Party Autonomy in International Property Law - Peace Palace Library

3. The Numerus Clausus and Party Autonomy in the Law of Property
general interest. 43 More generally, the provisions on abuse of power and
on objective good faith (redelijkheid en billijkheid) create means for adjusting
the relationship between parties in a concrete case. 44 It remains to be
seen, however, whether these new checks and balances provide sufficient
safeguards. In my view, these new judicial instruments constitute useful
additional tools but cannot fully replace the numerus clausus as a means
for enhancing legal certainty and foreseeability – both key elements of any
law of property – and for facilitating commerce and trade.
The emergence of ex post control mechanisms opens up a new perspective
that could give new significance to the numerus clausus and the closed
system of the law of property. If the doctrines of imprévision, abuse of
power and redelijkheid en billijkheid together reflect a general principle of
proportionality, it becomes worthwhile to investigate which other principles
underlie the law of property. Together with the proportionality principle,
a total of seven principles can perhaps be extracted from the rules
of Dutch property law: the causality principle, being the rule that the
system of transfer of property is causal rather than abstract; the delivery
principle, being the rule that a transfer of ownership does not occur ex
solo consensu but requires delivery or some other formality; the specificity
principle, being the rule that property rights and the creation thereof
require a specific object; the non-splitting principle, being the basic idea
that a property right cannot be split in ways not provided for by statute
and the rule that a property right and an act in respect thereof concern
the whole of the property to which the right relates; the autonomy or
transferability principle, being the concept that property is transferable to
the greatest extent possible and that persons have largely unfettered powers
of disposal; and the publicity principle, being the imperative that the
general public is able to ascertain the property rights of each person, their
content and transfers thereof. The numerus clausus can be understood as
a mandatory system of fundamental principles that underlie the whole of
the law of property. 45
Comparative analysis of other legal systems shows that the numerus clausus
is not merely a choice for or against party autonomy in the law of property;
it is also a matter of the allocation of powers between the courts and the
43
Articles 5:78, 5:80 and 5:97 and 6:259 BW.
44
Article 3:13 BW (abuse of a power) and Articles 3:166(3), 6:2 and 6:248
BW.
45
See Struycken, o.c. 2007, § 9.5.1. Cf. for Germany Füller, o.c. 2006, passim.
T.H.D. Struycken 79
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