미국 역권법상 “물적 약정(Covenants)”에 관한 서론적 고찰

Under the U.S. law of servitudes, restrictive covenants break the deadlock between rights in personam and rights in rem. It could derive from the history that restrictive covenants have been incorporated into the area of servitudes. Incorporating such legal effects as running with the land into a restrictive covenants based on contracts might have been rejected, if not recgonized the differences between contracts and property. For a long time, Anglo-American courts and academia have focused on bridging the gap between contract law and property law, where restrictive covenants are often found. The essential theories of restrictive covenants they mobilized, such as "tocuch and concern for the land" and "privity of estate," have now lost their relative importance, but they clearly attempted to give restrictive covenants a property-like character, similar to easement. Furthermore, the fact that the English courts in the past severely limited the scope of recognition of a negative easement by citing its theoretical weakness, and the current U.S. law has replaced the negative easement by a restrictive covenant, can be said to be the result of focusing on the nature of property rights. That is, unlike an affirmative easement, a negative easement is closer to a contractual obligation because the realization of the right depends on whether the owner of the servient land fulfills the obligation of non-action rather than the decision of the right holder to dispose of it. Accordingly, this narrows the scope of application of a negative easement or rather relegates its function to a restrictive covenant based on a contract.