The numerus clausus Principle and the Type Restriction-Influence and Expression of These Principles. Demonstrated in the Area of Common Ownership and Servitudes

Author:Kaupo Paal
Position:Magister iuris Judge, Tallinn Circuit Court
Pages:32-39
 
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32 JURIDICA INTERNATIONAL XIX/2012
Kaupo Paal
Magister iuris
Judge, Tallinn Circuit Court
The numerus clausus Principle
and the Type Restriction—
In uence and Expression of These Principles
Demonstrated in the Area of Common Ownership
and Servitudes
The numerus clausus principle and the type restriction are basic principles of property law. These prin-
ciples pervasively in uence the whole of property law. Different from the abstraction principle and from
the distinction principle*1, both the numerus clausus principle and the type restriction have not been set
forth expressis verbis by written provisions of the law. Nevertheless, these principles form a basis for the
whole manner of regulation applied in property law. The freedom of contract (as freedom of agreeing on the
content of property law rights) is expressly foreseen in speci c sections of Estonia’s Law of Property Act*2
(LPA) and in other laws that set forth provisions of property law and real rights.
There is a principle in accordance with which the legal order includes only such real rights as are de ned
by law, and contracting parties themselves can neither create additional, new real rights nor remake or
impermissibly further develop the content of existing real rights. This principle seems simple only at rst
glance. It is usual in conclusion of transactions involving property rights that time and again the following
questions, among others, arise: what exactly may belong to the content of a speci c real right, how far can
the contracting parties go in forming the content of a real right, what is the content of agreements that can
be carried forth into the Land Register under a notation and turn them thus into agreements under law of
property, etc.? In transactions with real estate, presumably most of these questions arise in conclusion of
a notarised transaction but also in carrying of the transaction forward into the Land Register. Also, court
actions involving these questions are obviously unavoidable in cases wherein a party presents a claim for
altering or deleting an entry in the Land Register because due to the numerus clausus principle such real
right under the disputed entry could not become into being, or certain real right has been further developed
exceeding the type restriction by it. In the rst place, the numerus clausus principle and the type restric-
tion are important for the reason that in cases of their violation no corresponding real right can arise or
no respective legal relationship can acquire the desired character under property law. The result will be an
incorrect entry or, in the preferable case, refusal of making an entry. The subject is especially important for
reason of arguments that continuously arise as to the permissibility of forming real rights’ content. In the
1 See the principles expressed in Estonian law in force today, as in §6 (4) of the General Part of the Civil Code Act. Tsiviil-
seadustiku üldosa seadus. – RT I 2002, 35, 216; RT I, 6.12.2010, 1 (in Estonian).
2 Asjaõigusseadus. – RT I 1993, 39, 590; RT I, 23.4.2012, 1 (in Estonian).

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