Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
further implies that the content of the different types of property rights is
likewise prescribed by statute (Typenfixierung).
Under the wider interpretation of the closed system, the rules on transferability
also appear relevant. Article 3:83(1) BW states that (i) the ownership
of things, (ii) limited property rights and (iii) debts are transferable
unless a statutory provision or the nature of the right dictates otherwise.
Article 3:83(3) BW states that rights other than ownership, limited property
rights and debts are transferable only if a statute so provides. Similarly,
Article 3:80(3) and (4) BW states that assets are acquired or lost in
the manner prescribed for each type of asset by statute. 12
Finally, the controversial Article 3:84(3) BW enshrines the prohibition
of fiduciary transfers of ownership. 13 Any such fiduciary transfer, whether
cum creditore or cum amico, is void. This prohibition is thought to create
an obstacle to all forms of dual ownership and other ways of splitting
ownership not laid down by statute. As such, Article 3:84(3) BW may
be understood as one of the foundations of the numerus clausus in Dutch
property law. 14
The Dutch legislature considered the numerus clausus in some detail in the
1960s and 1970s when it discussed the various drafts of the 1992 Burgerlijk
Wetboek. The explanatory memorandum to the first draft, both written by
the great 20 th century Dutch scholar Eduard Meijers, stated explicitly that
the draft enshrined the numerus clausus principle. Later in the process,
‘except for grounds of preference that are recognised by statute’ (behoudens
door de wet erkende redenen van voorrang), and Article 4:42(1) BW defines a
disposition by last will and testament (uiterste wilsbeschikkingen) as ‘a unilateral
legal act [..], that is provided for in Book 4 BW or is recognised as such by
statute’ (Een uiterste wilsbeschikking is een eenzijdige rechtshandeling [..], die in dit
Boek is geregeld of in de wet als zodanig is aangemerkt.).
12
As used in all these articles, the term ‘statute’ refers to a law enacted by parliament.
Regulations and rules issued or passed by other governmental and local
authorities fall outside the notion of statute.
13
Article 3:84(3) BW reads: ‘A juridical act intended to transfer property for
purposes of security or which does not have the purpose of bringing the property
into the patrimonium of the acquirer, after transfer, does not constitute
valid title for transfer of that property.’
14
See A.H. Scheltema, De goederenrechtelijke werking van de ontbindende voorwaarde,
2003 (thesis Leiden), p. 371, and Struycken, o.c. 2007, § 8.2.4.2.
62
T.H.D. Struycken
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