Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
part thereof. The former legal structure is unlikely to be valid, as it runs
counter to the principle that a property right can only concern property
as a whole. The latter structure may be thought to amount to an evasion
of the statutory regime on apartment rights (appartementsrecht).
The third way in which parties sometimes attempt to restrict a property
right is by limiting it in time – the time-dimension. Time restrictions
come in two forms. Firstly, parties may seek to restrict the duration of a
property right itself; in Dutch law, only the right of usufruct is characterised
by mandatory statutory limits on its duration. Secondly, parties
may restrict the right to exercise the powers conferred by the right to some
set period each year. Timeshare is a phenomenon that fits rather uneasily
into the classic notion of a property right. Again, it is often uncertain
whether, for example, the parties intended to create a property right that
exists only on Mondays, or a continuous right that confers powers only
on Mondays. The validity of the former variant of timeshare is even more
doubtful than the validity of the latter.
The three dimensions illustrate the ways in which parties may want to
modify and adapt the types of property rights offered by the law of property.
The room available for party autonomy in this field depends greatly
on the boundaries set by the numerus clausus.
3.7. Dual ownership and the numerus clausus of powers
The statutory prohibition of fiduciary transfers of ownership in Article
3:84(3) BW has banned from Dutch property law the internationally
widely-used technique for securing the repayment of credit by way of a fiduciary
transfer. Furthermore, it cut short a possible development towards
ownership that is split into legal ownership and beneficial ownership,
which is generally regarded as characteristic of the English-style trust.
Fiduciary ownership, whether cum creditore or cum amico, is thought to
create dual ownership, which is difficult to reconcile with the civil law
notion of absolute and exclusive ownership.
The reasons for the fiducia-verbod are a matter of both principle and
pragmatism. In the perception of Meijers, a legal system that separates
legal title (recht) from beneficial interest (belang) is flawed; as a general
principle, the legislature should opt to confer title on the party with the
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T.H.D. Struycken
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