Standardisation of Property Rights in European Property Law

Abstract

European Property Law is in development. In the last decades it has been a study of theory rather than of practice as it is usually considered too diverse and too much differing between countries to ever achieve meaningful results when trying to seek harmonisation. Recently, however, property law is moving to the center of the debate on the making of European private law. This does not take away the need to look at fundamental questions of property law. In face, the piecemeal approach of harmonisation taken in European Union private law especially creates problems for property law with its doctrinally coherent national systems.

One of the most essential issues in property law is the numerous clauses of property rights. The closed list of property rights from which parties much choose when they seek to create a new property right. The principle has recently received a lot of attention and this has greatly enriched the property law debate. Numerous clauses have been analyzed from a legal comparative, but also from an economic point of view. Especially in the economic analysis of numerous clauses standardisation plays a crucial role. By standardisation Thomas Merill and especially Henry Smith argue information costs externalities can be minimized.

This paper discusses the descriptive value of standardisation theory in property law for the European legal arena, but then moves to a normative level and investigates whether standardisation theory can also be used as a basis for the future development of European property law. Especially by joining insights from standardisation theory with fundamental aspects of publicity, i.e. the differentiation of classes of third parties on the market, this paper offers a way forward for the development of property law in Europe and beyond.

Keywords: Numerus Clausus, Property Law, Property Rights, European Property Law, European Union Property Law, Standardisation Theory