Party Autonomy in International Property Law - Peace Palace Library

B. Private International (Property) Law
6.2. The closed system of property rights in
French and Belgian law
6.2.1. Historical introduction: prevailing view
It is generally thought that French private law provides for the foundations
of the closed system of property law (numerus clausus) throughout
Europe. According to general opinion, it would not be possible to create
property rights that have not been recognised as such by the legislator.
This principle would, again according to general opinion, be the result of
a revolutionary reaction against the feudal system at the end of the 18 th
century. This feudal system was founded in the mixing of obligatory duties
and property rights. The entitlement to a layer of a ‘property right’ could
entail numerous personal and positive duties in relation to the feudal
Lord. The interconnection between personal obligations and property
rights was the legal basis for a social model that the early 19 th century
legislator aimed to abolish. In acting against this structure, property law
would have to be defined in a stricter fashion, and delimited in a clearer
manner, in order to take away the legal foundations of the feudal system.
The strict limitation of the number of property rights would therefore be
the legal counterpart of party autonomy in the field of obligations.
This view is seen to be hazardous when one looks into the French Civil
Code itself. This not only emerges from the absence of express recognition
of the numerus clausus but also from the system of transfer of movable
property rights, which has been adopted by the French legislator.
In the field of transfer, obligatory effects and proprietary effects have been
combined in Article 1138 C.C., which provides that the transferee of
property rights becomes owner of the transferred goods from the moment
of delivery, and that moment is situated at the moment of the agreement
between parties. In other words, the obligatory aspects (rights and obligations)
and the proprietary effects of the sales agreement are concurring
and are triggered by the same event (e.g. the consensus). 4 Thus, the
4
Article 1138 provides in its original French version: “L‘obligation de livrer
la chose est parfaite par le seul consentement des parties contractantes. Elle
rend le créancier propriétaire et met la chose à ses risques dès l‘instant où elle
a dû être livrée, encore que la tradition n‘en ait point été faite, à moins que le
débiteur ne soit en demeure de la livrer; auquel cas la chose reste aux risques
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Vincent Sagaert
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