accepted that movables and claims could be transferred to a bank for security purposes. +I In fact, the Supreme Court decided that a non-possessory pled ge could be created(or, in other words, a right of mortgage could also rest on movables and claims) in clear violation of the old Civil Code. Problems concerning this transfer for security purposes kept arising and each time had to be resolved by the courts. When the new Civil Code no longer allowed the transfer for security purposes and introduced the non-possessory pledge, the transitory law converted existing transfers for security purposes into this new type of pledge. Courts would never have been able(and competent)to make such a fund amental change in property law could therefore only be done by the legislature. 42 The legislature should be aware of the lead ing role it plays in the structuring of property law and the adaptation of property law to new needs. So far, the Dutch legislature as well as other legislatures in civil law countries-does not seem to realise this. This may change if there is economic pressure to accept new absolute rights. In the Netherlands Antilles, e.g, with its large offshore business it is now being considered to introduce the trust even though the new Dutch Civil Code-albeit it in the area of property law with important exceptions-now also applies on these islands. 43 If the need for change becomes really pressing, courts may have no alternative than to fill the vacuum which the legislature leaves, but this should be done with the utmost care what merrill and Smith as well as hansmann and Kraakman have made abundantly clear to civil lawyers is that the numerus clausus doctrine also serves an economic purpose and that this purpose should always be borne in mind. For that reason, I would argue that the strict civil law numerus clausus doctrine should not be applied as strictly as it is done in, e.g., the Netherlands. It should develop towards a numerus quasi-clausus: some flexibility is needed to regulate new forms of rights in property, such as the trust and time -share arrangements. if the legislature does not act. courts should but with extreme care What civil law could learn here from common law is flexibility, which enables property law to be more responsive to economic developments in the law. What the common law could learn from civil law is that closing legal categories creates more legal security and reduces information costs. The question remains what our starting point should be: common law pragmatism or civil law theory? In my view, neither should be the starting point Historical-comparative analysis, taking into account socio-economic factors, should lead the way towards the most workable approach Hoge Raad 25 January 1929, Nederlandse Jurisprudentie 1929, 616(Brewery case)and Hoge Raad 21 June 1929, Nederlandse Jurisprudentie 1929, 1096(Car case). See Asser-Mijnssen-De Haan, Goederenrecht nos. 468 ff Cf. Article 3: 84(3)Civil Code(the so-called fiducia ban)and Article 86 Overgangswet Nieuw Burgerlijk Wetboek(Transitory Law New Civil Code) 43 This will be a civil law trust, where the trustee will be the sole owner of the trust property and the beneficiary does not have any property entitlements. Cf for the law of Scotland e. Reid, "Scotland(report 1) in V.V. Palmer(ed ) Mixed Jurisdictions Worldwide: The Third Legal Family(Cambridge: Cambridge University Press, 2001),P. 234, and for the law of South Africa C G. van der Merwe, J.E. du Plessis and M.J. de Waal, The Republic of South Africa(Report 2), in Palmer, Mixed Jurisdictions, pp. 194 ff.accepted that movables and claims could be transferred to a bank for security purposes.41 In fact, the Supreme Court decided that a non-possessory pledge could be created (or, in other words, a right of mortgage could also rest on movables and claims) in clear violation of the old Civil Code. Problems concerning this transfer for security purposes kept arising and each time had to be resolved by the courts. When the new Civil Code no longer allowed the transfer for security purposes and introduced the non-possessory pledge, the transitory law converted existing transfers for security purposes into this new type of pledge. Courts would never have been able (and competent) to make such a fundamental change in property law; it could therefore only be done by the legislature.42 The legislature should be aware of the leading role it plays in the structuring of property law and the adaptation of property law to new needs. So far, the Dutch legislature - as well as other legislatures in civil law countries - does not seem to realise this. This may change if there is economic pressure to accept new absolute rights. In the Netherlands Antilles, e.g., with its large offshore business it is now being considered to introduce the trust even though the new Dutch Civil Code - albeit it in the area of property law with important exceptions - now also applies on these islands.43 If the need for change becomes really pressing, courts may have no alternative than to fill the vacuum which the legislature leaves, but this should be done with the utmost care. What Merrill and Smith as well as Hansmann and Kraakman have made abundantly clear to civil lawyers is that the numerus clausus doctrine also serves an economic purpose and that this purpose should always be borne in mind. For that reason, I would argue that the strict civil law numerus clausus doctrine should not be applied as strictly as it is done in, e.g., the Netherlands. It should develop towards a numerus quasi-clausus: some flexibility is needed to regulate new forms of rights in property, such as the trust and time-share arrangements. If the legislature does not act, courts should, but with extreme care. What civil law could learn here from common law is flexibility, which enables property law to be more responsive to economic developments in the law. What the common law could learn from civil law is that closing legal categories creates more legal security and reduces information costs. The question remains what our starting point should be: common law pragmatism or civil law theory? In my view, neither should be the starting point. Historical-comparative analysis, taking into account socio-economic factors, should lead the way towards the most workable approach. 41 Hoge Raad 25 January 1929, Nederlandse Jurisprudentie 1929, 616 (Brewery case) and Hoge Raad 21 June 1929, Nederlandse Jurisprudentie 1929, 1096 (Car case). See Asser-Mijnssen-De Haan, Goederenrecht, nos. 468 ff. 42 Cf. Article 3:84 (3) Civil Code (the so-called ‘fiducia ban’) and Article 86 Overgangswet Nieuw Burgerlijk Wetboek (Transitory Law New Civil Code). 43 This will be a civil law trust, where the trustee will be the sole owner of the trust property and the beneficiary does not have any property entitlements. Cf. for the law of Scotland E. Reid, ‘Scotland (Report 1)’, in V.V. Palmer (ed.), Mixed Jurisdictions Worldwide: The Third Legal Family (Cambridge: Cambridge University Press, 2001), p. 234, and for the law of South Africa C.G. van der Merwe, J.E. du Plessis and M.J. de Waal, ‘The Republic of South Africa (Report 2)’, in Palmer, Mixed Jurisdictions, pp. 194 ff