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Un article de la revue Revue du notariat, diffusée par la plateforme Érudit.
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Accession is the union of two possessions which leads to the eviction of the least important one's owner. It is of benefit to the other one, on condition that he or she gives the former one compensation. This work purpose is to explain the juridical mecanism leading to such effects. The doctrine gives a fragmented analysis of the last mentioned; the acquisition and extinguishment of property would be the result both necessary and automatic of the union ot two corporeal properties. Later however, a restoring based on law would compensate for this property imbalance thanks to the foundation of enrichment without cause and ot the debt of value. Thus, being so strict, such a mecanism leads to criticisms ans disinterest. This works aims to defend a unitary approach to accession. Reconsidering the hypothesis for which accession is legitimately at stake, it turns out that its effects are not laid down, as far as the ownership of the least important possession is concerned. They are rather dictated by positive law; the structural and economic unity created by two possessions must be upheld, beyond the divergences of their appropriation. Accession is thus a real juridical rule that has to be explained. In concrete terms, combining possessions brings about a conflict between their respective owners; they can't make use of their possessions in an exclusive way anymore. So the eviction of the owner of the least important possession will end up the conflict. Such an eviction is the outcome ot the rejection of the action that he or she brings against the main possession's owner. But this action is only rejected as far as it aims to obtain restitution of the possession itself : it can still thrive to obtain its only value. The indemnity paid on the account of accession thus appears as the claim the owner makes to be paid what his or her possession is worth. In this way, the unity of the mecanism of accession is maintained in its two major effects, ei eviction and compensation for the owner ot the least important possession.
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Sylvio Normand, 2006 CanLIIDocs 203
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“No one has advanced a just and logical reason why reward for service to the public should be extended to the inventor of a mechanical toy and denied to the genius whose patience, foresight, and effort have given a valuable new [discovery] to mankind” (Katopis CJ. Patents v patents: policy implications of recent patent legislation. St John’s Law Review 1997;71:329). The law around the world permits the granting of patents for drugs, medical devices, and cosmetic treatment of the human body. At the same time, patentability for a method of treatment of the same body is denied in some countries on various public policy grounds. Is there any logical justification for this distinction? Are methods of medical treatment not as vital to the health or even to the life of a patient as drugs or medical devices? Why is a cosmetic result patentable and a curative result not?
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