A critical examination of the numerus clausus doctrine in relation to property rights

Abstract

This thesis seeks to analyse the Numerus Clausus Doctrine, starting out by providing a definition to this Doctrine, and noting arguments which have been made over the years in favour, as well as against, the upholding of such a Doctrine by legal systems. One of the major criticisms which is raised against the Numerus Clausus Doctrine is that it poses a limitation on the principle of Freedom of Contract. In this regard, this study shall proceed to consider the Freedom of Contract principle in light of the Numerus Clausus principle, seeking to determine whether such freedoms given to the parties when contracting applies solely when contracting into personal rights, rather than when contracting into real rights too. This study focuses predominantly on the English legal system, as well as the Maltese legal system, and this in order to examine the applicability or otherwise of the Numerus Clausus Doctrine under different legal systems. Chapter 3 provides an overview of the English Common law system, proceeding to consider the real rights which are available under this system, and subsequently, whether the creation of other real rights is possible - either under Common law, or by way of Equity. Once the position under English law is considered, this study proceeds to analyse whether Maltese law upholds the Numerus Clausus Doctrine, or whether it abides by a Numerus Apertus of real rights. In order to draw a conclusion, this study takes into consideration innominate contracts, and exploring the possibility of these serving as a vehicle for the creation of new real rights.