A NUMERUS QUASI-CLAUSUS OF PROPERTY RIGHTS AS A CONSTITUTIVE ELEMENT OF A FUTURE EUROPEAN PROPERTY LAW I Sjef van Erp Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating th source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract In this article the so-called numerus clausus doctrine of absolute rights is analysed According to the numerus clausus doctrine, the number and content of real rights(rights against the world, d istinguished from merely personal rights) is limited. As such, the numerus clausus doctrine is a characteristic of civil law systems, although it is not unknown in literature on the common law. The question is discussed whether harmonisation of property law in Europe is possible without finding a middle ground between the civil law, which considers the numerus clausus doctrine to be a fundamental part of its property law, and common law, where this doctrine as such is not applied a middle ground could be found if on the one hand, civil law systems would be willing to become more flexible by accepting a numerus quasi-clausus doctrine and, on the other hand, common law systems would be more willing to limit the creation of rights against the world by means of a stand ardisation of these rights Contents I Introductory remarks II The feudal system, the French Revolution and numerus clausus III The role of the numerus clausus doctrine IV Towards a numerus quasi-clausus or standardisation of property rights? I Introductory remarks In his Hamlyn lecture Pragmatism and Theory in English Law, 2 Patrick Atiyah observes four basic distinctions or contrasts between civil law and common law: the logic and experience distinction, the rights and remedies contrast, the principle and precedent contrast I This is a slightly adapted version of an essay published in a Festschrift for Ewoud Hondius on the occasion of his 60th birthday, offered to him by( former)members of the Board of the Netherlands Comparative Law Association: K. Boele-WoelkL, C.H. Brants and G.J. w. Steenhoff(eds ) Het plezier van de rechtsvergelijking Opstellen overunificatie en harmonisatie van het recht in Europa aangeboden aan prof.mr. E.H. Hondius(Deventer: Kluwer, 2003) P Atiyah, Pragmatism and Theory in English Law (london: Stevens Sons, 1987), pp 6 ff
A NUMERUS QUASI-CLAUSUS OF PROPERTY RIGHTS AS A CONSTITUTIVE ELEMENT OF A FUTURE EUROPEAN PROPERTY LAW?1 Sjef van Erp Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract In this article, the so-called numerus clausus doctrine of absolute rights is analysed. According to the numerus clausus doctrine, the number and content of real rights (rights against the world, distinguished from merely personal rights) is limited. As such, the numerus clausus doctrine is a characteristic of civil law systems, although it is not unknown in literature on the common law. The question is discussed whether harmonisation of property law in Europe is possible without finding a middle ground between the civil law, which considers the numerus clausus doctrine to be a fundamental part of its property law, and common law, where this doctrine as such is not applied. A middle ground could be found if, on the one hand, civil law systems would be willing to become more flexible by accepting a numerus quasi-clausus doctrine and, on the other hand, common law systems would be more willing to limit the creation of rights against the world by means of a standardisation of these rights. Contents I Introductory remarks II The feudal system, the French Revolution and numerus clausus III The role of the numerus clausus doctrine IV Towards a numerus quasi-clausus or standardisation of property rights? I Introductory remarks In his Hamlyn lecture ‘Pragmatism and Theory in English Law’,2 Patrick Atiyah observes four basic distinctions or contrasts between civil law and common law: the logic and experience distinction, the rights and remedies contrast, the principle and precedent contrast 1 This is a slightly adapted version of an essay published in a Festschrift for Ewoud Hondius on the occasion of his 60th birthday, offered to him by (former) members of the Board of the Netherlands Comparative Law Association: K. Boele-Woelki, C.H. Brants and G.J.W. Steenhoff (eds.), Het plezier van de rechtsvergelijking. Opstellen over unificatie en harmonisatie van het recht in Europa aangeboden aan prof. mr. E.H. Hondius(Deventer: Kluwer, 2003). 2 P. Atiyah, Pragmatism and Theory in English Law (London: Stevens & Sons, 1987), pp. 6 ff
and, finally, the academic and practical contrast. As such, these four contrasts do not describe the differences between civil law and common law inaccurately, but only if it is taken into consideration that the level of discussion is rather abstract and not based upon historical- comparative analysis. The four contrasts are the result of the historical development of the law and the prevailing legal culture. They should not be seen as a static description of the differences but only as still existing, yet changing, characteristics. Is it still true today that English(or Scottish, Irish, American) lawyers are less inclined to reason logically, only think in terms of remedies and precedent and ignore academic writings? Are civil lawyers(from France, Germany, the Scandinavian countries, Central and Eastern Europe, Turkey and Japan) not interested in experience, but only in rights, principles and academic legal literature? The answer can only be negative. Atiyah certainly recognises this. An English lawyer knows very well how to build a solid argument based upon logical reasoning and a civil lawyer is very much aware of the fact that although his client may invoke an abstract right, this certainly does not always mean victory in a concrete case. Furthermore, in the area of property law it becomes abundantly clear that English lawyers have developed an ability to and special statutes; as abstract and complex, I might add, as can be found in nineteenth. ses construct abstract and complex legal systems of thought out of an enormous amount of ca century German Pandectist legal thinking It is often said that comparative law and legal history are two sides of the same coin comparison. Comparative law is interested in comparison on a horizontal level, legal history on a vertical(diachronic)level. Especially in the area of property law, a historical comparative analysis very often proves to be revealing. 4 Not only does this approach explain the existing law from two perspectives, it can also give ind ications as to the direction in which the law is developing In this paper, based on the historical-comparative method, I would like to focus on a central concept of civil property law: the numerus clausus of absolute rights. Accord ing to the numerus clausus doctrine the number of absolute rights and their content is closed. Is this rigid doctrine really necessary? Could(and should )it be less rigorous and more open to innovation? A more open approach, towards a numerus quasi- clausus, might be the way towards a well-reasoned and gradual acceptance of common law institutions and concepts such as the trust, in the civil law. The civil law will be compared with the common law approach and it will be attempted to find common ground between(civil law) theory and (common law) pragmatism II The feudal system the french revolution and numerus clausus For a better understand ing of the importance of numerus clausus in civil law systems, som historical remarks are necessary. These will concern the role of the feudal system with respect to property relations and the abolition of the feudal system on the continent of Europe as a result of the French Revolution. Consequently, the principles and rules of property law had to be reformulated on the continent. In England, however, the feudal system was not Atiyah, Pragmatism and Theory, pp. 143 ff. See also my inaugural lecture, held at Maastricht University, Europees Privaatrecht: Postmoderne dilemma's en keuzen. Naareen methode van adequate rechtsvergelij king(Deventer: Kluwer, 1998), also published as European Private Lawv: Postmodern Dilemmas and Choices. Towards a Method of Adequate Comparative Legal Analysis, vol 3. 1 ELECTRONIC JOURNAL OF COMPARATIVE LAW,(August 1999)
and, finally, the academic and practical contrast. As such, these four contrasts do not describe the differences between civil law and common law inaccurately, but only if it is taken into consideration that the level of discussion is rather abstract and not based upon historicalcomparative analysis. The four contrasts are the result of the historical development of the law and the prevailing legal culture. They should not be seen as a static description of the differences but only as still existing, yet changing, characteristics. Is it still true today that English (or Scottish, Irish, American) lawyers are less inclined to reason logically, only think in terms of remedies and precedent and ignore academic writings? Are civil lawyers (from France, Germany, the Scandinavian countries, Central and Eastern Europe, Turkey and Japan) not interested in experience, but only in rights, principles and academic legal literature? The answer can only be negative. Atiyah certainly recognises this.3 An English lawyer knows very well how to build a solid argument based upon logical reasoning and a civil lawyer is very much aware of the fact that although his client may invoke an abstract right, this certainly does not always mean victory in a concrete case. Furthermore, in the area of property law it becomes abundantly clear that English lawyers have developed an ability to construct abstract and complex legal systems of thought out of an enormous amount of cases and special statutes; as abstract and complex, I might add, as can be found in nineteenthcentury German Pandectist legal thinking. It is often said that comparative law and legal history are two sides of the same coin: comparison. Comparative law is interested in comparison on a horizontal level, legal history on a vertical (diachronic) level. Especially in the area of property law, a historicalcomparative analysis very often proves to be revealing.4 Not only does this approach explain the existing law from two perspectives, it can also give indications as to the direction in which the law is developing. In this paper, based on the historical-comparative method, I would like to focus on a central concept of civil property law: the numerus clausus of absolute rights. According to the numerus clausus doctrine, the number of absolute rights and their content is closed. Is this rigid doctrine really necessary? Could (and should) it be less rigorous and more open to innovation? A more open approach, towards a numerus quasi-clausus, might be the way towards a well-reasoned and gradual acceptance of common law institutions and concepts, such as the trust, in the civil law. The civil law will be compared with the common law approach and it will be attempted to find common ground between (civil law) theory and (common law) pragmatism. II The feudal system, the French Revolution and numerus clausus For a better understanding of the importance of numerus clausus in civil law systems, some historical remarks are necessary. These will concern the role of the feudal system with respect to property relations and the abolition of the feudal system on the continent of Europe as a result of the French Revolution. Consequently, the principles and rules of property law had to be reformulated on the continent. In England, however, the feudal system was not 3 Atiyah, Pragmatism and Theory, pp. 143 ff. 4 See also my inaugural lecture, held at Maastricht University, Europees Privaatrecht: Postmoderne dilemma’s en keuzen. Naar een methode van adequate rechtsvergelijking (Deventer: Kluwer, 1998), also published as European Private Law: Postmodern Dilemmas and Choices. Towards a Method of Adequate Comparative Legal Analysis, vol 3.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (August 1999), <http://www.ejcl.org/ejcl/31/art31-1.html>
abolished and remained the -legal-technical-basis of property law. The same applies to countries which derive their property law system from English law, such as Ireland The feudal system came to England from Normandy as a result of the norman Conquest after the Battle of Hastings in 1066. It was, both on the continent of Europe and in England, not only a legal system; it was first of all a political and social framework. b The feudal system created a bond between the king and a tenant-in-chief, between the latter and a mesne lord or between a mesne lord and a vassal. Rights to land were granted in return for services. Gradually, the feudal system developed into a system of land law. 7 In English law, the historical roots of property law can be seen in the continued use of the concepts'tenure and'estate'. Land is held(not owned'in the civil law sense) and the tenant is entitled to an estate. Various types of estates can be distinguished, but an essential characteristic of each estate is time. The two major types are the freehold (unlimited duration) and the leasehold (limited duration). Under English law this system of landholding became even more complex and intricate because of the development of a duplex ordo: common law and equity. It made thinking about property rights even less absolute than it already was and it also created an atmosphere in which legal thinking could be infused with economic notions. 8 If A holds common law estate in land(e.g. A is a freeholder), but his spouse B spends money from which both A and B profit, B can be given equitable rights in the land: A then becomes trustee for himself and b as beneficiaries of a trust As I already mentioned above, on the continent of Europe the feudal system was abolished as a result of the French Revolution. Also fundamental human rights were formulated and it was the person of the citoyen(citizen) who became the focus of political and legal thinking. 9 The citoyen as a free and equal person, bound by the duties of J.C.W. Wylie and J. Kenny, Irish Land La(dublin: Butterworths, 1997), pp 8 ff. 6 Cf R.C. van Caenegem, An Historical Introduction to Private Law(Cambridge: Cambridge University Press, 1992),P. 20. See also the definition in Blacks Law Dictionary(St. Paul, Minn: West Publishing Co 1990)sub voce feudal system:.. A political and social system which prevailed throughout Europe during the eleventh, twelfth and thirteenth centuries, and is supposed to have grown out of the peculiar usages and policy of the Teutonic nations who overran the continent after the fall of the Western Roman Empire, as developed by the exigencies of their military domination, and possibly furthered by notions taken from the Roman jurisprudence... Cf the definition in David M. Walker, The Oxford Companion to Law(Oxford Europe as a system of administration, jurisdiction, miltary service, and land tenure ized over much of western Clarendon Press, 1980)sub voce "Feudalism Feudalism thus came to be recogn ∴. See also jh.m.van Erp, 'Via open normen naar Europees goederenrecht, in S.E. Bartels and J.M. Milo(eds ) Open normen in het goederenrecht(The Hague: Boom Juridische Uitgevers, 2000), pp. 61 ff, especially pp 67 ff See, e.g., A W.B. Simpson, A History ofthe Land Law(Oxford: Clarendon Press, 1986), pp. I ff,SH Goo, Sourcebook on Land La(London/Sydney: Cavendish Publishing, 2002), pp. I ff. see also J.-A MacKenzie and M. Philips, Textbook on Land Law(Oxford: Oxford University Press, 2002), pp. 3 ff 8 It is, therefore, no coincidence that the econom ic analysis of the law was developed and first applied by American and English lawyers. It will also come as no surprise that law and econom ics scholars frequently conclude that the common law(almost by nature)inclines towards reaching efficient results. But this conclusion is also, at least partially, caused by the self-perception of the common la wyer. You recognise what you were trained to observe and were taught to regard as an important value The feudal concepts of " tenure'and'estate underwent a process of transformation and as a result have become formats at common lawand in equity that enable maximum economic use of land and buildings. Legal Law of Property(Oxford: Oxford University Press, 2002), Pp 169/L. See F.H. Lawson and B.Rudden. The thinking and economic analysis show close links in this area of the la See, from a historians viewpoint, S Schama, Citizens: A Chronicle of the French Revolution ( London Penguin Books, 1989), pp. 428 ff. The ideology underly ing legal thinking during and after the French
abolished and remained the - legal-technical - basis of property law. The same applies to countries which derive their property law system from English law, such as Ireland.5 The feudal system came to England from Normandy as a result of the Norman Conquest after the Battle of Hastings in 1066. It was, both on the continent of Europe and in England, not only a legal system; it was first of all a political and social framework.6 The feudal system created a bond between the king and a tenant-in-chief, between the latter and a mesne lord or between a mesne lord and a vassal. Rights to land were granted in return for services. Gradually, the feudal system developed into a system of land law.7 In English law, the historical roots of property law can be seen in the continued use of the concepts ‘ tenure’ and ‘estate’. Land is ‘held’ (not ‘owned’ in the civil law sense) and the tenant is entitled to an ‘estate’. Various types of estates can be distinguished, but an essential characteristic of each estate is time. The two major types are the freehold (unlimited duration) and the leasehold (limited duration). Under English law this system of landholding became even more complex and intricate because of the development of a duplex ordo: common law and equity. It made thinking about property rights even less absolute than it already was and it also created an atmosphere in which legal thinking could be infused with economic notions.8 If A holds a common law estate in land (e.g. A is a freeholder), but his spouse B spends money from which both A and B profit, B can be given equitable rights in the land: A then becomes trustee for himself and B as beneficiaries of a trust. As I already mentioned above, on the continent of Europe the feudal system was abolished as a result of the French Revolution. Also, fundamental human rights were formulated and it was the person of the citoyen (citizen) who became the focus of political and legal thinking.9 The citoyen as a free and equal person, bound by the duties of 5 J.C.W. Wylie and J. Kenny, Irish Land Law (Dublin: Butterworths, 1997), pp. 8 ff. 6 Cf. R.C. van Caenegem, An Historical Introduction to Private Law (Cambridge: Cambridge University Press, 1992), p. 20. See also the definition in Black’s Law Dictionary (St. Paul, Minn.: West Publishing Co., 1990) sub voce ‘feudal system’: ‘. . . A political and social system which prevailed throughout Europe during the eleventh, twelfth and thirteenth centuries, and is supposed to have grown out of the peculiar usages and policy of the Teutonic nations who overran the continent after the fall of the Western Roman Empire, as developed by the exigencies of their military domination, and possibly furthered by notions taken from the Roman jurisprudence. . . .’. Cf. the definition in David M. Walker, The Oxford Companion to Law (Oxford: Clarendon Press, 1980) sub voce ‘Feudalism’: ‘. . . Feudalism thus came to be recognized over much of western Europe as a system of administration, jurisdiction, military service, and land tenure. . . .’. See also J.H.M. van Erp, ‘Via open normen naar Europees goederenrecht’, in S.E. Bartels and J.M. Milo (eds.), Open normen in het goederenrecht (The Hague: Boom Juridische Uitgevers, 2000), pp. 61 ff., especially pp. 67 ff. 7 See, e.g., A.W.B. Simpson, A History of the Land Law (Oxford: Clarendon Press, 1986), pp. 1 ff.; S.H. Goo, Sourcebook on Land Law (London/Sydney: Cavendish Publishing, 2002), pp. 1 ff.; see also J.-A. MacKenzie and M. Philips, Textbook on Land Law (Oxford: Oxford University Press, 2002), pp. 3 ff. 8 It is, therefore, no coincidence that the economic analysis of the law was developed and first applied by American and English lawyers. It will also come as no surprise that law and economics scholars frequently conclude that the common law (almost by nature) inclines towards reaching efficient results. But this conclusion is also, at least partially, caused by the self-perception of the common lawyer. You recognise what you were trained to observe and were taught to regard as an important value. The feudal concepts of ‘tenure’ and ‘estate’ underwent a process of transformation and as a result have become formats at common law and in equity that enable maximum economic use of land and buildings. Legal thinking and economic analysis show close links in this area of the law. See F.H. Lawson and B. Rudden, The Law of Property (Oxford: Oxford University Press, 2002), pp. 169 ff. 9 See, from a historian’s viewpoint, S. Schama, Citizens: A Chronicle of the French Revolution (London: Penguin Books, 1989), pp. 428 ff. The ideology underlying legal thinking during and after the French
brotherhood and entitled to fundamental rights, came first, not a person's status based upon class distinctions or so-calledseignorial rights. Legal thinking was transformed, a change prepared by academic scholars and political philosophers. Legal scholars were greatly influenced by the study of Roman law, from which a development towards scholarly, highly abstract and systematic, legal thinking had resulted. without this, codes could not have been The codes were also the expression of the ideals of equality and freedom. Thy orecise manner clearly in the area of contract law(freedom of contract). In the area of property law, this is somewhat different. Of course, property law too applies to all citizens and to all objects, and is thus the expression of the ideal of equality. but the ideal of freedom could not be applied here to the same degree as in contract law. The old order of the feud al system had to be and remain abolished. Property law is, generally speaking, of a mandatory nature, limiting the freedom of parties to create rights against the world abolished the feudal system, but did not replace it with new rules -led to a completely ably This process of change after 1789- the year in which the French National Assembly different system of property law. It was(and still is)unitary in nature: the basic principles of property law apply to all objects(real and personal property ). As already remarked above, property rules are mandatory law, unless certain, albeit limited, freedom is given to the parties. Ownership-the most complete absolute right, in respect to both content and duration that a subject can have in regard to an object- can only exist in the form a non-fragmented unitary right. 0 All other absolute rights are limited real rights. Third parties must be informed about absolute rights, as they are bound by those rights without their consent. As to movables, the publicity which is necessary to justify that third parties have to accept the existence of absolute rights is closely linked with possession. Regard ing immovables, third parties are informed through registration systems. Finally, the number, content, creation, transfer and extinction of absolute rights is regulated by the law. This is what civil lawyers call the numerus clausus of absolute rights This numerus clausus cannot be isolated from the other basic aspects of civil property law that I mentioned Simple nthe area of property law, the ideals of the French Revolution have resulted in a universal scheme, which is aimed at reaching legal certainty, predictability and transparency. In the following pages, I will elaborate on the role and function of the numerus clausus doctrine in civil law systems and defend the idea that standardisation of rights against the world"nI is certainly useful and desirable but should not be as strict as it is in Revolution still is of considerable influence today. Not surprisingly, the new Dutch Civil Code begins with rules regarding the subjects of private law (naturaland legal persons)in Books One and Two, followed by rules that govern the interactions between these subjects and the various rights these persons can have in regard to (physical and non-physical)objects. Of course, exceptions exist. Matrimonial property law can be found in Book one 10 Cf. Article 17 of the Declaration des Droits de l'Homme et du Citoyen( Declaration of the French National Assembly of26 August 1789 ): La propriete etant un droit inviolable et sacre, nul ne peut en etre prive, si ce n'est lorsque la necessite publique, regalement constatee, I'exige evidemment, et sous la condition dune juste et prealable indemnite ' (Since property is an inviolable and sacred right, no one sha ll be deprived thereof except where public necessity, legally determ ined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified. The expression rights aga inst the world can be compared with absolute rights in the civil law sense. It hould be bome in mind, however, that rights aga inst the world(absolute sometimes only apply to most, but not all, or even only a lim ited category of third parties. An example of lim itation is the protection of a bona fide third party acquirer a gainst the original owner who, e.g,, avoided a sales contract with his purchaser, in a situation where the purchaser in his tun had sold and transferred the object Under Dutch law, the causal system of transfer applies, but still-of course under certa in conditions-the bona fide third party will not lose
brotherhood and entitled to fundamental rights, came first, not a person’s status based upon class distinctions or so-called ‘seignorial rights’. Legal thinking was transformed, a change prepared by academic scholars and political philosophers. Legal scholars were greatly influenced by the study of Roman law, from which a development towards scholarly, highly abstract and systematic, legal thinking had resulted. Without this, codes could not have been enacted, as the essence of a code is that it lays down rules in a systematic and precise manner. The codes were also the expression of the ideals of equality and freedom. This can be seen clearly in the area of contract law (freedom of contract). In the area of property law, this is somewhat different. Of course, property law too applies to all citizens and to all objects, and is thus the expression of the ideal of equality. But the ideal of freedom could not be applied here to the same degree as in contract law. The old order of the feudal system had to be and remain abolished. Property law is, generally speaking, of a mandatory nature, limiting the freedom of parties to create rights against the world. This process of change after 1789 - the year in which the French National Assembly abolished the feudal system, but did not replace it with new rules - led to a completely different system of property law. It was (and still is) unitary in nature: the basic principles of property law apply to all objects (real and personal property). As already remarked above, property rules are mandatory law, unless certain, albeit limited, freedom is given to the parties. Ownership - the most complete absolute right, in respect to both content and duration, that a subject can have in regard to an object - can only exist in the form a non-fragmented unitary right.10 All other absolute rights are ‘limited’ real rights. Third parties must be informed about absolute rights, as they are bound by those rights without their consent. As to movables, the publicity which is necessary to justify that third parties have to accept the existence of absolute rights is closely linked with possession. Regarding immovables, third parties are informed through registration systems. Finally, the number, content, creation, transfer and extinction of absolute rights is regulated by the law. This is what civil lawyers call the numerus clausus of absolute rights. This numerus clausus cannot be isolated from the other basic aspects of civil property law that I mentioned. In the area of property law, the ideals of the French Revolution have resulted in a simple, universal scheme, which is aimed at reaching legal certainty, predictability and transparency. In the following pages, I will elaborate on the role and function of the numerus clausus doctrine in civil law systems and defend the idea that standardisation of ‘rights against the world’11 is certainly useful and desirable, but should not be as strict as it is in Revolution still is of considerable influence today. Not surprisingly, the new Dutch Civil Code begins with rules regarding the subjects of private law (natural and legal persons) in Books One and Two, followed by rules that govern the interactions between these subjects and the various rights these persons can have in regard to (physical and non-physical) objects. Of course, exceptions exist. Matrimonial property law can be found in Book One. 10 Cf. Article 17 of the Déclaration des Droits de l’Homme et du Citoyen (Declaration of the French National Assembly of 26 August 1789): ‘La propriété étant un droit inviolable et sacré, nul ne peut en être privé, si ce n’est lorsque la nécessité publique, légalement constatée, l’exige évidemment, et sous la condition d’une juste et préalable indemnité.’ (Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.) 11 The expression ‘rights against the world’ can be compared with absolute rights in the civil law sense. It should be borne in mind, however, that rights against the world (absolute rights) sometimes only apply to most, but not all, or even only a limited category of third parties. An example of such a limitation is the protection of a bona fide third party acquirer against the original owner who, e.g., avoided a sales contract with his purchaser, in a situation where the purchaser in his turn had sold and transferred the object. Under Dutch law, t he causal system of transfer applies, but still - of course under certain conditions - the bona fide third party will not lose
some civil law countries. I will defend that, without endangering the enormous advantages that the French Revolution brought to property law, some openness will prove beneficial instead of a numerus clausus a numerus quasi- clausus should be adopted III The role of the numerus clausus doctrine Before i discuss the role of the numerus clausus doctrine in more detail, it may be useful to reflect briefly upon the distinction between the object of a property right and the legal relation constituting the rights/duties between subjects in regard to such an object. These two aspects of property entitlements should be distinguished clearly. In what follows, I will focus on the right of ownership, not on other absolute rights. It should be borne in mind, however that what applies to the right of ownership mutatis mutandis also applies to limited real rights The object of a right of ownership(very often simply called ownership' ) can be a is,nevertheless, part of a person's patrimony and can, as such, be the object of a right or rao corporeal thing(movable or immovable) as well as a right. 2 To give an example of the latte a contractual right, although personal in nature and which only binds the parties to a conti ownership The effect is that it can be transferred to someone else. Whether you limit the right of ownership' to rights regarding corporeal things(as is done in the new Dutch Civil Code)or not is a matter of legal terminology, closely related to the legal terminology and the structure of the legal system in which this particular term is used. a good example of a very broad definition of the term can be found in article l of Protocol l of the european Convention on Human rights Every naturalor legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of intemationallaw. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 3 Legal theorists have examined at great length what the object of ownership(and consequently, the object of rights derived from ownership, such as security interests)can be.4 This has led, e.g., Charles Reich to express the view that new property should be his right of ownership. Cf Articles 3: 86(movables)and 3: 88(registered property, such as land)new Dutch Civil Code A notorious problem is whether goodwill can be an object of property law. This question was only recently decided by the Hoge Raad(Netherlands Supreme Court)in its decision of31 May 2002, Rechtspraak vandeWeek2002,89,alsotobefoundonthewebsiteoftheDutchJudiciaryshttp://www.rechtspraak.n> Incorporated goodwill(the surplus value of all the property in an enterprise)can be'propertyas such-and thus an object of property law -in the sense of Article 3: 1 Dutch Civil Code. Non-incorporated goodwill is not property. (Article 3: 1 reads as follows: "Property is comprised of all things and of all patrimonial rights. See E.A. Halkema, The Concept of Property-in Particular in the European Convention on Human Rights, in J.P. Loof, H Ploeger and A. van der Steur(eds ) The Right to Property: The Influence of Article I Protocol No. I ECHR on Several Fields of Domestic Law(Maastricht: Shaker Publishing, 2000), pp 17 ff. For a summary of case law, see B Mensah, European Human Rights Case Summaries 1960-2000(London/Sydney Cavendish Publishing, 2002), p 1176 See, among many others, M.J. Horwitz, The Transformation of American La 1780-1860(Cambridg Mass /London: Harvard University Press, 1977), pp 31 ff. idem, The Transformation of American Law 1870 1960: The Crisis of Legal Orthodoxy(New York/Oxford: Oxford University Press, 1992),pp 145 ff, KJ Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of
some civil law countries. I will defend that, without endangering the enormous advantages that the French Revolution brought to property law, some openness will prove beneficial: instead of a numerus clausus a numerus quasi-clausus should be adopted. III The role of the numerus clausus doctrine Before I discuss the role of the numerus clausus doctrine in more detail, it may be useful to reflect briefly upon the distinction between the object of a property right and the legal relation constituting the rights/duties between subjects in regard to such an object. These two aspects of property entitlements should be distinguished clearly. In what follows, I will focus on the right of ownership, not on other absolute rights. It should be borne in mind, however, that what applies to the right of ownership mutatis mutandis also applies to limited real rights. The object of a right of ownership (very often simply called ‘ownership’) can be a corporeal thing (movable or immovable) as well as a right.12 To give an example of the latter: a contractual right, although personal in nature and which only binds the parties to a contract, is, nevertheless, part of a person’s patrimony and can, as such, be the object of a right of ownership. The effect is that it can be transferred to someone else. Whether you limit the ‘right of ownership’ to rights regarding corporeal things (as is done in the new Dutch Civil Code) or not is a matter of legal terminology, closely related to the legal terminology and the structure of the legal system in which this particular term is used. A good example of a very broad definition of the term can be found in Article 1 of Protocol 1 of the European Convention on Human Rights: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.13 Legal theorists have examined at great length what the object of ownership (and, consequently, the object of rights derived from ownership, such as security interests) can be.14 This has led, e.g., Charles Reich to express the view that ‘new property’ should be his right of ownership. Cf. Articles 3:86 (movables) and 3:88 (registered property, such as land) new Dutch Civil Code. 12 A notorious problem is whether goodwill can be an object of property law. This question was only recently decided by the Hoge Raad (Netherlands Supreme Court) in its decision of 31 May 2002, Rechtspraak van de Week 2002, 89, also to be found on the web site of the Dutch Judiciary: <http://www.rechtspraak.nl>. Incorporated goodwill (the surplus value of all the property in an enterprise) can be ‘property’ as such - and thus an object of property law - in the sense of Article 3:1 Dutch Civil Code. Non-incorporated goodwill is not property. (Article 3:1 reads as follows: ‘Property is comprised of all things and of all patrimonial rights.’) 13 See E.A. Halkema, ‘The Concept of Property - in Particular in the European Convention on Human Rights’, in J.P. Loof, H. Ploeger and A. van der Steur (eds.), The Right to Property: The Influence of Article 1 Protocol No. 1 ECHR on Several Fields of Domestic Law (Maastricht: Shaker Publishing, 2000), pp. 17 ff. For a summary of case law, see B. Mensah, European Human Rights Case Summaries 1960-2000 (London/Sydney: Cavendish Publishing, 2002), p. 1176. 14 See, among many others, M.J. Horwitz, The Transformation of American Law 1780-1860 (Cambridge, Mass./London: Harvard University Press, 1977), pp. 31 ff.; idem, The Transformation of American Law 1870- 1960: The Crisis of Legal Orthodoxy (New York/Oxford: Oxford University Press, 1992), pp. 145 ff.; K.J. Vandevelde, ‘The New Property of the Nineteenth Century: The Development of the Modern Concept of