art.3131 (2). where
both parties are private persons, however, the latter provisions (contacts in general and
contracts relating to lease of immovable) are of direct application. which ever way we
approach the lease agreement, the parties have obligation under their agreement and
the law. this section we are discussing what are the obligations of the parities (the
obligation of one party is the right of the other party), and if either of them fail to
perform his obligation whether under the agreement or the law, what are he remedies
available to other party (the right holder)?
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13.3.1. Duties of the Lessor
A. Delivery
As "the right of use" is the right to avail oneself physically of a thing for one's pleasure
or personal profit according to the agreement or the nature of the thing, and as this
right cannot be exercised without possession of the thing, as per Art. 2900, the lessor
has the obligation to deliver. Delivering as defined under Art. 2274 is the handing over
of a thing and its accessories in accordance with the contract. Where one considers the
definition of accessories 1135-39 the immovable (be it a land or a building) and its
accessories. The delivery of the thing is preferred to be made in accordance with the
inventory or statement that is made during the conclusion of the contact or delivery for
it also enables the discharge of the obligation to restore the object by the lessor easy.
(Arts. 2901 and 2937).

The immovable, however, has to be delivered in a state (condition) to serve for the
purpose which it is intended either in the terms of the contract or according to the
nature of the thing. In fact, we do not have the requisite manpower, neither the
regulation to determine whether an immovable is in the state to serve its purpose or
not. Yet the parties are presumed to agree on this issue (as it is the object of the
contract ) and if any dispute arise we believe that a reasonable man standard may be
taken as a measure. For such determination, the purpose need to be stated in the
contact or in default regard must be had to the nature of the immovable. It is true that
the parties can agree to make use of a dwelling house for business purpose, if they
expressly agree. At the time of delivery, however, all the required modifications are to
be made by the lessor to make dwelling house fit to serve for its intended purpose, as a
business house, unless there is agreement otherwise that the lessee assumes the
obligation of modification.

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If there is no express agreement, however, the nature of the thing dictates that a
dwelling house is to be used for dwelling purpose and a business house for business
and it must be in a condition to serve the purpose which its nature dictates.

Sub-art. (2) of the same Article provides that the place and time of delivery is to be
governed by the provisions relating to sale (Art. 2276-80).

B. Warranty to Peaceful use and enjoyment
The Second obligation of the lessee as provided under Art. 2911 as well as in the
agreement and in the definitional Article is to warranty peaceful use and enjoyment of
the immovable. This obligation as one can gather from the provisions of the civil
code, is two fold that, first, the lessor himself should abstain from interfering in the use
and enjoyment of the immovable by the lessee, This is either by dispossession hamper
the use and enjoyment of an immovable or by disturbing essential services of a
dwelling house such as electric, water or, by harassing the lessee or violating his
privacy. The lessor is precluded even from making any alterations without the consent
of the lessee (Art. 2912). The lessor has the right to control the lessee to satisfy
himself that the latter fulfills his obligations (Art. 2922(1) but it is to be made
reasonably without causing excessive inconvenience and without assuming a vexation
character. After all the lessee's privacy has to be respected. Secondly, the lesson
should warranty that third parties do not interfere or hamper the use and enjoyment of
the immovable. Hence if third parties claim right over the immovable the lessee
informs the lessor immediately that the latter be a party to the suit. If the use and
enjoyment is interrupted in consequence of such proceeding, the lessee is entitled to a
proportional reduction of the rent provided he informed of the molestation or
hindrance to the lessor (Art. 2913).

C. Repair
The third major obligation of the lessor after he delivers the immovable is to conduct
maintenance of the immovable, that are necessary and not incumbent upon the lessee,
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to make it in good condition at the commencement and during the currency of the lease
(Art. 2916). The lessee, has of course, the obligation to inform the lessor (Art. 2917)

The obligations of the lessee to repair are stated in negation. This is because those
kinds of repairs incumbent upon the lessee are stated under Arts. 2953 and 54 as
(contractual and legal) with respect to houses. It provides that the repairs, which are
stated in the contract to be on the lessee, are deemed to be incumbent up on him. It
also provides that, when there is no otherwise agreement, repairs necessary to the
doors, windows, floor boards, tiling, taps and water drains are deemed to be up on the
lessee; works of cleaning and maintenance which became necessary by the enjoyment
of the thing are also deemed to be repairs on the lessee.

Under the special rules regarding the lease of land Art. 2983 provides that the farmer
tenant shall make on premises used as dwellings, barns, stables and other buildings
given to him on lease such repairs as are incumbent upon the lessee in the above case.
For the application of these provisions, one may envisage a circumstance where
formerly state farms or a land, which is possessed and developed by private investors,
is given by sub-letting to another person. Certainly these kinds of lands are not
provided for under Proc. No. 89/97 the Federal Rural Land Administration. Yet as the
Regions are given the power to administer rural land (Art. 52(2) (d) FDRE
constitution) they have the power to issue law and it is applicable in so far as it is not
inconsistent with the Federal Rural Administration (Art. 8).

There are in fact limitations that if the expense of maintenance is higher than the rent,
which he is to receive from the immovable in the course of three years, he is not bound
to make it (Art. 2919). By way of conclusion therefore, repairs, which are not
incumbent upon the lessee, are incumbent up on the lessor.

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13.3.2. Obligations of Lessee
A. Rent
The fundamental obligation of the lessee is paying the rent which is a sort of
compensation or price for the use right (Art.2923). This obligation is also a
requirement for the validity of the agreements as we have seen in the definitional
Article unless there arises an exceptional situation as provided under the urban Land
Lease Holding Proclamation (No 80/93) Art. 13. The rent is to be paid on the date
provided for in the contradict or failing this as provided for by the law. Rent for lease
of buildings is to be, normally, monthly as we can understand from the practice and the
provisions of Art. 20 (4) and (5) of Proc. 47/75 . Whether the lesson the payment of
the rent is to be paid on the agreed date either at the end or at the beginning of the
month. When the parties did not agree Art. 1756 (2) civil provides that it may be
made forthwith". When is forthwith? How soon is it? And as of when it is to be
calculated? It seems as of when the obligation of rent falls due. This certainly is at the
end of the month, after the lessor has discharged his obligation. However, the parties
can agree otherwise whether it is related with a dwelling house or a business.

As one can gather from the provisions of Art. 7. (Proc. No 80/93) lease of urban lands
is to be calculated in years. The modality and date of payment for leaseholders in
Region 14, for instance, is provided for under Art. 14 of the Region 14 Administration
Regulations No 3/1994 which provides for the Lease holding of urban lands.
Accordingly, for lands utilized to provide dwelling houses, it is to be paid annually.
For lands used for other purposes the total amount is to be paid during signing of the
lease contract or "periodically" with bank compound interest on the unpaid portion. In
fact, it is to be completed in 30 years for industry and rental dwelling house in 15 years
for business, and in 20 years for private dwelling houses for the land beyond the
maximum size allotted by law. Sub- Article (3) of the same Article provides that
unless the lease agreement provides otherwise, the price that bear compound interest
are to be paid annually.

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Art. 2923 provides that the rate is to be fixed freely by the contract. With regard to
private lease agreements, there is no problem to make this provision effective. When
one of the parties is a government unit things are different, i.e., they are unilaterally
fixed and the lessee is expected to accept it when we have regard to Art. 20(4) of Proc
47/75, for instance; or by tender as in the case of Art. 8(3) of Proc. No. 80/93 provided
the floor price is fixed by having regard to the level of urban center, the zoning of the
urban center, and the purpose for which the particular piece of land is to be used in
both cases however, it is not in any way a deviation from the will of the parties or
other prior laws for that matter) when one considers Art. 1683 and 1688 civil code.
Thus, once a person agrees and assumes the position of a lessee, he has the obligation
to pay the rent in whatever modalities he has agreed to pay.

B. The duty to use with proper care
The other obligation of the lessee is to use the immovable with due care and in
accordance with the purpose. This is what is provided for by Art. 2921(1). Essentially
the obligation is twofold. According to Art. 9(1) of the urban land lease-holding
proclamation the lessee is required to start to utilize the land in the period specified by
the appropriate national/regional council. Failure to utilize the land within the
specified period entails termination of the lease agreement (Art. 11(1) (a) of same
proclamation). The Second aspect of the obligation is that the lessor has to use the
immovable for its intended use.

With respect to calculation of the time and payment, the reader is advised to consider
Arts. 1857-1868 and 1740-62, respectively the immovable has to be used for the purpose,
which it is destined to either by the agreement or as, dictated by the nature of the object.
A lessee cannot use the land for business purpose which is given to him for construction of
dwelling houses or vice-versa, unless the lessor agree to the use of the object for that
purpose in another contract, The civil code also prohibits in particular any modification or
alteration the effect of which lasts beyond the period of the lease. Thus, the law grants the
lessor power of supervision to see to it that the lessee fulfills his obligation Art. 2922). In
fact, though it is used for the purpose it is destined to along with it there is also an
obligation to use it with proper care.

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C. Repairs.
This point has been discussed in connection with the obligation of the lessor to make
repairs, which are not incumbent upon the lessee.

D. Restore the thing
The last main obligation of the lessee is to restore the object at the end of the lease.
Whether it is lease of a building or a land, unless the parties agree to continue in the
same relationship or the lessee wants to renew the agreement to use the language of the
urban land lease holding proclamation the contract terminates. When the contract
terminates at the end of the term of the lease agreement, the lessee shall return the
object (the principal and the accessory). The delivery is to be made in accordance with
the inventory that has been made during the conclusion of the lease agreement or when
the lessee enters possession of the thing. (Art. 2901 and 2937). In the absence of such
inventory or statement, the lessee is deemed to have received in good condition and
without any accessory unless the lessor has any evidence to rebut such presumption
(Art. 2938).

13.4 Remedies
The parties are men and not angels as to perform their obligation, that there are
instances when they failed to perform the obligation. In such cases, what are the
remedies that are available to the other party (the right holder).
The general provisions seem to be found under Arts. 2930 and 2931. If the lessor fail
to fulfil his obligation which notably diminish the use and enjoyment of the
immovable by the lessee or where the lessee fails to fulfil his obligations so that the
rights of the lessor are endangered the lessee and the lessor respectively may require
the termination of the lease (Art. 2930(1) and 2931(1). Both the lessee and the lessor
may, independently of the termination, claim damage if the failure of the other party
has caused him loss (Sub-Art.(2) of Arts. 2930 and 2931)

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If the thing has defects of the nature that its normal use is appreciably diminished,
whether it has been discovered during delivery, after delivery as it is latent, the lessee
may demand the recession of the contract (Art. 2904). Whether the lessor knew or
should have known of the defects, or any damage is caused to the lessee during the
currency of the lease, the lessor shall make it good (Art. 2905)

This damage is an independent one that it may be ordered irrespective of the fact that
the contract is rescinded or not. The defect in fact should not be apparent which the
lessee knew or should have known at the making of the contract (Art. 2907).

The lessee may have the same right where the thing leased does not have or cease to
have a quality the existence of which has expressly been warranted by the lessor. But
do you think Art. 2289, warrant against defect has any relevance or application here?

Once the lessee has taken possession of the thing (immovable), if it is an urban land,
he has the obligation to utilize it within a specific period that is fixed by the regional
state council (Art. 9(1) Proc No. 80/93). Once he starts utilizing it whether it is land
or building, he has to utilize it for the purpose that has been agreed to in the contract or
when there is no agreement, as the nature of the object dictates (Art. 9(2) of Proc. No.
80/93 and Art. 2921 of the Civil Code). In the exploitation the thing for the purpose,
reasonable care is required. If the lessee, however, fail to utilize the land in the
specified time or to observe the purpose to which the immovable is destined (by the
agreement or the nature of the object) or does not take the necessary care required of
him, the lessor may terminate the contract (Art. 11(1) (a) Proc. No. 80/93 and Art.
2931 (1) Civil Code)

For the use of the land the lessee is supposed to pay the rent. Neither the lease
proclamation nor the civil code however seem to envisage a remedy for circumstances
where the lessee fails to perform his obligation. (of paying rent). When the rent is to
be paid at the beginning, when the lease agreement is made there is no problem. But
248
in cases where the rent is to be paid annually in the periods fixed in the regulation
issued by Region 14 Administration (Art. 14(3)) What is the possible remedy do you
think? How about the case of lease of buildings where the payment of lease is
presumably periodical? Can we think of a right of retention by the lessor for security
as provided under Art. 2924 or can a lessor have a lien right over the property of the
lessee? Or can we resort to the provisions of contracts in general the section relating
to non-performance to look for other means of remedies such as forced performance as
an alternative because termination is the remedy readily available?

When the lessor fails to undertake the repairs without delay that are incumbent upon
him and necessary for the exploitation of the immovable after having been duly
informed by the lessee, the latter may have them executed at his expense and retain
their cost, with legal interests thereon, from the rent payable by him if he deems it
appropriate, depending on the circumstances. Claim damages and, when he prefers,
terminate the contract (Art. 2920). But, the lessee also has the obligation to conduct
certain repairs whether contractual or legal as provided under Art. 2954 specifically.
The general remedy under Art. 2931(1), termination, is of application, and where
appropriate damage maybe awarded. But, like the power given to the lessee, can the
lessor have the repair at his own expense and claim from the lessee or can he claim
forced performance?

When the lease agreement is terminated for whatever reason, the lessee has the
obligation to return. Art. 2940 provides that when the thing is lost or deteriorated after
he has received it, the lessee is liable- particularly where such loss or deterioration is
caused by a person of his household or by a person he has admitted to the immovable.
However, he is not liable if it is because of the fault of the lessor or a fortuitous event.
It is true also if it results from the normal and lawful use of the thing Art. 2941.
However, if the immovable is lost or deteriorated by whatever cause while he is in
possession of the thing in default, he remains always liable Art. 2942. But, what if ,
without deterioration, the lessee refuses to deliver?
249
This question seems to be absurd.

Review Questions

1. What is lease? What are its elements?
2. What is the nature of the contract?
3. What are the objects of lease?
4. It is a real right? Why or why not?
5. Is there any difference between:
a. Government and private lease?
b. Lease of buildings and lands?
c. Lease of land or of buildings for business and dwelling
d. Why or why not?

6. The farmer is paying land use fee. Does it make his use of land lease? Why or why
not?
7. What is the extent of application of the provisions of he civil code?

* * *

250
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Table of Laws

1. Essential Supplies (Requisition) Proc. 1942, Proc. No. Negarit Gaz. 10, Year 1 No.
1
2. Declaration o Motor Vehicles Proc. 1942 Proc. 11 Nega. Gaz. Year 1 No. 2
3. Enemy Property Proc. 1942 Proc. 22 Nega. Gaz., Year 1 No. 3
4. Slavery (Abolition) Proc. 1942 Proc. 22 Nega. Gaz. Year 1 No. 6
5. Transport Proc. 1943, Proc. 35 Nega. Gaz. Year 2 No. 7
6. Transport Regulations, 1943 Proc. 16 Nega. Gaze. Year 2 No. 7
7. Entertainment (censorship Proc. 1943 37 Nega. Gaz., Year 2 No. 7
8. Pounding of Stray Animals Order of 1954, Legal Notice 191 Nega. Gaz. Year 14 No.
3
9. Arms Regulations 1960 Legal Notice 229 Nega. Gaz. Year 19. No.7
10. Arms (Amendment) Regulations, Legal Notice, 1961 No. 240 Year 20 No. 18.
11. Arms (Extension) Regulations, Legal Notice, 1962, No. 256 Year 21 No. 10
12. Vehicle Size and Weight Regulations, Legal Notice 1962 No. 261 Year 22 No. 2
13. Arms (second Extension) Regulations, Legal Notice, 1961 No. 240 Year 20 No. 188
14. State Forest Proc. No. 225, 1965 Nega. Gaz., Year 24, No. 17
15. Private Forest Conservation Proc. No. 226, 1965 Nega. Gaz. Year 24 No. 17
16. Protective Forest Proc. No. 227, 1965, Nega. Gaz. Year 24 No. 17.
17. Registration of Aircraft Regulations Legal Notice, 1965 No. 306 Nega. Gaz. Year24
No. 18
18. Antiquities Proc. 229 1966 Nega. Gaz. Year 25 No. 7
268
19. Ethiopian Antiquities Administration Order 1966 No. 45 Nega. Gaz. Year 25 No.
17.
20. Protection of State Forests Regulations. Legal Notice, 1968, No 3343 Nega. Gaz.
Year 28 No. 1
21. Protection of State Forests Regulations. Kegal Notice, 1968 No. 344 Nega. Gaz.
Year 28 No. 1
22. Exploitation of State Forests Regulation Legal Notice, 1968 No. 345 Nega. Gaz.
Year 28 No. 1
23. Exploitation of Private Forests Regulations Legal Notice, 1968, No. 346 Nega. Gaz.;
year 28 No. 1
24. Management of Protective Forests Regulations, 1968 No. 347, Nega. Gaz; Year 28
No. 1
96. Establishment of Community Forests Regulations, 1968 No. 348 Legal Notice Nega.
Gaz;
Year 28 No. 1
26. Powers of Rangers Regulation Legal Notice 1968; No. 349 Nega. Gaz. Year 28, No.
1
27. Powers of Forest Guards Regulations Legal Notice 1968; No. 350 Nega. Gaz. Year
25, No. 1
28.Trade of Saw Logs and Veneer Logs Regulations Legal Notice 1968 No. 351 Nega.
Gaz.
Year 28 No. 1
29. Motor Vehicle and Trailer (Identification, registration and Inspection) Regulations,
Legal Notice 1969, No. 360 Nega. Gaz. Year 28 No. 9
30. Special Commercial Vehicle Registration Regulations, 1969 Legal Notice No. 370,
Nega. Gaz. Year 28 No. 21
31. Wildlife Conservation order, 19700 Order No. 65 Year 30 No. 4.
32. Mining Proc. No. 282, 1971, Nega. Gaz. Year 30, No. 123.
33. Mining Regulations No. 396 1971 Nega. Gaz. Year 30 No. 20.
269
34. National Water Resources Commission order 1971 No. 75 Nega Gaz. Year 31 No.
3.
35. Wildlife Conservation Regulations, 1971 Legal Notice No. 416 Nega. Gaz. Year 31
No. 7.
36. Addis Ababa Water and Sewerage Authority Proc. No. 298. 1972 Nega. Ga. Year 31
No. 12.
37. Addis Ababa Water and Sewerage Authority Regulations 1973, Legal Notice No.
432 Nega. Gaz. 32 Year No. 15.
38. Wildlife conservation (Amendment) Regulations Legal Notice 1974, No. 445 Nega.
Gaz.
Year 33, No. 9
39. Ethiopian Broadcasting service Proc. No. 5 1975 Nega. Gaz. Year 34 No. 12
40. Public ownership of Rural Lands Proc. No. 5, 197 Nega Naz. Year 34 No. 26
41. Government ownership of urban Lands and Extra Houses Proc. No. 47, 1974 Nega.
Gaz.
Year 34 No. 41
42 Ethiopian Broadcasting service Regulations 1975 No. 20 Legal Notice Nega. Gaz.
Year 34, No. 42
43. Agency for the Administration Rented Houses Establishment Proc. 1975, Nega. Gaz.
Year 35 No. 6
44. Rural Land use Fee and Agricultural Activities Income Tax-Proc. No. 77, 1976,
Nega. Gaz. Year 35 No. 19.
45. Addis Ababa Special Commercial Vehicle Registration Regulations Legal Notice
NO. 31, 1976, Nega. Gaz. Year 35 No. 21
46. Urban Land Rent and urban House Tax Proc. 80 1975, Nega. Gaz. 35 No. 25.
47. Addis Ababa Special Commercial Vehicle Registration Regulations Legal Notice
No. 31, 1976, Nega. Gaz. Year 35. No., 21
48. Compensation Commission Establishment Proc. No. 70, 1975 Nega. Gaz. Year 35
No. 14
270
49. Compensation Commission Establishment (Amendment) Proc. No. 121 1977 Nega.
Gaz.
Year 36 No. 24
50. The Ethiopian Roads Authority Proc. 133, 1978 Nega. Gaz. Year 37 No. 4
51. Urban Land Rent and Urban Houses Tax (Amendment) Proc. No. 161, 1979 Nega.
Gaz. Year 38 No.9
52. Provincial urban Land Rent and urban House Tax Regulations Legal Notice 64,
1979 Year 38 No. 9
53. Ethiopian Transport Construction Authority Establishment Proc. 189, 1980 Nega.
Gaz. Year 39 No. 16
54. Ethiopian Water Works Construction Authority Establishment Proc. No. 190, 1980.
Nega. Gaz. Year 39, No. 16
55. Ethiopian Building Construction Authority Establishment Proc. No. 191, 1980
Nega. Gaz. Year 30, No. 16
56. Forest and Wildlife Conservation and Development Proc. 192, 1980 Nega. Gaz.
Year 39, No. 17
57. Water Supply and Sewerage Authority Establishment Proc. 219, 1981, Nega Gaz.
Year Proc. 219, 1981, Nega. Gaz. Year 31 No. 3
58. Purchase and use of Vehicles Proc. No. 277, 1985 Nega. Gaz. Year 44, No. 8
59. Construction and Use of Urban Houses Proc. No. 292, 1986 Nega. Gaz. Year 45 No.
3
60. Standardization of Construction of Dwelling Houses Regulations No. 92, 1986
Nega. Gaz. Legal Notice Year 45 No. 3.
61. Sale of urban Houses Regulations, Legal Notice No. 93, 1986 Nega. Gaz. Year 45
62. Co-Dwelling Regulations Legal Notice, No. 94, 1986, Nega. Gaz. Year 45 No. 3
63. Urban Zoning and Building Permit Proc. No. 316, 1987, Nega. Gaz. Year 46 No. 15
64. Registration of Aircraft (Amendment) Regulations No. 99, 1987. Legal Notice Year
46, No. 19
65. Study and Protection of Antiquities Proc. No. 36, 1987, Nega. Gaz. Year 49 No. 4
271
66. Construction and use of Urban Houses Proc. Amendment Council of State Special
Decree. No. 15, 1990 Nega. Gaz. Year 49, No. 9
67. Ethiopian Roads Authority Establishment Council of State Special Decree No. 6,
1990, Nega. Gaz. 50 Year No. 3
68. Transitional period Charter, No. 1, 1991, Nega. Gaz., Year 50. No. 1
69. Mining Proc. No. 52, 1992, Nega. Gaz. Year 52 No. 42
70. Road Transport Regulation Proc. No. 14, 1992 Nega. Ga., Year 51 No. 10
71. Encouragement, Expansion and coordination of Investment Proc. No. 1982 Nega.
Gaz. Year 51, No. 11
72. Urban Lands Lease Holding Proc. No. 80, 1993 Nega. Gaz. Year 53 No. 40
73. Water Resources Utilization Proc. No. 92, 1994 Nega. Gaz. Year 53, No. 78
74. Forestry Conservation, Development and Utilization Proc. No. 94, 1994, Year Nega.
Gaz. 53, No. 80
75. Review of Properties Taken in Violation of the Relevant Proclamations Proc. No.
110, 1995, Nega. Gaz. Year 54, No. 8
76. Ethiopian Roads Authority Re-establishment Proc. Amendment Proc. No. 122,
1995, Nega. Gaz. Year 54, No. 23
77. Inventions, Minor Inventions and Industrial Designs Proc., No. 123, 1995, Nega.
Gaz. Year 54, No. 25
78. The 1931 Ethiopian Constitution, Art. 27, 34, 75, 76
79. The 1955 Revised Constitution, Arts. 43 and 44, 8
80. The 1987 PDRE Constitution, Arts. 12, 13, 15, 16, 17, 18,
81. The 1991 Transition Period Charter of Ethiopia, Art. 1
82. The 1994 FDRE Constitution, Arts. 40, 97
83. The Eritrean Constitution As Ratified 11
th
Sept., 1952 Arts. 22(C) and 37
84 "x" K M S{ "q& fUp #} K-M S} Uhk" HOE& 30 f
1966 .O. Art. 26, 136, 137 and 139.
85. Council of State Special Decree On Investment, Decree No. 17, 1990, Nega. Gaz.
Year, 49, No. 12.

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Addis Ababa, Ethiopia

, it does not mean that there is no limit for the exercise of

See the discussion on goods

See the discussion on Possession.

the phrase "Incorporeal

See the discussion on classification of things into corporeal and incorporeal

of a work to be communicated to the public

To fix a work is to embody a work in a medium, which is sufficiently permanent or stable to

If the author lived the

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