Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
the buyer needs more than an expectancy of ownership, not only to protect
his interest against actions by the seller or third party that affect the
property, but also to be able to capitalise on it through a transfer or pledge.
Retention of title therefore runs counter to the underlying philosophy of
the system of Dutch property law.
On the other hand, there is the controversial provision in Article 3:85
BW under which a transfer of ownership for a set period of time is converted
by operation of the law into the creation of a right of usufruct.
This rules out the possibility of temporary ownership in Dutch property
law. This provision, which many find difficult to explain, fits in perfectly
with Meijers’ views on an efficient and pragmatic manner of organising
property law. The usufruct provides the intended temporary owner with
the use and fruits of the property for a limited period of time, while the
intended subsequent owner already gets a bare ownership right, which not
only gives him locus standi to protect his future interest but also enables
him to trade it for value.
Thus, the system developed by Meijers consists of three categories of
entitle ments in respect of an asset: personal rights, proprietary rights and
what can best be described as proprietary powers in respect of an asset.
Examples of the latter, apart from the powers of a bewindvoerder, are the
powers of a liquidator (faillissementscurator) in respect of the assets in an
insolvent’s estate and the powers of a notary and a lawyer in respect of
client money in a special account (kwaliteitsrekening).
Such proprietary powers over someone else’s property, which powers
should be carefully distinguished from rights (subjectieve rechten), are exceptional
in nature and exist only where prescribed by statute: there is a
separate numerus clausus of such extraordinary proprietary powers. 40 As a
consequence, parties cannot split ownership in ways not provided for by
statute. More specifically, the numerus clausus prevents parties from splitting
off a power comprised in a property right and conferring that power
40
A subjective right (subjectief recht) differs from a ‘proprietary power’ in that a
subjective right can be transferred, seized by a third party and pass by universal
succession (vatbaar voor overdracht, beslag en overgang onder algemene titel),
whereas none of these is possible with a proprietary power. As a consequence,
what happens if the holder of a special proprietary power dies or ceases his
activities is determined entirely by statute. See further Struycken, o.c. 2007,
§ 7.8 and 7.9.
76
T.H.D. Struycken
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