Party Autonomy in International Property Law - Peace Palace Library

3.
The Numerus Clausus and
Party Autonomy in the Law of Property
T.H.D. Struycken *
3.1. Introduction
The numerus clausus in the law of property concerns the general principle
that the number of property rights is limited and these rights cannot be
expanded or modified by individual parties according to their specific
wishes and needs. The numerus clausus implies that the law of property
is mandatory; there is no room for party autonomy.
The numerus clausus is sometimes called one of the great dogmas of the
civil law legal systems. Its characterisation as dogma is illustrative of its
status: emblematic, enigmatic, elusive, fundamental and controversial. In
an article published in 1953, Vera Bolgár famously stated:
“The numerus clausus rule, which has no apparent practical value,
might well be left to the museum of Begriffsjurisprudenz.” 1
This strong statement as well as the traditional view that the numerus
clausus is characteristic of civil law legal systems and unknown to the
common law call for an investigation of the scope, origin and justification
of the numerus clausus principle.
The numerus clausus is better known in the Netherlands as the ‘closed
system’ of property law (het gesloten systeem van het goederenrecht). It is unclear
where either term comes from. The 1888 explanatory Motive to the
draft text of the German BGB spoke of ‘die geschlossene Zahl’ of property
*
Professor of European Property Law (Utrecht University), finance and insolvency
lawyer (NautaDutilh N.V., Amsterdam).
1
Vera Bolgár, Why No Trusts in the Civil Law?, (1953) 2 Am.J.Comp. Law
214.
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