The owner of a piece of land can in principle create as many rights of servitude on this land
as he wants. It is also possible to grant more than one hypothec to different creditors on one
immovable object. Sometimes, however, the nature of a kind of property right brings
limitations with it. It seems, for instance, senseless to have more than one usufruct on a car.
The principle ofnumerus clausustherefore means that parties themselves are
restricted in their freedom to create new types of property rights.
The task to designate which property rights are possible is in Germany assigned to the
legislature. In English law, this authority resides with the Supreme Court (formerly: House
of Lords). In French law there is a mixed situation where the legislature and the Courts
share the authority to recognize new types of property rights.5.6.2 The Principle of Specificity
A second principle of property law is the principle of specificity. A property right is
a right on a good or on land, and it should be clear in respect of precisely which
good or land the property right is created. It is, for instance, not possible that a
jeweler can own “four golden rings” without it being clear precisely which rings are
owned by the jeweler.
The importance of the principle of specificity becomes clear if one considers what would
happen if this principle were not respected. Suppose that the jeweler needs money and
wants to create a right of pledge on his golden rings. In order to do so, he must give the rings
to the holder of the right of pledge. If it is unclear which rings the jeweler owns, it is not
possible to comply with this condition for creating a right of pledge. If the jeweler hands in
four random golden rings, the creditor might end up with rings that belong to a third party,
who has nothing to do with either the jeweler or the holder of the right of pledge.
A consequence of the principle of specificity is that so-called fungible objects,
which occur in masses, such as grain, sand, and also money, can generally not be
the object of individual property rights if they are mixed with other objects of the
same kind.
If Jane brings money to the bank to put it on her savings account, she loses ownership of this
money, because in the bank it is mixed with money from other persons and can no longer be
identified as the money of Jane. Although Jane has an individual bank account, this is
merely an administrative status representing Jane’s rights on the money in the bank. Jane
only has a claim against the bank to return to her the same amount of money (plus possible
interest) that she deposited in the bank.
A practical consequence is that if the bank becomes insolvent, Jane has to compete with
all other creditors for a share in the remaining money. She cannot take out “her” money,
because there is no money that belongs specifically to her.Droit de Suite The principle of specificity is also important for thedroit de suite,
the phenomenon that property rights follow the objects on which they rest and can
be invoked against every possible holder of the object (see Sect.5.1.1). If it is
unclear on which object the property right rests, thedroit de suitewould be
impossible.
5 Property Law 87