Numerus Clausus of Real Rights: Current Value and Practical Issues

This paper deals with the numerus clausus of the limited property rights of enjoyment of someone else’s property. It examines the historical and ideological development of the numerus clausus principle by identifying the legal and regulatory framework. The paper explores how Courts apply civil law rules and how the concept of numerus clausus differs from that of typicality. Then the survey explores how a-typicality can find room in this field. How the protection of third parties and, at the same time, the evolution of the system can be conciliated? Which is the role of judges and notaries towards the new real rights introduced by the legislator, with doubt law qualification in term of real or personal (i.e. obligational) nature? What about those rights, not regulated by law and introduced by commercial practice? This paper also considers the semi-clausus principle and how it has been elaborated by current doctrine. Numerus clausus is of remarkable relevance in the Italian context because in December 2019 the Second Section of the Court of Cassation remitted to the United Sections the issue of the qualification of the right of exclusive use in condominium. The right of “exclusive use” on res of common property is often negotiated, but its legal qualification is not clear. Awaiting the Supreme Court’s response provides the opportunity to revisit the well-known dogma of private law and reflect on some possible solutions.