Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
of property. The hallmarks of the Pandectist thinking on party autonomy,
the concept of ownership, the concept of a thing, free transferability and
the protection of bona fide purchasers became ever more apparent in
Dutch legal doctrine. They now characterise Dutch property law, as enacted
in the 1992 Burgerlijk Wetboek, in very many ways. 21
3.4. The numerus clausus in other legal systems
It used to be widely believed that the numerus clausus in the law of property
was part of the civil law but not of the common law. 22 Indeed, many
civil legal systems recognise the numerus clausus as a fundamental principle
of their law of property, although such recognition is mainly in doctrine
and case law; few codes contain explicit provisions on the numerus
clausus. Closer comparative analysis shows, however, that the status of the
numerus clauses in civil law and common law countries is not always as
supposed and the distinction between them on this point is blurred.
Strikingly, French law itself is not thought to endorse the numerus clausus.
On the basis of the classic Caquelard case 23 , decided in 1834, many – but
not all – authors submit that French law is characterised by party autonomy
in the field of property law. 24 In practice, however, the French
courts tend to adhere to the types of property rights laid down in the Code
civil and other statutes. There appear to be very few examples of cases
that could be said to recognise some new kind of property right. In the
field of proprietary security interests, French law is strongly dominated by
special legislation. It took a special statute in 1980, the Loi Dubanchet,
21
See more extensively Struycken, o.c. 2007.
22
See René David, Les grands systèmes de droit contemporains, 1 st edition 1964,
no. 311 (‘Conception anglaise des tenures’), with a reference to F.H. Lawson,
The Law of Property, 1958, p. 59; F.H. Lawson, in: International Encyclopedia
of Comparative Law, Volume VI, Property and Trust, F.H. Lawson (ed.),
Chapter 2, Structural Variations in Property Law, 1975, p. 138, § 2-274 and
§ 2-35.
23
Req. 13 février 1834, D.P. 34.1.218, S. 34.1.205 (Caquelard c. Lemoine); also
published in: F. Terré / ​Y. Lequette, Les grands arrêts de la jurisprudence civile,
11th ed. 2000, tome 1, no. 60 (9th ed. no. 58).
24
See for references Struycken, o.c. 2007, p. 250-252; Akkermans, o.c. 2008,
p. 167.
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T.H.D. Struycken
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