Party Autonomy in International Property Law - Peace Palace Library

3. The Numerus Clausus and Party Autonomy in the Law of Property
to give effect to a retention of title clause vis-à-vis other creditors of the
acquirer. Almost all developments in French property law are the result
of legislation.
Another legal system that supposedly does not endorse the numerus clausus
principle is that of South Africa, one of the few legal systems that are
often characterised as ‘mixed’ because of their origins in both common
and civil law. Closer analysis reveals here as well that the South African
courts have developed strict criteria for judging whether or not to recognise
a new type of property interest. Property law in South Africa is
therefore strictly regulated, if not by statute then by the courts. 25
Common law systems also display a different picture than once believed.
Many scholars from the common law tradition now think that the numerus
clausus characterises the legal systems of many countries sharing
that tradition as much as it does those of the civil law countries. Merrill
and Smith conclude:
‘In the final analysis, the idea that property interests may be created
only in limited numbers of standardized forms has a very odd status
in the common law. If one observes what lawyers and judges do, it is
clear that the numerus clausus exerts a powerful hold on the system
of property rights. (..) from the perspective of the practicing lawyer,
the entire system presents the picture of a fixed menu of options from
which deviations will not be permitted. The chances of persuading a
court to create a new type of property in any particular case are too
remote to be taken seriously. In this respect, property law has always
been and continues to be very different from contract law.
If one examines the official doctrine and the reasoning of the few cases
that test the validity of the idea, however, the numerus clausus appears
to have penetrated the consciousness of the common-law lawyers only
weakly. Perhaps the best characterization of the status of the numerus
clausus in American common law is that it is simply a fact about the
way in which the system of property rights operates. The fact is so
patent and obvious, so deeply entrenched, that it is rarely commented
25
See C.G. van der Merwe, Numerus Clausus and the Development of New Real
Rights in South Africa, in: Contents of Real Rights, o.c. 2004, p. 99-113, and
M.J. de Waal, Identifying Real Rights in South African Law: the ‘Subtraction
from Dominium’ Test, in: Contents of Real Rights, o.c. 2004, p. 83-98.
T.H.D. Struycken 67
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