Party Autonomy in International Property Law - Peace Palace Library

6. Party Autonomy in French and Belgian Law
lease or building right or – to a certain extent – to the usufructuary of a
parcel of land.
Three requirements can be set out as essential features of servitudes: (1)
it is a burden on land (2) in favour of land, and (3) the servient tenement
and the dominant tenement have a different owner. From a historical
perspective, it is logical that the legislator was reluctant in relation to
servitudes, as they were the modern translation of feudal burdens. These
requirements have gradually been opened up and applied in a more flexible
manner. 23 Nevertheless, even taking into account the gradually more
extensive application of these requirements, they restrict the scope of
servitudes within strict limits. We will not go into further detail with
regard to these devices, as they are related to real estate and thus do not
raise any issue of private international law.
6.3.2. Exclusivity of ownership
Other subject matter in which the sensitivity and strictness of the closed
system of property rights is witnessed can be found with regard to this
ownership feature, and more precisely in the feature that ownership must
be exclusive. This feature has been at stake in recent debate with regard
to the French ‘fiducie’ device. The definition of ownership in French and
Belgian private law is to be found in Article 544 Civil Code, which provides
that
‘ownership is the right to enjoy and dispose of things in the most comprehensive
manner, provided they are not used in a way prohibited by
statutes or regulations.’
As historical research has demonstrated, the wording of ‘in the most comprehensive
manner’ in Article 544 of the French Civil Code did not refer
to the absoluteness of ownership. The real meaning of the words was to
be found at the level of the exclusive nature of ownership. 24
23
See on this point V. Sagaert, The fragmented system of land burdens in French
and Belgian law, in: S. van Erp and B. Akkermans (eds.), Towards a unified
system of land burdens, Antwerpen, Intersentia, 2006, 31-52.
24
See for example R. Derine, De grenzen van het eigendomsrecht in de 19 e eeuw,
Antwerpen, De Sikkel, 1955.
Vincent Sagaert
127
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