Party Autonomy in International Property Law - Peace Palace Library

3. The Numerus Clausus and Party Autonomy in the Law of Property
separately on another person. This is possible only if the power either
takes the form of one of the statutory property rights in re aliena, or is
designated by statute as a special proprietary power.
3.8. Scope and consequences of the numerus clausus
The numerus clausus raises three further questions. 41 First, does the law of
property allow parties to make use of alternative property rights and structures
instead of the statutory property right created for such situations?
For instance, by reshaping and modifying a right of superficies, it seems
possible to replicate a right of emphyteusis without actually choosing this
type of right. Another example is a perpetual right of emphyteusis without
an obligation to pay a charge; such a limited property right mimics
ownership, except that the holder of the right of emphyteusis may incur
some obligations arising from the limited property right which obligations
could not bind him and his successors as owner. In addition, co-ownership
and a transfer subject to a condition subsequent (ontbindende voorwaarde)
could in theory make it possible to circumvent statutory restrictions on
property rights. The extent to which such creativity is allowed under
Dutch property law is unclear.
Secondly, where the law offers a type of property right for a specific situation,
may the parties use the law of obligations to supplement or imitate
that type of property right? The answer to this question is probably yes, but
the likelihood decreases if the alternative achieves almost the same effect
without satisfying the safeguards installed by the law of property.
The third question is whether the numerus clausus allows for an entirely
different application of a certain type of property right in new situations.
A statutory property right can be seen as reflecting a legislature’s choice
to offer that type of right. The legislature will have had in mind the situations
in which that right is to be used. Seen in this perspective, it is not
necessarily self-evident that parties are free to use that type of property
right in a completely different setting in order to meet a completely new
and different need. For instance, the right of emphyteusis has evolved from
a legal framework for the development of raw land for agricultural use to
41
A fruitful source of inspiration is Philipp Heck, Grundriß des Sachenrechts,
1930, §§ 21 and 23.
T.H.D. Struycken 77
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