Party Autonomy in International Property Law - Peace Palace Library

B. Private International (Property) Law
his article ‘Things as things and things as wealth’: “fancies” are for contract,
not for property.’ 20 Unregulated personal rights are allowed as long
as they are not contrary to public order and bona mores, but unregulated
property rights are degraded to personal rights. However, this does not
mean that party autonomy is excluded in the field of property law. Parties
are free to determine the content of property rights, as long as they respect
the basic features of these rights.
With regard to some property rights, the contractual freedom is extensive
(long lease, building rights). However, this freedom is restricted within
two major fields of law, in which French-Belgian property law is quite
restrictive and which belong to the internal public order. It concerns
(A) the strict requirements for servitudes 21 and (B) the exclusive nature
of ownership. We will analyze both these issues in the following paragraphs.
6.3.1. Strict requirements for servitudes
As regards servitudes, French and Belgian law have remained unchanged
since the introduction of the Civil Code in 1804. Art. 637 of the French
and Belgian Civil Code provides a mandatory definition with strict requirements:
a servitude is ‘a charge imposed on a parcel for the use and
utility of another parcel belonging to another owner.’ 22 A servitude merely
allows limited use of the servient tenement, and has to be described expressly
when the servitude is created. They are different from the general
rights to use a piece of land, as they are conferred to the holder of a long
verbintenissen? Poging tot een nieuwe kwalificatie van de vermogensrechten,
3 Tijdschrift voor Privaatrecht, 2005, 983-1086.
20
B. Rudden, Economic Theory v. Property Law: The Numerus Clausus Problem,
in: J. Eeklaar and J. Bell (eds.), Oxford Essays in Jurisprudence, Third Series,
Oxford, Clarendon, 1987, 243.
21
The word ‘servitudes’ is used here because of the civil law nature of the legal
systems that are dealt with. The words ‘land burdens’ or ‘easements’ seem to
be much broader with regard to their scope.
22
This translation and all other English translations from the Civil Code that
are used hereunder are based on the translation on the French governmental
website: http: // ​www.legifrance.gouv.fr. Given the inadequacy of some wordings,
there have been some adaptations.
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Vincent Sagaert
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