Party Autonomy in International Property Law - Peace Palace Library

B. Private International (Property) Law
Although it had nothing to do with the proprietary implications of the
amendment, the decision of the French Constitutional Court was highly
applauded by the most authoritative French scholars. Crocq and Aynès
called the aforementioned amendment the gate to a restoration of feudalism.
34 Indeed, as the fiduciaire would not have the full right of ownership,
but only a fiduciary right of ownership, this would mean that another
layer of the ownership right would vest on behalf of the beneficiary,
which would create a splitting up of ownership. Under the 2007 Act, legal
scholars have indeed justified the obligation of segregation on behalf of
the trustee by making reference to the absence of property protection on
behalf of the beneficiary. However, the protection of the fiduciary property
against the private creditors of the fiduciaire demonstrates that the
beneficiary is entitled to a proprietary protection. Is the efficiency (‘opposability’)
of a right in the case of insolvency not the real litmus test for
the question as to whether somebody has property rights?
From a theoretical point of view, there are three possibilities to justify this
proprietary protection: (1) one accepts that this protection is based on a
layer of a property right – which would endanger a major dogma of exclusivity
in French property law; (2) one considers this proprietary protection
as sui generis, which would put at stake the numerus clausus principle; (3)
one considers these fiduciary assets as part of a separate estate (‘patrimony’),
in which case the unity and indivisibility of the estate in French
private law would be at stake. It is clear that the 2009 amendment opted
for the first of these alternatives.
6.4. PIL as an instrument for the opening up
of the legal system?
As we have seen, there is some debate about the general structure of
French and Belgian property law. Most scholars assume the existence of
a numerus clausus principle, which, however, does not exclude party autonomy
on a large scale in property law. Nevertheless, in some areas of
property law this party autonomy is scrutinised for historical reasons. In
the last part of this contribution, we will deal with the issue concerning
34
L. Aynes and P. Crocq, La fiducie préservée des audaces du législateur, Dalloz
2009, (2559) n° 6. See also P. Dupichot, Fiducie et finance islamique, Dalloz
2010, 1064 et seq.
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Vincent Sagaert
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