The Numerus Clausus of Property Rights: A European

Principle?

Generally, the theory more spread is the one that property rights may only arise
and exist in forms provided for and pre-defined in their outline by the law. Thai the
core idea of the “numerus clausus” principle, which is further differentiated into the
principles of:
1. predetermined type: means that one may only use those types of property
rights provided for by the law. An example of legal rule illustrating this
principle is found in Spanish Civil Code, article 525 under which property
rights of use and habitation may not be let transferred to another person
under any type of title.
2. predetermined content: means that one may only fill them with a content
accepted by the law.

Heartlands of numerus clausus

The majority of European legal systems consider the principle of “numerus clausus”
as an expression of the perfectly obvious.
Furthermore, the Italian legislator chose to limit this principle in Italian Civil Code,
article 2741(2) to security rights, but courts and scholars agree that it amounts to a
general principle of property law. Thus, it would be impossible to create, through an
autonomous party, property rights other than those provided for by the law. In this
case, the transferability of objects would be hindered if private individuals get the
power to break apart the right of ownership at their discretion. As regard the
property rights in land, reference is made to Italian Civil Code, article 2643 and the
rules on the trascrizione in the land register. Thus, the property rights in land are
limited to a conclusive catalogue and they confirm the general principle.
We must know that even though the principle of “numerus clausus” of property
rights has not been cast into legal form in Germany, the Netherlands and all
Member States of Middle Eastern Europe, it’s still a binding law. In fact, scholars and
courts adhere strictly to it from the overall system of the respective codifications.
The principles of predetermined type and of predetermined content are crucial for
legal certainty and legal clarity: legal relationships related to objects need to be
easily recognized. Thus, fuzzy criteria such as the principle of good faith must be
avoided when dealing with property law.

Ownership as a security right: a contentious issue.

We must know that the commitment to the same principle leas to identical
conclusions. This is proven by the development of the so called security ownership in
movables. According to German courts, this instrument of onwnership would
conflict with the principle that a pledge in movables requires a transfer of
possession and thus with German law’s of numerus clausus. According to the French
courts, instead, security ownership should be denied because French law of
movable property only knows a pledge by transfer of possession while security
ownership is just an attempt to bypass this requirement. In fact, in Austria security
ownership is only recognized where it’s accompanied by a permanent transfer of
ownership to the secured party.

France and Spain: numerus apertus instead of numerus clausus?

Just a few of French scholars consider that it’s impossible to create new property
rights by autonomous party agreement. Some of them say that parties could not be
free to create property rights in their own right. However, not everyone accepts
these arguments. In fact, in the Code Civil, article 543 is written that if one needed a
new law in order to create a property right, parties are capable of creating any rights
not forbidden by ther law, including rights transferring direct power over an object
to their holder. The court of Cassation in 1834 renounced a universal application of
the numerus clausus principle through a decision: thus neither articles 544, 546 and
552 nor other rules prohibit modifications to the right of ownership. So, in France
we can observe a softening of the principle of numerus clausus. However, the
creation of entirely new property rights is exlcluded.
Spanish law, instead, adheres to a numerus apertus (open catalogue) principle. In
fact:
1. the Civil Code lacks a legal basis for a numerus clausus principle
2. the Ley Hipotecaria provides for the possibility to enter into the land register
not only the rights mentioned in the Civil Code but any other right
However, law authorities parties are allowed to modify existing property rights
but they are not free to create entirely new ones.

Numerus clausus principle in English and Irish property law

The English and Irish common law systems allow for the translation of interests in
objects into property rights where objective law provides a corresponding design.
This principle, however, applies only to common law, but not to equity, which is still
in its fertile age. This English Law of Property Act 1925 contains a legal confirmation
of the numerus clausus principle of common law. However, this is principle is
treated as an expression of general idea. In fact, it includes property rights in
movable property. It’s not established by law and it doesn’t amount to a strict
principle of property law. Basically, the English system treats property rights in much
the same way as continental European legal practice: they both assume that
property rights recognized today form a conclusive list, and their changing involves a
legislative act.
All common law property rights can also be created in equity: there is no closed
catalogue of equitable property rights, neither regarding land nor regarding
movables.

Protection of third parties and property law: Sweden

Initially, the law of property was just a delineated area of law. In the area of los
egendom (movable property), it was used to count among the property rights
ownership, pledge, the right to the retention and a few other rights derived from
these three basic forms. Afterwards, from the first half of the twentieth century,
these property rights constituted the Swedish property law. New property rights
could not be created through party autonomy. However, the strict differentiation
between law of property and law of obligations was perceived as unsatisfactory
by the Scandinavian theory: for this reason, they became always more
interconnected. This was possible because Swedish law has never fixed the
numerus clausus principle in legal terms: it doesn’t even apply in Sweden. In fact,
the Swedish legislator gave freedom to the courts to not be limited by absolute
property rights and intead focus on the functional question of the protection of a
given position at law against third parties. Thus, the pression sakratt (law of
property) assumed an ambiguous character: in a narrow sense it refers to
classical rights in corporeal objects; in a wider or functional sense, it refers to all
capacities with effect against third parties in any type of object that can be legally
transplanted.

Conclusion
We can say that there is a real reign of the numerus clausus principle in the
European Union, but a softening of its margins is occurring. The lower the
number of property rights, the more pressing the effects of the numerus clausus
principle, and the higher the pressure on the legislator, the courts and legal
scholarship to provide remedies.
Furthermore, a real creation of entirely new property rights through party
autonomy is very rare. However, modifications of already existing property rights
are common: especially in the law on the use of the land. In addition, there are
regional methodological differences in the law on the protection of rights in
movables in rem.
So, the question whether the numerus clausus principle is a “European principle”
must face the objection, firstly, whether it’s sensible.