A NUMERUS QUASI-CLAUSUS OF PROPERTY RIGHTS AS A CONSTITUTIVE ELEMENT OF A FUTURE EUROPEAN PROPERTY LAW I Sjef van Erp Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating th source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract In this article the so-called numerus clausus doctrine of absolute rights is analysed According to the numerus clausus doctrine, the number and content of real rights(rights against the world, d istinguished from merely personal rights) is limited. As such, the numerus clausus doctrine is a characteristic of civil law systems, although it is not unknown in literature on the common law. The question is discussed whether harmonisation of property law in Europe is possible without finding a middle ground between the civil law, which considers the numerus clausus doctrine to be a fundamental part of its property law, and common law, where this doctrine as such is not applied a middle ground could be found if on the one hand, civil law systems would be willing to become more flexible by accepting a numerus quasi-clausus doctrine and, on the other hand, common law systems would be more willing to limit the creation of rights against the world by means of a stand ardisation of these rights Contents I Introductory remarks II The feudal system, the French Revolution and numerus clausus III The role of the numerus clausus doctrine IV Towards a numerus quasi-clausus or standardisation of property rights? I Introductory remarks In his Hamlyn lecture Pragmatism and Theory in English Law, 2 Patrick Atiyah observes four basic distinctions or contrasts between civil law and common law: the logic and experience distinction, the rights and remedies contrast, the principle and precedent contrast I This is a slightly adapted version of an essay published in a Festschrift for Ewoud Hondius on the occasion of his 60th birthday, offered to him by( former)members of the Board of the Netherlands Comparative Law Association: K. Boele-WoelkL, C.H. Brants and G.J. w. Steenhoff(eds ) Het plezier van de rechtsvergelijking Opstellen overunificatie en harmonisatie van het recht in Europa aangeboden aan prof.mr. E.H. Hondius(Deventer: Kluwer, 2003) P Atiyah, Pragmatism and Theory in English Law (london: Stevens Sons, 1987), pp 6 ff.A NUMERUS QUASI-CLAUSUS OF PROPERTY RIGHTS AS A CONSTITUTIVE ELEMENT OF A FUTURE EUROPEAN PROPERTY LAW?1 Sjef van Erp Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract In this article, the so-called numerus clausus doctrine of absolute rights is analysed. According to the numerus clausus doctrine, the number and content of real rights (rights against the world, distinguished from merely personal rights) is limited. As such, the numerus clausus doctrine is a characteristic of civil law systems, although it is not unknown in literature on the common law. The question is discussed whether harmonisation of property law in Europe is possible without finding a middle ground between the civil law, which considers the numerus clausus doctrine to be a fundamental part of its property law, and common law, where this doctrine as such is not applied. A middle ground could be found if, on the one hand, civil law systems would be willing to become more flexible by accepting a numerus quasi-clausus doctrine and, on the other hand, common law systems would be more willing to limit the creation of rights against the world by means of a standardisation of these rights. Contents I Introductory remarks II The feudal system, the French Revolution and numerus clausus III The role of the numerus clausus doctrine IV Towards a numerus quasi-clausus or standardisation of property rights? I Introductory remarks In his Hamlyn lecture ‘Pragmatism and Theory in English Law’,2 Patrick Atiyah observes four basic distinctions or contrasts between civil law and common law: the logic and experience distinction, the rights and remedies contrast, the principle and precedent contrast 1 This is a slightly adapted version of an essay published in a Festschrift for Ewoud Hondius on the occasion of his 60th birthday, offered to him by (former) members of the Board of the Netherlands Comparative Law Association: K. Boele-Woelki, C.H. Brants and G.J.W. Steenhoff (eds.), Het plezier van de rechtsvergelijking. Opstellen over unificatie en harmonisatie van het recht in Europa aangeboden aan prof. mr. E.H. Hondius(Deventer: Kluwer, 2003). 2 P. Atiyah, Pragmatism and Theory in English Law (London: Stevens & Sons, 1987), pp. 6 ff