De invloed van de wil van partijen op de kwalificatie van goederen.
The influence of contract parties' intention on the qualification of goods
Apers, Ann; R0292314
To make the complex reality of the world that surrounds us more manageable, the law divides it into abstract categories, which are subjected to different legal regimes. The division of one aspect of reality, namely property, into legal categories takes place based on different criteria. These criteria can be objective, when they are based on inherent characteristics, or subjective, e.g. when they are based on the destination of the property or the value it represents vis-à-vis the contract parties. In case of an objective criterion, contract parties in theory do not have an influence on the legal classification. Recently, however, case law and legal doctrine have been interpreting objective classifications in an increasingly subjective manner. This thesis examines the function and effects of subjective elements used in legal classifications that are based on the nature of property. Subjectivity (or party autonomy) was found to have a double dimension. It can influence the default classification at the default level, in which case the nature of a property is established using subjective elements (in addition to objective ones). Subjectivity can also impact the classification at the deviation level: at this level a thing is given a classification that deviates from the default classification based on subjective elements. The distinction between the two levels impacts the consequences of subjectivity. A subjective classification at the default level works erga omnes and in every aspect of the legal regime. A subjective classification at the deviation level is limited: certain third parties can rely on the default classification and certain aspects of the regime are affected by the default classification, as well. The limitations on the effect that a subjective classification can have, proved to be inconsistent between the different applications. Furthermore, the use of subjective elements was criticized at both levels. The inconsistency and the criticism were important elements in our argument against subjective elements in the classification of property when the classification is based on the nature of the thing. This kind of classification should be interpreted objectively at the default level. Furthermore, the subjective classifications at the deviation level should be abandoned in favour of alternatives that are more transparent, dogmatically clear and in line with the Civil code’s systematics.