Party Autonomy in International Property Law - Peace Palace Library

6. Party Autonomy in French and Belgian Law
(draft Article 608). Its content can be modulated contractually by the
contracting parties as long as they comply with regard to the destination
of the property and the rules of public order. 16 In other words, the front
door of the property house is hermetically sealed, but the back door is
open and ready to host foreigners.
In Belgian law, the Supreme Court has, according to the prevailing view,
confirmed the existence of the numerus clausus principle in the Blieck
judgment of 16 September 1966, in which the obligation to lay out and
maintain a park on the part of a parcel of land in favour of the municipality
was not to be considered as a servitude. The second requirement for
the valid creation of a servitude – that it is vested in favour of a dominant
tenement – was not fulfilled. 17 Even if the weight of this judgment as legal
ground for the closed system is criticisable, 18 the Belgian Supreme Court
gives a clear opinion on the structure of property law. It seems that the
Court aims to make clear that the freedom of contract would be opposite
to the compulsory nature of the statutes with regard to property law.
6.3. The numerus clausus principle is expressed
in two major matters
Despite the weak legal and historical foundations of the principle, the
general starting point is that freedom of contract of the parties is seriously
curtailed by the most fundamental characteristic of property law: namely,
the numerus clausus principle. 19 To repeat the words of Bernard Rudden in
16
This seems to be based on circular reasoning: As the property law is part of
the public order, one cannot create a property law of which the content can
be freely modulated with the exception for matters of public order.
17
Cass. 16 September 1966, Arresten van het Hof van Cassatie 1967, 67, Journal
des Tribunaux 1967, 59, Revue critique de jurisprudence belge 1968, 166, note
J. Hansenne. See also H. de Page, Traité élémentaire de droit civil belge, Brussels,
Bruylant, 1964, I, n° 130; W. van Gerven, Algemeen Deel, in: Beginselen
Belgisch Privaatrecht, Brussels, Story-Scientia, 1987, n° 34.
18
In this judgment, the question of whether new property rights could be created
was an obiter dictum; thus, the result of the judgment did not depend upon
it.
19
For an extensive analysis of the scope of this principle in Belgian law and comparative
perspective, see V. Sagaert, Het goederenrecht als open systeem van
Vincent Sagaert
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