Party Autonomy in International Property Law - Peace Palace Library

B. Private International (Property) Law
This feature is not to be found in the internal relation between the owner
and the object of ownership, but must be looked for in the relation between
the owner and third parties. It means that civil ownership is –
traditionally – a unitary ownership. Only one person can have the ‘most
comprehensive’ (residuary) property rights on a good at a given time. 25
This is also called the ‘exclusive’ nature of ownership. In other words,
ownership is the right of its holder to exercise powers with regard to a
good to the exclusion of others. The powers of a full owner cannot be in
competition with the powers of another. 26
The importance of the exclusive nature of ownership can be justified
and explained in a historical perspective. 27 Before codification, the
feudal system was grounded in a layered concept of ownership, which
made the distinction between dominium utile and dominium directum.
The exclusivity of ownership innovated by creating a non-layered
owner ship right, which contradicts the legal instrument building a
feudal society. In doing so, the legislator aimed to distance itself from
the concept of feudal ownership. As stated, this feature is implicitly
provided in the French Civil Code through the words ‘in the most
comprehensive way’, but is more explicitly part of the definitions provided
by later Codes, such as the German Civil Code (§ 903 BGB)
and the Dutch Civil Code (Art. 5:1 Dutch Civil Code). Hence, the
exclusivity of ownership was, at the beginning of the 19 th century, a
key notion of ownership. Therefore, it is not surprising that all legal
systems have struggled with legal institutions trying to challenge the
unitary nature of ownership.
Contextual property law research has demonstrated that one of the major
developments in European property law is that the exclusivity of owner-
25
H. de Page, Traité élémentaire de droit civil belge, Brussels, Bruylant, 1974,
V, n°. 893A; J. Hansenne, Les biens, Liège, 1996, I, 584, nr. 632; F. van Neste,
Eigendom morgen, Tijdschrift voor Privaatrecht 1983, 484, nr. 5.
26
Co-ownership is not an exception to the exclusive nature of ownership, as
the powers of a co-owner are not general powers but are limited to specific
powers subject to specific requirements, in such a way that the rights of the
other co-owners are respected.
27
As has been explained supra, this historical explanation is questionable for
the numerus clausus principle in general, but is accountable for some aspects
of it.
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Vincent Sagaert
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