Party Autonomy in International Property Law - Peace Palace Library

3. The Numerus Clausus and Party Autonomy in the Law of Property
doctrinal tendency to favour party autonomy in both domestic and international
property law. 46 Party autonomy is difficult to oppose as a general
principle. It is consistent both with prevailing political views on the position
of the individual in relation to his society, and with the practical
needs imposed by an increasingly complex global economy. Furthermore,
there is not a single argument against it that is both simple and persuasive.
However, the discussion among legal commentators on the extent
to which party autonomy should be given a place in the law of property
sometimes seems to lack detail and precision.
In order to understand the impact of party autonomy in the law of property,
it is important to identify exactly whose interests are at stake. The
reason why the law of property – in contrast to that of contract – is mandatory
is generally said to be that property rights are binding on third parties,
whereas contractual rights and obligations merely bind the parties to
the contract. Property rights are traditionally presented as absolute rights
which can be opposed and invoked against third parties. Such parties
could be prejudiced if, through an agreement, new types of rights in rem
could be created, existing types could be modified or new methods losing
or acquiring a right in rem could be devised. If and to the extent such a
real right imposes an affirmative duty to act (in faciendo), the third party’s
interest becomes even acuter.
But who, precisely, are these third parties? To whom, and to what extent,
does it make a difference whether a right is characterised, or created,
as either contractual or proprietary? To determine the impact of party
autonomy in the law of property, it is essential that these questions be
answered with a sufficient level of detail. Several categories of relevant
parties should be distinguished, apart from the holder of the right in respect
of the asset owned by another person: (i) those who succeed to that
right in respect of the asset of another by universal succession (overgang
onder algemene titel); (ii) those who succeed to that right by singular succession
(overgang onder bijzondere titel); (iii) those who have prior rights
in respect of the same asset; (iv) those who acquire ownership of the asset
46
See the outspoken views in favour of more party autonomy expressed by Axel
Flessner, Rechtswahl im internationalen Sachenrecht – neue Anstöße aus
Europa, in: Festschrift für Helmut Koziol zum 70. Geburtstag, 2010 Jan Sramek
Verlag (in translated version: see Chapter 1 in this book on Party Autonomy
in International Property Law, Choice of Law in International Property Law,
New Encouragement from Europe).
T.H.D. Struycken 81
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