Summary

235. Under Dutch law a distinction is made between proprietary rights (rights in rem) and personal rights (rights in personam). Proprietary rights are rights with absolute effect (i.e. enforceable against any third party). They confer the right to a thing. Personal rights are only enforceable against particular persons. They confer a right that can be exercised against a person. This study focuses on the principle that proprietary rights may rest on one object alone and cannot rest on more than one single object at the same time. I have named this basic principle the principle of unicity (uniciteitsbeginsel).

Dutch and German law are founded on this principle of unicity (known in German as Spezialitätsgrundsatz). This is different under French law. They recognise the so-called universality of goods (universitas, algemeenheid van goederen) as an object of proprietary rights. The universality of goods is a totality of assets: a quantity of goods which is regarded as a unity in the course of trade – a unity which remains as such regardless of any changes to its constituent parts. The estate (nalatenschap) and the enterprise (onderneming) are examples of a universality of goods. Under Dutch law the universality of goods is as such not recognised as an object of proprietary rights. A right of pledge on an enterprise, for example, consists of just as many rights of pledge as there are objects within the enterprise. It has been suggested in Dutch legal literature that there may be some advantage in recognising the enterprise as an object of proprietary rights, as in French law. Is that actually the case? Would it be appropriate to abandon the principle of unicity?

In chapter1 I have explained the scope of the problem and the structure of the study. In chapter 2 I have examined the elements objects (of proprietary rights) and proprietary rights within the definition of the principle of unicity. I have also substantiated that Dutch and German property law adhere to the principle of unicity, whilst French law does not.

236. The chapter 3 focuses on the universality of goods as a potential object of proprietary rights. After reflecting on the concept of universality of goods and its origin I discuss the usufruct of a universality of goods. Dutch and German law contain special provisions to effectuate this. Subsequent analysis shows that there is not one single right to the universality as such, but just as many rights of usufruct as there are goods in the universality. The relevant legal provisions only address the payment of debts from the universality but do not affect the form of the proprietary right of usufruct.

By contrast, the universality of goods under French law can be the object of usufruct in its entirety. The legal effect connected herewith is that the usufructuary has competence to dispose of the goods in the universality in so far as required for a proper management of the universality. Where it does not concern the usufruct of a universality but of individual goods, the usufructuary will not have such power of disposition. Dutch law provides for a flexible regulation of the right of usufruct and the Dutch Civil Code contains provisions which allow the usufructuary to dispose of the goods subject to usufruct. In this respect, Dutch law has no need for a construction such as provided for in French law.

Finally, chapter 3 looks briefly at the revendication (hereditatis petitio) and possession of the estate as possible exceptions to the principle of unicity whereby it is concluded that such an exception does not occur.

237. Chapter 4 examines a special case of the universality of goods, namely the enterprise. French law provides for a special regulation regarding the pledging and transfer of an enterprise (fonds de commerce). I extensively discuss this regulation of the fonds de commerce and compare it with Dutch and German law. The key observation is that the practical result of the enterprise as an object of proprietary rights is not much different from the result under Dutch and German law, where the universality is not an object of proprietary rights. This is due to the fact that the fonds de commerce has been defined fairly narrow and does not include receivables and immovable property. Moreover, there are requirements for the delivery and encumbrance that still need to be fulfilled individually for a number of elements that belong to the fonds de commerce. In Dutch and German law the specificity requirement (bepaaldheidsvereiste) is generously interpreted and there are several (undisclosed) delivery and encumbrance variants forreceivables and movable assets. Dutch and German law therefore provide for possibilities comparable to those under French law.

Recognising the enterprise as an object in the way this is done in French law therefore does not have any advantages from a Dutch law perspective. Perhaps this might be different if we could truly consider the enterprise as one single object which would allow for transferring it as a whole in one single transaction, hence without making a distinction by type of asset. The question is whether it would be appropriate to abandon the individual delivery of each property. Delivery formalities do not exist without reason. A certain form of delivery or publication thereof is required in order to protect the parties involved and also in view of the position of third parties and/or legal certainty in general.

One might still consider that recognising the enterprise as an object of proprietary rights, as in French law, would lead to a scenario where this object also includes goodwill. The issue of goodwill being a difficult concept from a property law perspective would, however, not be solved by simply assuming the existence of one single right on the enterprise as a whole. The fact that goodwill is difficult to implement in property law is mainly due to the type of claims which arise for the holder of the ‘right to goodwill’; these are mostly of a contractual or personal nature.

238. Chapter 5 pays attention to the right of mortgage (hypotheek). In this context, I have described the principle of speciality (specialiteitsbeginsel) and the principle of indivisibility (ondeelbaarheid). These principles should be distinguished from the principle of unicity.

The principle of speciality entails that the object of the right of mortgage shall be individually stated in the deed when it is established. This requirement relates to the desire to give publicity to mortgages. The manner in which such publicity can best be provided is by making each object available for consultation through the public registers. To achieve this, it will be necessary to include a special description of the object when the mortgage is established. Both French and Dutch law as well as German law have evolved but initially implemented general mortgages. For general mortgages it was sufficient to have a general description of the property to be encumbered. General mortgages were abolished at a later stage with the introduction of the principle of speciality.

The principle of indivisibility includes various rules for recourse liability (Haftung) of the object of mortgage. In German law these rules are defined under the umbrella of the Gesamthypothek. Both Dutch and German law provide for just as many mortgage rights as there are objects of mortgage and consequently the principle of unicity is also complied with for mortgages.

239. Chapter 6 discusses the division (splitsing) of objects of proprietary rights. Consider the situation where part of a piece of land is transferred to another party, the actual division of a movable object into two parts, or the partial assignment of receivables. I have contended that when dividing the object of a proprietary right, the right itself will also always split. In the second part of the chapter I explain the vertical split-up of the long leasehold (emphyteusis, erfpacht). There are some particularities here, for which I refer to the text of this chapter. In this connection the question arises in which specific cases there is one immovable property whereby German law serves as a source of inspiration.

240. Chapter 7 deals with cases that are related to goods (zaken). We can identify a form of ‘disguised universality’ for composite goods; potentially independent goods are recognised as one good by public opinion (verkeersopvatting). Strictly speaking, there is no exception to the principle of unicity in this respect, because there is one single object encumbered with one single right. We see something comparable in German law, where certain rights can be a constituent part of immovable property.

Dutch law as well as German and French law provide for a category of independent goods, defined as ancillary goods (hulpzaken) in the old Dutch Civil Code, which returns in some parts of the new Dutch Civil Code as accessories (toebehoren). In all three jurisdictions there are exceptions to the principle of unicity. These exceptions appear to fit in well with the property law system.

241. Chapter 8 discusses several cases involving co-ownership (gemeenschap). A number of exceptions to the principle of unicity can be found in various parts of Dutch and German law. In those instances a ‘transformation’ of individual goods into a form of co-entitlement to collective goods occurs to some extent. The law has introduced a new type of object, causing old objects to lose relevance. The legal status relating to the constructions of community is sufficiently clear to work with on a practical and theoretical level.

242. In chapter 9 I conclude that the principle of unicity is an organising principle. It is a choice for organising law in a certain way, which could have been different – as the comparison with French law has shown. In view of the current system of property law, it would not be appropriate to implement the universality of goods as an object of proprietary rights in Dutch law. This legal concept has in itself no advantages; nothing is made possible what is not possible now, or vice versa. In Dutch property law the transferability of individual goods is paramount, the powers arising from proprietary rights usually pertain to individual objects, and furthermore emphasis is placed on the various delivery and encumbrance requirements. A system where a proprietary right is in principle associated with one single object is most consistent with these principles.