Faculty of law

Contractualisation of OwnershipAbout 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 Beatrix-hospital

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?