Party Autonomy in International Property Law - Peace Palace Library

3. The Numerus Clausus and Party Autonomy in the Law of Property
prime interest. Conferring full title on a creditor instead of only a security
interest would give him more rights and powers than he needs and
would constitute an “overdistribution” (overbedeling) of rights and powers
to that creditor. The issue here is not so much one of justice as one of
pragmatism in the organisation of the law: the aim of the fiducia-verbod
is to provide the debtor with sufficient standing in law (locus standi), by
way of a bare ownership right, to enable him to safeguard his interest in
the asset controlled by the creditor. As a result of forcing such parties to
create a pledge instead of transferring ownership for fiduciary purposes,
ownership remains with the debtor, who therefore retains his locus standi
and can safeguard his interests. Furthermore, this enables him to profit
from his ownership interest by transferring it (subject to the security interest)
or creating a second right of pledge. 38
Similar reasons explain the prohibition of fiducia cum amico. If it is necessary
for one party’s property to be administered by another who is more
careful or competent, it does not make sense, according to Meijers, to
deprive the incompetent party of his full ownership and grant it to the
other party, who requires only powers of administration. In such cases,
the legislature should opt to confer those powers on the administrator
and give them effect against both the owner himself and third parties. Instead
of the English-style trust, Meijers proposed to expand the old Dutch
concept of bewind. 39 The essence of this concept is that the party whose
property is made subject to the bewind by a court (the onderbewindgestelde),
remains the owner, but loses a number of his ownership powers: the powers
of administration and of disposal are conferred on the administrator
(bewindvoerder). Thus, the administrator gets the powers he needs, and
the incompetent party is not deprived of more than is necessary.
In the light of this, two phenomena in current Dutch property law should
be mentioned. On the one hand, there is the implicit statutory recognition
of the retention of title clause as a valid security device that can be
invoked against other creditors of the buyer. Retention of title is functionally
so close to a transfer of ownership for fiduciary purposes that the difference
in treatment is hard to explain. Equally important is the pragmatic
dimension: the seller does not need more than a security interest, whereas
38
See Struycken, o.c. 2007, § 7.4.2.
39
E.M. Meijers, De trustee en het burgerlijk recht (recensie preadviezen BCN
1927), WPNR 2998 (1927), p. 413-416, VPO III, p. 184. See Struycken, o.c.
2007, § 7.5.3.
T.H.D. Struycken 75
© sellier. european law publishers
www.sellier.de