AB - The numerus clausus of property rights is one of the fundamental principles of property law. In all postfeudal legal systems, the basic ways of owning property are limited in number and standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. Copyright 2006 - 2022 The Canadian Center of Science and Education. Numerus clausus can be understood as a principle, but also as a rule, depending on how strictly it is applied. We explore the feasible verification rules for property rights and illustrate the relationship between those rules and the structure of rights they support in the principal fields of property, including use rights to real and personal property, security interests, legal entities, and intellectual property. Numerus clausus also plays a different role within a legal system than it does in respect to the effect of foreign law. > Akkermans, Bram, The Numerus Clausus of Property Rights (November 20, 2015). 0000008417 00000 n This Article demonstrates that this information-cost theory provides a better account for the numerus clausus than do alternative positive and normative views, including those based on network effects, sufficiency of notice, private standards, antifragmentation concerns, and the increasing importance of contract-based rights. > To learn more, visit This principle has prevented messy property arrangements from arising such as an agreement between two people where one owns a watch on Tuesdays and Thursdays, and the other owns it the rest of the week. With this more thorough understanding, the practice of numerus clausus can be examined. 255 0 obj }q}FWUUkv=/^T%p3{o3JS$OTzht0w2u~8AH=+. For centuries, therefore, parties have sought to introduce flexibility in property law to mirror the flexibility they enjoy in contract, marital property law and succession law. Home Every common-law lawyer is schooled in the understanding that property rights exist in a fixed number of forms.

The numerus clausus can be seen at work in a variety of areas, including estates in land, concurrent interests, nonpossessory interests, interests in personal property, and intellectual property. The principle is acknowledged at least by implication in the "catalogue of estates" or "forms of ownership" familiar to anyone who has survived a first-year property course in an American law school. trailer Because of their in rem nature, property rights give rise to third-party information costs in a way that contract rights do not. hb```2 9Ab@Q While the principle has not gone unchallenged during the centuries, a more recent series of decisions of the French Cour de Cassation, known as Maison de Posie, have taken a clear stance against the principle by admitting that it is possible to create, by way of contractual agreement, a right of special enjoyment not known to the law. %PDF-1.6 % <<809CAA0619F0B741B274BFBDDD95FB02>]>> In keeping with the basic information-cost theory, legislative creation and abolition of property rights is likely to lead to lower information costs than would judicial entrepreneurship in this area. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. However, there is an inherent tension in these mandatory rules, both regarding property rights themselves as well as the transactional rules that govern them. 0000009273 00000 n Scholars have justified it as a mechanism for facilitating effective property alienation, maintaining low transaction costs in the buying and selling of property, and keeping the scope of property owners rights clear. Numerus clausus also plays a different role within a legal system than it does in respect to the effect of foreign law. 412, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, Thomas W. Merrill, Columbia Law SchoolFollow They connect the need for flexibility to the increasingly dynamic nature of property law. )I#"+K,~}gg%EE^9sb]/E]gK1h\ux\YDxA Scholarly Works Research output: Chapter in Book/Report/Conference proceeding Chapter Academic. This is supported through a review of JCM, followed by an exploration of the optimal standardization. This item is part of a JSTOR Collection. A sandwich lunch will be available from 12.30. With a personal account, you can read up to 100 articles each month for free. 30 pem,~LU Tg{:I}-Pw e~6] n:pL; "`4 Of course, the law freely allows customization of the more physical, tangible dimensions of ownership rights. 0000002140 00000 n Check out using a credit card or bank account with. This closed in number, or numerus clausus, principle has served property rights well. The justifications for the numerus clausus principle in real property law are even more persuasive in the intellectual property context because the scope of intellectual property rights is more difficult to delineate than the scope of real property rights. Parties can only shape their property rights when they stay within the boundaries provided for by the legal system. , 80 Tenn. L. Rev. >cxS`m)bbx~mjx-hDqe2xnf_a0}`l0d2+[Ip?>78L$-'nsPGFEFE!s\h%7#Re%zO ^6'G;:c/WYqdWqK]wM~?rk]]~.{M%k(n|] %?0*X-ykoW~*Rd$wxF"52?:DkVQWM|J2c(r0m@g^_c{*"pv>u+jV#J. H\Kk0 8>!FA{?

Easements fall within the list of recognised interests in land, and, although their content is formally open, courts have taken precautions against their proliferation by carefully describing what requirements are necessary for their existence. Today, the Journals Division publishes more than 70 journals and hardcover serials, in a wide range of academic disciplines, including the social sciences, the humanities, education, the biological and medical sciences, and the physical sciences. If they fail to be clear about which legal interest they are conveying, or if they attempt to customize a new type of interest, the courts will generally recast the conveyance as creating one of the recognized forms. The principle, however, is by no means limited to estates in land and future interests; it is also reflected in other areas of property law, including landlord-tenant, easements and servitudes, and intellectual property. option. It can be viewed from a legal perspective, but also from a constitutional or economic point of view, which enhances understanding of why the idea of numerus clausus exists as well as understanding of how it is supposed to function.

0000006714 00000 n In land law, it limits the number to less than a dozen comprising the estates, the servitudes and the security interests. Various authors have argued for a less rigid approach to numerus clausus, possibly looking at ex post control rather than ex ante rigidity. Home The parties to a contract are free to be as whimsical or fanciful as they like in describing the promise to be performed, the consideration to be given in return for the promise, and the duration of the agreement. They connect the need for flexibility to the increasingly dynamic nature of property law. This Article adopts this term for the corresponding understanding in the common law and advances an information-cost theory that explains the ubiquity and durability of the doctrine. 0000005601 00000 n 0000003225 00000 n 256 0 obj <> endobj Organised by:Co-hosted with the Property Law Discussion Group. They connect the need for flexibility to the increasingly dynamic nature of property law. The holder of such a right is therefore in a more powerful position than the holder of a personal right, which is a right that is only valid between two, or at least a limited category of persons. Contracts Commons, Much has been done to discover why numerus clausus exists, but not so much on what role it can play in the future development of property law.". They connect the need for flexibility to the increasingly dynamic nature of property law. 1551 0 obj <>stream Accessibility Statement, Optimal Standardization in the Law of Property: The. 0000000636 00000 n Faculty Scholarship For terms and use, please refer to our Terms and Conditions For more information, visit. How do we know a numerus clausus exists and which property rights are part of the numerus clausus? 2002 by The University of Chicago. The numerus clausus of property rights is one of the fundamental principles of property law. 1536 0 obj <>/Filter/FlateDecode/ID[<7E7E38D3EF272147A606F47FE3C4CEDB>]/Index[1521 31]/Info 1520 0 R/Length 78/Prev 283976/Root 1522 0 R/Size 1552/Type/XRef/W[1 2 1]>>stream xref T3 - Research Handbooks in Comparative Law. By considering examples of digital content licensing and fragmentation of particular copyrights, this Article will identify how a numerus clausus principle for intellectual property would facilitate the use and conveyance of intellectual property. 0000008253 00000 n hN}eB][j2WhM? But with respect to the legal dimensions of property, the law generally insists on strict standardization. Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 M. Graziadei and L. Smith, eds., Comparative Property Law: Global Perspectives, Cheltenham: Edward Elgar, 2016, Maastricht Faculty of Law Working Paper No. Apart from very few dissenting voices, the existence of a closed list of property rights is considered a well-established principle of English property law. Accessibility Statement, Privacy 1 0000004886 00000 n 0000000016 00000 n Available at: https://digitalcommons.law.uga.edu/fac_artchop/912, Home | Access supplemental materials and multimedia. Certain types of promises such as promises to commit a crime are declared unenforceable as a matter of public policy. 275 0 obj<>stream HUj@}W.Tk@ Generally speaking, the law will enforce as property only those interests that conform to a limited number of standard forms. [VPdylk?jx 0000031119 00000 n The numerus clausus of property rights is a fundamental principle of property law, referring to the idea that both the number and content of property rights is limited. }3clYkc,\[<5GIvG5QR~TuXm.Bv/_-> :XE~-9}zN8!M1*xk3eA|Hq,v]*_XQk!TTT m/ ~ The numerus clausus principle is one of key metaprinciples of the property law of common law systems. There numerus clausus becomes a defensive mechanism. It emphasizes social science approaches, especially those of economics, political science, and psychology, but it also publishes the work of historians, Request Permissions, Published By: The University of Chicago Press, Read Online (Free) relies on page scans, which are not currently available to screen readers. FAQ | As it operates in practice, the numerus clausus strikes a rough balance between the costs of frustrating parties' objectives on the one hand and the costs of complicating third-party information-gathering on the other. N2 - The numerus clausus of property rights is one of the fundamental principles of property law. How do we know a numerus clausus exists and which property rights are part of the numerus clausus? There numerus clausus becomes a defensive mechanism. >e4O'rK/]$2dMMw;>y>$bt0Me#~ In this article we explore the seminal Canadian case of JCM v ANA and examine how numerus clausus and property no longer remain sufficient tools for delineating individuals rights to tangible goods.Whether the sperm straws in question in JCM are property or not, and whether numerus clausus recognizes a category of property rights where human tissues or fluids capable of providing life or not, are contentious issues, not easily resolved. abstract = "The numerus clausus of property rights is one of the fundamental principles of property law. With this more thorough understanding, the practice of numerus clausus can be examined. This Article will argue that the numerus clausus principle should extend to intellectual property. > By continuing you agree to the use of cookies, Maastricht University data protection policy. The reasons provided for this spring directly from the nature of the closed system of property rights and are therefore worth considering. This page was processed by aws-apollo4 in 0.330 seconds, Using these links will ensure access to this page indefinitely. The rationale that underpins this metaprinciple is the idea that by simplifying the range of rights, it is easier for prospective purchasers to discover how rights over land have been fragmented. My Account |