Party Autonomy in International Property Law - Peace Palace Library

3. The Numerus Clausus and Party Autonomy in the Law of Property
the legislature agreed to slightly relax the restrictions on party autonomy
resulting from this principle by offering parties several statutory possibilities
to adapt, limit or expand the powers and obligations arising from a
limited property right they have created.
In addition, the legislature made it possible to give proprietary effect to
certain types of obligations in respect of land by registering them in the
land register. As a general rule, the obligation must be one to allow certain
action to be taken or to refrain from taking certain action in respect
of the obligor’s land (dulden of niet doen), and not an affirmative one (in
faciendo). If registered, such an obligation is binding upon acquirers of that
land pursuant to Article 6:252 BW. Even though belonging to the law of
obligations, this type of obligation, which binds the obligor in his capacity
as owner of the land (kwalitatieve verplichting), can be seen as a statutory
expansion of the numerus clausus (the Typenzwang). 15
It is not in the nature of Dutch courts to explicitly embrace a dogma such
as the numerus clauses or any other dogma. Moreover, in the 19 th century,
the courts appeared willing to afford parties the freedom to create new
types of property rights. This changed after the 1905 landmark decision
of the Hoge Raad in Blaauboer / ​Berlips. 16 In that case, the court held that
the obligation of an owner of land to construct a road on adjacent plots
had not passed to his successor in title to the land because (i) the obligation
did not take the form of a property interest, (ii) as an obligation in
faciendo, it could not constitute a property interest and (iii) it had not
been registered in the public land register.
Since that decision, and in particular since the 1992 Burgerlijk Wetboek,
Dutch courts have referred occasionally to the closed system of Dutch
property law. More importantly, they have seemed inclined to interpret
the statutory rules of property law rather strictly.
Nevertheless, Dutch scholars continue to disagree on the scope of the
numerus clausus. Lurking behind discussions regarding terminology is
15
In the common law, such obligations can be compared to covenants running
with the land.
16
HR 3 March 1905, W. 8191. See further S.E. Bartels and J.M. Milo, Contents
of Real Rights: Personal or Proprietary – a Principled History, in: Contents
of Real Rights, S.E. Bartels en J.M. Milo (eds.), Wolf Legal Publishers, 2004,
p. 5-23.
T.H.D. Struycken 63
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