Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
in respect of which the right has been granted, by succession (whether
universal or singular); (v) the trustee in bankruptcy of the owner of the
asset; (vi) those who levy an attachment of the asset; and (vii) generally
all those who somehow risk to interfere with the asset without asserting
rights of their own, such as those who cross somebody else’s land or collide
with somebody else’s car.
To resolve the conflict between numerus clausus and party autonomy in
the law of property, it is insufficient to simply state that property rights
affect third parties and are ‘absolute’; a proper analysis requires pinpointing
who precisely is affected by the right and in which circumstances.
Only then will it be possible to argue convincingly either that the law of
property and the law of contract should be differentiated as far as party
autonomy is concerned or, alternatively, that party autonomy should be
extended to the law of property.
Furthermore, it is important to discuss the safeguards against potential
excesses of party autonomy, such as the rules on publicity, on the protection
of a bona fide acquirer of a right from someone who lacks full title to
the relevant asset, the rules against abuse of power and the courts’ powers
to modify or terminate a property right in exceptional circumstances. If
the necessary limits to party autonomy are made explicit, this will help
to make party autonomy in the law of property more acceptable than it
used to be.
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T.H.D. Struycken
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