some civil law countries. I will defend that, without endangering the enormous advantages that the French Revolution brought to property law, some openness will prove beneficial instead of a numerus clausus a numerus quasi- clausus should be adopted III The role of the numerus clausus doctrine Before i discuss the role of the numerus clausus doctrine in more detail, it may be useful to reflect briefly upon the distinction between the object of a property right and the legal relation constituting the rights/duties between subjects in regard to such an object. These two aspects of property entitlements should be distinguished clearly. In what follows, I will focus on the right of ownership, not on other absolute rights. It should be borne in mind, however that what applies to the right of ownership mutatis mutandis also applies to limited real rights The object of a right of ownership(very often simply called ownership' ) can be a is,nevertheless, part of a person's patrimony and can, as such, be the object of a right or rao corporeal thing(movable or immovable) as well as a right. 2 To give an example of the latte a contractual right, although personal in nature and which only binds the parties to a conti ownership The effect is that it can be transferred to someone else. Whether you limit the right of ownership' to rights regarding corporeal things(as is done in the new Dutch Civil Code)or not is a matter of legal terminology, closely related to the legal terminology and the structure of the legal system in which this particular term is used. a good example of a very broad definition of the term can be found in article l of Protocol l of the european Convention on Human rights Every naturalor legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of intemationallaw. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 3 Legal theorists have examined at great length what the object of ownership(and consequently, the object of rights derived from ownership, such as security interests)can be.4 This has led, e.g., Charles Reich to express the view that new property should be his right of ownership. Cf Articles 3: 86(movables)and 3: 88(registered property, such as land)new Dutch Civil Code A notorious problem is whether goodwill can be an object of property law. This question was only recently decided by the Hoge Raad(Netherlands Supreme Court)in its decision of31 May 2002, Rechtspraak vandeWeek2002,89,alsotobefoundonthewebsiteoftheDutchJudiciaryshttp://www.rechtspraak.n> Incorporated goodwill(the surplus value of all the property in an enterprise)can be'propertyas such-and thus an object of property law -in the sense of Article 3: 1 Dutch Civil Code. Non-incorporated goodwill is not property. (Article 3: 1 reads as follows: "Property is comprised of all things and of all patrimonial rights. See E.A. Halkema, The Concept of Property-in Particular in the European Convention on Human Rights, in J.P. Loof, H Ploeger and A. van der Steur(eds ) The Right to Property: The Influence of Article I Protocol No. I ECHR on Several Fields of Domestic Law(Maastricht: Shaker Publishing, 2000), pp 17 ff. For a summary of case law, see B Mensah, European Human Rights Case Summaries 1960-2000(London/Sydney Cavendish Publishing, 2002), p 1176 See, among many others, M.J. Horwitz, The Transformation of American La 1780-1860(Cambridg Mass /London: Harvard University Press, 1977), pp 31 ff. idem, The Transformation of American Law 1870 1960: The Crisis of Legal Orthodoxy(New York/Oxford: Oxford University Press, 1992),pp 145 ff, KJ Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept ofsome civil law countries. I will defend that, without endangering the enormous advantages that the French Revolution brought to property law, some openness will prove beneficial: instead of a numerus clausus a numerus quasi-clausus should be adopted. III The role of the numerus clausus doctrine Before I discuss the role of the numerus clausus doctrine in more detail, it may be useful to reflect briefly upon the distinction between the object of a property right and the legal relation constituting the rights/duties between subjects in regard to such an object. These two aspects of property entitlements should be distinguished clearly. In what follows, I will focus on the right of ownership, not on other absolute rights. It should be borne in mind, however, that what applies to the right of ownership mutatis mutandis also applies to limited real rights. The object of a right of ownership (very often simply called ‘ownership’) can be a corporeal thing (movable or immovable) as well as a right.12 To give an example of the latter: a contractual right, although personal in nature and which only binds the parties to a contract, is, nevertheless, part of a person’s patrimony and can, as such, be the object of a right of ownership. The effect is that it can be transferred to someone else. Whether you limit the ‘right of ownership’ to rights regarding corporeal things (as is done in the new Dutch Civil Code) or not is a matter of legal terminology, closely related to the legal terminology and the structure of the legal system in which this particular term is used. A good example of a very broad definition of the term can be found in Article 1 of Protocol 1 of the European Convention on Human Rights: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.13 Legal theorists have examined at great length what the object of ownership (and, consequently, the object of rights derived from ownership, such as security interests) can be.14 This has led, e.g., Charles Reich to express the view that ‘new property’ should be his right of ownership. Cf. Articles 3:86 (movables) and 3:88 (registered property, such as land) new Dutch Civil Code. 12 A notorious problem is whether goodwill can be an object of property law. This question was only recently decided by the Hoge Raad (Netherlands Supreme Court) in its decision of 31 May 2002, Rechtspraak van de Week 2002, 89, also to be found on the web site of the Dutch Judiciary: <http://www.rechtspraak.nl>. Incorporated goodwill (the surplus value of all the property in an enterprise) can be ‘property’ as such - and thus an object of property law - in the sense of Article 3:1 Dutch Civil Code. Non-incorporated goodwill is not property. (Article 3:1 reads as follows: ‘Property is comprised of all things and of all patrimonial rights.’) 13 See E.A. Halkema, ‘The Concept of Property - in Particular in the European Convention on Human Rights’, in J.P. Loof, H. Ploeger and A. van der Steur (eds.), The Right to Property: The Influence of Article 1 Protocol No. 1 ECHR on Several Fields of Domestic Law (Maastricht: Shaker Publishing, 2000), pp. 17 ff. For a summary of case law, see B. Mensah, European Human Rights Case Summaries 1960-2000 (London/Sydney: Cavendish Publishing, 2002), p. 1176. 14 See, among many others, M.J. Horwitz, The Transformation of American Law 1780-1860 (Cambridge, Mass./London: Harvard University Press, 1977), pp. 31 ff.; idem, The Transformation of American Law 1870- 1960: The Crisis of Legal Orthodoxy (New York/Oxford: Oxford University Press, 1992), pp. 145 ff.; K.J. Vandevelde, ‘The New Property of the Nineteenth Century: The Development of the Modern Concept of