Numerus clausus (law)

The numerus clausus is a concept of property law which limits the number of types of right that the courts will acknowledge as having the character of "property". Several consequences follow from a right having the nature of property, as opposed to being a personal right, like a contract or obligation to pay compensation. Historically, the law has given privileged remedies to the holders of property rights over personal claims. These have included priority in payment from an insolvent debtor, a greater likelihood of being awarded specific performance, and security in remaining in possession of land or some other asset against termination of the right to possess. It holds especial importance in land law and corporate law.^[1]

History

The numerus clausus principle has its roots in Roman law.^[2]

United Kingdom

In the United Kingdom, and particularly in the jurisprudence of the English courts, it is well established that individuals cannot freely create new categories of property right themselves: it has to be recognised by courts. This was held to be true in the 19th century in Keppell v Bailey^[3] and Hill v Tupper^[4] as a matter of public policy. In the 20th century, in National Provincial Bank Ltd v Ainsworth^[5] with a more open approach, Lord Wilberforce stated that

“

Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.

”

A widely held view is that a numerus clausus, or a property right limit, serves to protect wealth in the scope where it already exists, and does not need extension.^[6] This tends to be contested on the basis acknowledgement of property rights simply masks a privilege for people who have enough bargaining power to exercise the freedom of contract for the various privileges that property rights confer, such as priority in insolvency, security of tenure, a right to trace or follow an asset, and a greater likelihood of specific performance as a remedy.

Under English law today, there are fourteen property rights in the numerus clausus, as follows.^[7]

• (1) freehold ownership
• (2) easements, for the benefit of another piece of land, right to use land in a certain way, e.g. right of way
• (3) restrictive covenants, for the benefit of another piece of land, a restriction on the owner’s use, e.g. to not build
• (4) leases, exclusive possession for a defined period of time
• (5) mortgages, a security to take possession of land if an obligation is unfilfilled
• (6) rights under trusts, entitling beneficiaries to something
• (7) licenses coupled with an interest, allowing someone to enter to gain access to assets
• (8) profit a prendre, rights allowing one person to enter and take things like coal, timber or game
• (9) rentcharges, since the Rentcharges Act 1977 only in exiguous circumstances, a right to own land in return for periodical payments to someone else
• (10) rights of entry, especially found with leases and rentcharges if rent is not paid
• (11) estate contracts, rights arising where parties intend to create or purport to create some other right but have not yet done so
• (12) options and pre-emption rights, i.e. to demand a right under specified conditions
• (13) ‘mere equities’, rights to rescind a transaction if it is vitiated by mispresentation, undue influence and so on, under the Land Registration Act 2002 ss 115–116(b)
• (14) home rights, i.e. to occupy a home by virtue of a family relationship under the Family Law Act 1996 s 30

Before the Law of Property Act 1925, the life estate and the entail would have also counted as property rights, but they were abolished except as beneficial interests under a trust.

Germany

In German law the numerus clausus principle has a constitutional foundation^[8] and limits property rights in their number (Typenzwang) and content (Typenfixierung).

Europe

Other European states show equal doctrines.^[9]

Theory

There are competing views about the desirability of having a limited numerus clausus of property rights, as well as what counts as having a proprietary quality.^[10]

See also

• English land law

Notes

1. A Kellner "A Description of the System of Estates in England and Germany in the 18th Century on the Basis of German Travel Reports" ISBN 978-3-638-28068-6; J.M. Moringiello "Towards a system of estates in virtual property" International Journal of Private Law, vol. 1, nr. 1–2 / 2008 pp. 3–13
2. F Parisi "THE FALL AND RISE OF FUNCTIONAL PROPERTY" George Mason Law & Economics Research Paper No. 05-38 2005
3. (1834) 2 My & K 517, 535–6
4. (1863) 2 H & C 121
5. [1965] AC 1175
6. S Gardner, An Introduction to Land Law (2009) 11–12
7. S Gardner, An Introduction to Land Law (2009) 9–13
8. A Peukert "Güterzuordnung als Rechtsprinzip" (Mohr Siebeck, 2008) ISBN 978-3-16-149724-7;
   V. Jänich "Geistiges Eigentum – Eine Komplementärerscheinung zum Sacheigentum?" (Mohr Siebeck, 2002) ISBN 978-3-16-147647-1
9. B. Akkermans, "The Principle of Numerus Clausus in European Property Law" (Antwerpen/Oxford/Portland: Intersentia, 2008) ISBN 978-90-5095-824-0;
   T.H.D. Struycken, "De Numerus Clausus in het Goederenrecht" (Deventer: Kluwer, 2007) ISBN 978-90-13-04105-7;
   L David "Ist der Numerus clausus der Immaterialgüterrechte noch zeitgemäss?" Aktuelle Juristische Praxis (AJP), 1995
10. TW Merrill, HE Smith "Optimal standardization in the law of property: the numerus clausus principle" Yale Law Journal, 10/2000; H Hansmann, R Kraakman "Property, contract, and verification: the Numerus Clausus problem and the divisibility of rights" The Journal of Legal Studies, 2002

References

Articles

• T Merrill and H Smith, ‘Optimal Standardization in the Law of Property: The Numerus Clausus Principle’ (2000) 110 Yale Law Journal 1
• H Hansmann and R Kraakman, ‘Property, Contract and Verification: The Numerus Clausus Problem and the Divisibility of Rights’ (2002) 31 Journal of Legal Studies 373