Numerus Clausus Principle Research Articles

Cracking the Citadel Walls: A Functional Approach to Cosmopolitan Property Models Within and Beyond National Property Regimes

Due to its strong connection with sovereignty, territoriality and socio-economic policies, property law is traditionally considered part of the closed citadel of national law. This axiom is reinforced by private international law, where the mandatory principle of lex rei sitae acts as a barrier against the cross-fertilization of national property systems. No international treaty has ever touched the field directly; even in Europe, in spite of the interference of EU acts on national property laws, the Lisbon Treaty leaves property in the exclusive competence of Member States. It is not by accident that the majority of comparative law scholars approach the subject with a state-centric perspective, often emphasising the unbridgeable divide between different property traditions. Today the citadel is under multilateral attack. Bilateral investment treaties (BITs) and other international agreements break long-lasting dogmas and extend the scope of property to cover not only intangible assets, but also contractual rights and expectations. 'Cosmopolitan' human rights courts use a sui generis compara- tive approach to develop a similar autonomous conceptualisation of subject matter, structure, and content of property rights, while the potential horizontal effects of their decisions nullify the traditional constitutional/private law property divide. Internet and private ordering push for the cross-border recognition of virtual or quasi-proprietary entitlements, questioning the fundamental separation between property and contract and the sanctity of the numerus clausus principle. No matter how vigorously legal formants have tried to reinforce the citadel walls, these cos- mopolitan 'irritants' have already engendered several interpretative short-circuits, which a state-centric comparative analysis is unable to deconstruct and explain. To overcome the impasse, this paper advocates for the adoption of the functional method to verify the existence of a new global property model, sketch out its main characteristics, and help national legal systems embedding these new cosmopolitan elements, whether within or outside property law.

A Numerus Clausus Principle for Intellectual Property

Real property can only be held and conveyed in a small number of forms, such as fee simple, life estate, and lease. This principle is known as numerus clausus, meaning “the number is closed.” For centuries, the principle has been central to the common-law system of property rights. 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. In contrast, the numerus clausus principle is essentially nonexistent in intellectual property law. In the context of patents and copyrights, “the number is open.” There is nearly no limit to the ways in which intellectual objects can be licensed and sold. This Article will argue that the numerus clausus principle should extend to intellectual property. 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. The metaphysical nature of intellectual property prevents protected objects from being clearly identifiable, particularly in a patent context, where inventions can be independently created by multiple parties. As a result, investigating the sale and licensing history of a work or invention — and whether a work or invention is protected at all — is difficult, costly, and sometimes impossible. This difficulty is compounded by the absence of numerus clausus, which permits inscrutable licensing and sale agreements and allows single works to be carved into several parts and burdened by complicated usage rules. 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. This principle would benefit intellectual property owners, licensees, and the general public by lowering transaction costs and preventing accidental overuse and underuse of intellectual works.

Complexity in Property

This article illuminates the largely misunderstood relationship between and the regulation of property interests. Specifically, the article presents the complexity -- a novel explanatory account of the principle of numerus clausus. The principle of numerus clausus is an ancient common law rule which prohibits the customization of property interests. The thesis holds that the primary function of numerus clausus is to prevent the proliferation of highly idiosyncratic property interests. In so doing, numerus clausus provides a bulkhead against the overwhelming that would ensue if customized property interests were permitted. For the last fifteen years, numerus clausus has been the subject of a spirited colloquy in which property theorists of all methodological stripes have sought to unravel some of the mysteries that surround the principle. This article carefully engages several prominent explanatory accounts of numerus clausus, and demonstrates that while these competing accounts supply a number of important insights about the principle, the thesis does a better job of accounting for all of the salient features of the principle without sacrificing coherence or consilience. Finally, the thesis is especially instructive today, as the 2007 collapse of the housing market can largely be traced to a set of basic misapprehensions about the destructive power of in the context of highly alienable interests. The thesis demonstrates that standardization serves an essential epistemic function. Standardization makes it possible for us to better apprehend risk, and thereby avoid catastrophic miscalculations such as those that led to the housing collapse.

Commodifying Human Life: The Numerus Clausus Principle and Unconventional Property Rights

Throughout the common law world the notion that classes of property rights are closed in number is a prevailing concept across property regimes. This closed in number, or numerus clausus, principle has served property rights well. 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. However, as technology evolves, property is created in items that the legislature never contemplated. 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 individual’s 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. The argument is made that the numerus clausus principle is of marginal use considering such forms of unconventional property as human gametes. This is supported through a review of JCM, followed by an exploration of the optimal standardization. The second part of this work seeks to demonstrate the incompatibility of the numerus clausus principle, and the optimal standardization theory, with a critical analysis of JCM that underscores three central but overwhelming critical problems with such an application.

Yet Another Function for the Numerus Clausus Principle of Property Rights, and a Useful One at That

In recent years increased attention has been paid to the numerus clausus principle – the recognition of a limited, though not fully closed, set of property entitlements. An impressive number of rationales (eight by my tally) for that principle have already been offered. In this paper I claim that these arguments are incomplete. I argue that the presence of impediments to the termination of property rights suggests the need for caution in their initial recognition, because doctrinal mistakes cannot easily be corrected. On that view, numerus clausus serves as an instantiation of what is sometimes called the precautionary principle: an ounce of prevention is worth a pound of cure.

Introducing the Numerus Clausus of Property Rights

This is the presentation held prior to the defense of the PhD Thesis 'The Principle of Numerus Clausus in European Property Law' defended in Maastricht, the Netherlands, on 17 October 2008. It is customary in the Netherlands to hold a 15 minute presentation to the audience of colleagues, family members and friends, explaining the topic and content of the PhD thesis. This short presentation explains the principle of numerus clausus in property law in terms of menu choices in restaurants.

PROPERTY AND COLLECTIVE UNDERTAKING: THE PRINCIPLE OF NUMERUS CLAUSUS

In this article, I seek to reclaim for property theory the legitimation concern that is the kernel of the principle of numerus clausus (which is a restriction that means that it cannot be up to private persons to create new forms of property right, but only to trade rights that take existing forms). I advance two general claims. First, functional accounts of this principle cannot but fail adequately to explain it. Second, the numerus clausus can be cast into sharp relief by elaborating the legitimation question that captures its moral centre – that is, a concern about how political authority is possible in the context of legislating new forms of property right. I insist, in this regard, that the conception of political legitimation that characterizes the creation of novel forms of property right is that of democratic self-governance.

Property and Collective Undertaking: The Principle of Numerus Clausus

In this article, I seek to reclaim for property theory the legitimation concern that is the kernel of the principle of numerus clausus (which is a restriction that means that it cannot be up to private persons to create new forms of property right, but only to trade rights that take existing forms). I advance two general claims. First, functional accounts of this principle cannot but fail adequately to explain it. Second, the numerus clausus can be cast into sharp relief by elaborating the legitimation question that captures its moral centre - that is, a concern about how political authority is possible in the context of legislating new forms of property right. I insist, in this regard, that the conception of political legitimation that characterizes the creation of novel forms of property right is that of democratic self-governance.

The Standards of Property

Much scholarly attention has been paid recently to the optimal design of legal norms as constituting either clear-cut “rules” or open-ended “standards.” The reemergence of formalist thought across schools and ideologies calling to reinforce a more rule-based regime in various legal fields has been increasingly challenging the substantive, contextual jurisprudence that had largely dominated the twentieth century. The study of legal standards versus rules in property law remains, however, quite limited, focusing mainly on specific aspects such as the remedy-based property rule/liability rule discourse, the debate whether the right to exclude represents the inherent “core” of property rights, and the renewed interest in the structural numerus clausus principle. This Article offers an innovative, comprehensive analysis of the ways in which legal standards operate in property law. It identifies the distinctive manner in which the chief justifications for standards, i.e. incompleteness of rights and enhancement of substantive value-based design and interpretation of norms, play out in property law. Cutting across conventional public law / private law distinctions, by referring to various standards such as “trade usage,” “custom,” “reasonableness,” “abuse of rights,” or “public use,” the Article shows that legal standards hinge prominently on the institutional mechanisms by which such norms are crafted and enforced, and identifies the conditions under which property standards may outperform hard-edged rules. Considering the unique trait of property rights as implicating numerous and often indefinite interest holders, and hence the need for broad-based coordination in designing the content of property legal standards over time, the Article looks at the ways in which such standards can be filled with content by either bottom-up norms such as group-based customs, values, and understandings, or rather by top-down bodies such as courts. In essence, in order for property legal standards to work effectively, bottom-up and top-down decisionmaking institutions, working exclusively or conjointly, must systemically guide actors through the often inevitable incompleteness of rights and the dynamic nature of value-based norm-setting, without bringing property to the brink of excessive instability and insecurity that have led to the backlash of new formalism.

Towards a system of estates in virtual property

Virtual worlds such as Second Life have received a lot of press in the USA recently. As individuals and businesses participate in these virtual worlds, questions arise regarding the application of existing laws to their virtual world transactions. Many questions have arisen regarding the property rights of participants in virtual worlds, and a Second Life member recently sued Linden Research, the company that developed Second Life, alleging that Second Life converted his virtual property. The questions regarding the legal nature of virtual world assets tend to mirror the questions regarding intangible rights generally, as courts have tended to struggle over whether these rights are property rights or contract rights. In this paper, I propose that the principle of numerus clausus be applied to virtual property, so that courts faced with disputes over such assets will have mandatory property forms to which to resort. Such an approach would limit the ability of vendors of such rights to customise them through their contracts, which are commonly embodied in electronically presented standard forms.

Of Property and Federalism

This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and property-related topics as same-sex marriages, community property, adverse possession and easements. The Essay begins by demonstrating the salutary effects of federalism on the evolution of property law. Specifically, it shows that competition among states has created a dynamic property system in which new property institutions replace obsolete ones.The Essay then contemplates the possibility of increasing innovation and individual choice in property law by inducing state competition over property regimes. Drawing on the scholarly literature examining state competition for corporate law and competition over the provision of local public goods, the Essay constructs an open property system that creates an adequate incentive for the states to offer new property regimes and allows individuals to adopt them without relocating to the offering state. This Essay also has important implications for the burgeoning literature on the numerus clausus principle, under which the list of legally permissible property regimes is closed. The Essay argues that in a federalist system, it is socially desirable to expand the list of property forms to include certain out-of-state forms.

Optimal Standardization in the Law of Property: The Numerus Clausus Principle

In all post-feudal legal systems, the basic ways of owning property are limited in number and are standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. In the common law, this principle has no name and is invoked only semi-consciously; it is known in the civil-law tradition as the numerus clausus. 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. 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 Article argues that the principle serves throughout the law of property to reduce third-party information costs. Because of their in rem nature, property rights give rise to third-party information costs in a way that contract rights do not. Individuals trying to avoid violating property rights or investigating whether to acquire them need to gather information. Those creating property rights will in some situations have too little incentive to conform to the most popular forms, requiring a degree of mandatory standardization. As it operates in practice, the numerus clausus strikes a rough balance between the costs of frustrating parties' objectives on the one hand and third-party information costs on the other. The 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 the sufficiency of notice, network effects, private standards, anti-fragmentation concerns, and the increasing importance of contract-based rights. Finally, the Article shows that, because it tends to preclude judicial innovation in the basic forms of property rights, the numerus clausus acts as an institutional-choice mechanism that channels innovation in the menu of property rights to legislatures. 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 Uniformity of Ownership, Numerus Clausus and the Reception of the Trust Into South African Law

It is generally accepted that the Anglo-American trust with its dichotomy of legal and equitable ownership cannot as such be received into a civil law legal system. Although South African private law is mainly civilian in nature, the trust was received into South African law and it has developed into a widely used and flexible institution. In this contribution the author explains how this reception and development took place in spite of the perceived obstacles. Particular attention is focused on the issues of uniformity of ownership and the numerus clausus principle. A brief exposition of the nature and uses of the modern South African trust is also provided.

FRG:GOVERNMENT PROPOSAL TO LIMIT NUMERUS CLAUSUS

The number of study places in the Federal Republic of Germany's higher education institutions has increased substantially during the last few years; 450,000 in 1970 and over 700,000 in 1975. The total investments required for this increase amounted to 15.9 milliard DM. The trend to develop the “capacity” of the higher education system in FRG will continue and over the next few years an additional 150,000 study places will be created. At the same time there is a tendency for wider admission to higher education, by reducing the numerus clausus principle. We give below the 7‐point programme presented by Mr. Helmut Rohde, Federal Minister of Education.