Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
a device used by municipal authorities to impose restrictions concerning
the location, use and external appearance of buildings and a vehicle for
structuring complex building projects.
These three questions regarding the creativity allowed by the numerus
clausus principle automatically raise the issue of the consequences of an
infraction. Nullity is one option; mere contractual effect (whereby the
right cannot be invoked against third parties or by successors) is another.
In some cases, the application by analogy of the set of rules governing
the alternative property right (samenloop) may provide the protection
envisaged by the numerus clausus. Lastly, a property right modified beyond
the limits of the numerus clausus could be converted by operation of law
into another type of property right. The answers to these questions under
Dutch law are not yet clear. 42
3.9. The future of the numerus clausus
The question of whether there is a future for the numerus clausus in the law
of property should be addressed broadly, because the whole of Savigny’s
model for private law is at stake. One cannot assess the significance of the
numerus clausus without also taking into account the notion of ownership,
the third party effects of powers and obligations that result from property
rights, the rules on transfer restrictions and the protection of bona fide
purchasers. The whole system is geared towards enhancing the free flow
of goods, and also safeguarding legal certainty and foreseeability for those
involved with property of others in one way or another. The underlying
reasons for a numerus clausus, be they ethical, economic or organisational
in nature, have not lost their appeal.
The Dutch legal system, however, shows a tendency towards shifting control
from the phase in which rights are created (ex ante) to the phase in
which they are exercised (ex post). The 1992 Burgerlijk Wetboek contains
a fairly complete framework of imprévision provisions, which give courts
discretionary power to, upon request, limit, change or even abrogate property
rights in re aliena when they have, over the course of time, become
disproportionately onerous to the parties involved, or run counter to the
42
See further Struycken, o.c. 2007, ch. 8.
78
T.H.D. Struycken
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