Faculty of law
Contractualisation of Ownership
About legal ownership and economic ownership
By Willem Loof
Faculty of law
Economic or beneficial ownership
The “classical” 19th century civil law approach towards
ownership was static and formalistic. Developments in
French and German law show, however, that this
approach is changing. Ownership is becoming a flexible
tool. By limiting owner’s rights through contract law, the
contractual arrangements can, in fact, be so strong that
the formal non-owner may be characterized as
“economic” owner. Such economic ownership puts
pressure on the classical civil law approach, thus bringing
the civil law closer to the flexible common law perception
of ownership. Contractualisation of civil law ownership is
thus a necessary step towards developing a European
property law.
Faculty of law
Contractualisation:
• Content and purpose of the right of ownership shaped by
party agreements, thereby creating economic ownership
• Trust, Fiducie, Treuhand
Faculty of law
ProCall (HR 13 June 2003, NJ 2004)
• ProCall collecting payments on behalf of Beatrixziekenhuis
• Payments collected on bankaccount of ProCall but
“concerning Beatrix-hospital”
• Payments held to fall into the bankrupt estate of ProCall
• Complete beneficial interest with economic owner Beatrixhospital
Faculty of law
Kas-associatie/Drying (HR 23
September 1994, NJ 1996, 461)
• Intermediated securities
• Bankrupt intermediator buying securities for and on behalf of
Drying and registering these securities on an account provided
by Kas-associatie
• Complete beneficial interest with economic owner
Faculty of law
Drying
Effectenkantoor (intermediary,
not registered)
Kasassociatie (sub-intermediary,
registered)
Central depository
Faculty of law
Roman law: a more equitable
example?
•
•
•
•
Ius civile, ius gentium and ius honorarium
Bonitary ownership
Fideicommissum
Placement of ownership in Roman law, the classification of
Gaius
Faculty of law
What to do?
•
•
•
•
Common law (equity)
Forms of economic ownership in modern law
Modern developments influencing property law
Beneficial ownership in tax law?
Faculty of law
Revisiting ProCall and Drying
• A Roman solution
• A common law solution
Faculty of law
Economic ownership
• A new type of relation to property?