Atypical Property Rights Between the Myth and the Legend

An Analysis of Systems Numerous Apertus and Numerous Clausus

Abstract

The party autonomy is the cornerstone on Civil Law subject. Doctrinally, it has been established that this autonomy gives individuals sovereignty to govern themselves within the sphere of their private relations. This autonomy has very few limits- namely law, morality and public order. Thus, the subjective individual rights have been imbued with a quasi-private omnipotence. In this article we seek to decipher if this private autonomy - which allows the configuration of as many atypical contracts that cross the human imagination - extends to property rights, so that novel property rights not covered by the law may be established. For such an undertaking, it is necessary to construct a study about the tipicity (numerus clausus) or list without limitation (numerus apertus) on Civil Code, with the motive to firstly verify the possibility of an apertus system on Ecuador. Additionally, there are exposed the arguments and counterarguments of systems of numerous apertus and numerous clauses, with the objective of analyze the convenience and applicability of both systems.