Numerus Clausus Under
Pressure: Moving From
Ownership To Access
The interplay between the access-based economy and the current system of
Dutch property law
E-mail: mighel.molenkamp@student.uva.nl Student number: 10779019
Master track: Privaatrecht (Commerciële rechtspraktijk) Supervisor: mw. mr. S. de Groot
Inhoudsopgave
0. Abstract ... 3
1. Introduction ... 4
1.1 Research and methodology ... 4
2. Societal relevance and economic background ... 7
2.1 Governmental agendas ... 7
2.2 Linear economy versus circular economy ... 8
2.3 Financing the circular economy ... 9
3. Legal issues in the access-based economy ... 12
3.1 The case of Philips and Light as a Service ... 12
3.2.1 Principle of unity ... 15
3.2.2 Accession ... 15
3.2.3 Component part or immovable? ... 17
3.2.4 Onerous acquisition ... 18
3.3 Consequences of transfer of ownership ... 21
4. Property law and the circular economy: current solutions ... 23
4.1 The right of superficies ... 23
4.2 The right of emphytheusis ... 25
5. Contract law and the circular economy ... 30
5.1 Contractual protection pre-bankruptcy ... 30
5.2 Contractual protection post-bankruptcy ... 31
6. Principles of property law ... 34
6.1 The numerus clausus principle and legal certainty ... 34
6.1.1 The principle of specificity ... 35
6.1.2 The principle of unity and publicity ... 36
6.2 What are the alternatives in other legal systems? ... 38
7. Conclusion ... 40 8. List of sources ... 43 8.1 Literature ... 43 8.2 Jurisprudence ... 45 8.3 Digital sources ... 46 8.4 Other sources ... 47
0. Abstract
Spotify, Swapfiets, and Philips’ ‘light-as-a-service’. All example of a transition from ownership to access. While contract law can keep up with these developments through its party autonomy, the system of property law is more rigid. As we are moving towards a society where the emphasis lies on use rather than ownership, the question is if the limited number and types of property law, the numerus clausus, can accommodate sufficiently for this. The importance of legal certainty with regard to this, has its motivation in sustainability. Access over ownership prevents the rapid depletion of resources. An area where the legal issues are prevalent in this transition is construction. While the technological developments keep evolving and the economic reality changes, there seems to be inertia in the field of Dutch civil law. There has been a call amongst service providers in the circular economy for legal revision, to cater more to their needs.
It showcases the problems service providers have with regard to accession of their goods in immovable property, which results in property loss. It is not just problematic for the service provider themselves, but also for their financiers. Moreover reuse is one of the core ideas of the circular economy, which loss of ownership can potentially thwart. This research focuses on the applicability of the current legal tools for the access-based economy. It highlights the interplay between property and contract law in tackling these issues, and features suggestions for possible alternatives by learning from other legal systems. Author concludes that the tools of superficies and emphyteusis in their current form do not sufficiently satisfy the needs of service providers. Contract law has proven to be a good tool to compensate for that pre-bankruptcy, but post-bankruptcy it does not seem to give the wanted results.
The author then researches the principles of property law and specifically the numerus
clausus principle and its application in other legal systems to determine the limits of potential
new measures. He then comes to two options: the adjustment of the right of superficies to focus less on the individuality of the objects, or the implementation of the DCFR rule where the retention of title holder acquires a security interest by operation of law.
1. Introduction
Spotify, Swapfiets, and Philips’ ‘light-as-a-service’. All examples of a transition from ownership to access. While contract law can keep up with these developments
through its party autonomy, the system of property law is more rigid. As we are moving towards a society where the emphasis lies on use rather than ownership, the question is if the limited number and types of property law, the numerus clausus, can accommodate sufficiently for this. The importance of legal certainty with regard to this, has its motivation in sustainability. Access over ownership prevents the rapid depletion of resources. There is a demand for transition to a
Doughnut Economy, one that strikes a balance between our societal needs and our ecological
ceiling. An area where the legal issues are prevalent for a transition to more sustainable use is in construction. The numerus clausus and mandatory rules for accession may form a barrier for the providers of circular goods. There are various legal instruments that can currently be used to counter this. For example, limited rights such as superficies and emphyteusis. However, technology continues to evolve and the question is whether the property law system can still cater towards the economic reality for the next 50 years. Essentially, law should conform to reality and not form a barrier for it. Therefore, it is important not to lag behind those developments. Moreover contract law continues playing a larger role in society, compensating for where property law might lack through its party autonomy. However, ownership gives the subject significantly more protection towards an object than contractual obligations can. This is what makes the quest towards the functioning of property law in current and future society so interesting.
1.1 Research and methodology
The goal of my research is to find out if the current closed system of Dutch property law suffices for our economic trends. While contract law can keep up with these developments through its party autonomy, the system of property law is more rigid. Although the base of my research is aimed towards the possibilities within the current system and what potentially should be changed, my outer boundaries are formed by the principles of property law. Any solution I suggest would have to fit within these principles in order to be feasible, as they are inherent to the functioning of property law. These principles are widely accepted in other civil law systems, therefore it is of importance to take those into consideration as well. Altogether, this lead me to the following question:
Does the current system of property law suffice - bearing in mind the economic trends, and if not, how should we adjust it so that it does?
This is answered through five sub questions.
1. What is the societal relevance and economic background?
In order to answer this question I used literature as well, as much has been written about the importance of transitioning to the circular economy on an administrative level as well as societal level. Moreover, I clarify the implications of moving from ownership to access.
2. What are the legal issues that arise with the access-based economy? In order to answer this question I used literature, as much has been written about the legal objections with regard to the access-based economy. I exemplify it through a more practical case of Philips’ lighting-as-a-service, and then magnify it in more detail. I also highlight what is desirable for the transition to a circular economy.
3. How does the current system of property law cater to the demands of the access-based
economy?
Again a lot has been written about the existing legal tools as a solution to the issues. I investigate what these tools are and if these tools are sufficient for the economy we are heading towards. 4. If no, to which extent can those insufficiencies be compensated by contract law? The interplay between contract and property law continues to play a role in the present and the future, here I research if contract law sufficiently compensates for the demands of the access-based economy through literature.
5. What is the idea behind the current system of property law?
In investigating if we actually need to change property law by drawing inspiration from other legal systems and seeing if we actually can change it bearing in mind the numerus clausus principle. It is important to research why property law is so rigid. These are the outer boundaries
of my research, and is the system I work within. This is mainly based on my own opinion and literature about the principles of property law.
While initially it was the plan to see this in the light of a larger part of the access-based economy, I have restricted the scope of this research to construction since the rigid system of property law is most prevalent there and the need for sustainable methods the largest. This meant I could keep my research more specific.
To conclude, the societal relevance and economic background shows us the trends and sets the stage for my research. Then I identify the problems and solutions with the current legal system, both in property and contract law. Subsequently, I research what the outer boundaries of my research are by looking at the principles of property law – any suggested change has to comply with these principles. Finally I try to answer my thesis question: does the current system of property law suffice - bearing in mind the economic trends, and if not, how should we adjust it so that it does?
2. Societal relevance and economic background
2.1 Governmental agendas
The societal relevance of this topic has been clearly addressed by both the European Commission and the Dutch government. Both institutions underpin the need for a more sustainable future and the underlying tool of circularity. One of the Commission’s priorities for its Member States is a growth strategy that transforms the Union into a modern, resource-efficient and competitive economy. It aims to decouple economic growth from resource use.1
An expression of that aim is the EU Circular Economy Action Plan, which announces initiatives along the entire life cycle of products, targeting for example their design, promoting circular economy processes, fostering sustainable consumption, and aiming to ensure that the resources used are kept in the EU economy for as long as possible. It contains measures that focus on sectors that use most resources and the potential for circularity is high.2
The Dutch government has also reiterated this need in their country-wide programme
‘Nederland circulair in 2050’.3 The aim of this programme is a circular economy that heavily
reduces waste. The circular economy gets described as: ‘restorative and regenerative by design, and aims to keep products, components and materials at their highest utility and value at all times’.4 Part of this programme is their more specific ‘Uitvoeringsprogramma Circulaire
Economie 2019-2023 which gives an outline of measures to be taken for transition to a circular
economy. It is an agenda that describes the strategy for reaching the aforementioned, backed by researchers, government, and stakeholders. One of their main focus points is construction as it is a large part of the economy. Circularity in construction does not just entail cost reduction through reuse and smart use of materials, but also a demand for new goods and services.5 Elphi
Nelissen, head of the programme, states that a circular construction economy is inevitable, the only question is how fast.6
1 https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en 2 Ibid.
3 https://www.rijksoverheid.nl/documenten/rapporten/2016/09/14/bijlage-1- nederland-circulair-in-2050’.
4 https://www.ellenmacarthurfoundation.org/circulareconomy/concept. 5 Uitvoeringsprogramma Circulaire Economie 2019-2023 Rijksoverheid 6 Ibid.
The Dutch minister of Economic Affairs and Climate echoed this in his letter to the Speaker of the house of Representatives in May. The above also means that the key industries, will have to switch to circularity. Partly through the qualitative changes in the demand for final products, under influence of sustainability requirements for raw materials and production processes, and partly because of new technological possibilities. Smart reuse of raw materials and materials, circular design of semi-finished products, will lead to CO2-neutral production of existing products, but also completely new, still unknown products and business models that provide for current and future demands.7
2.2 Linear economy versus circular economy
In the linear economy – our current economy – the most common business model is that a seller puts its goods on the market and sells them. The seller stipulates a retention of title clause8 to
guarantee payment of the price of the good(s), or can revendicate in case of no payment. Principle is the sale of as many goods as possible, and its corresponding transfer of ownership. Reparations, warranties, and liabilities are part of the right price and revenue model. It also takes into account that the delivered goods can be resold or used for manufacturing. For the reason that the mandatory rules regarding accession determine that a retention of title clause is lost in those cases.9 The consequence of the focus on selling as many goods as possible means
that producers design products with an artificially limited useful life. The rationale behind this is an increase in long term sales through time reduction between repeat purchases.10
In the circular economy the business model does not revolve around the sale of goods. On the contrary, it is based around a sustainable relationship between the supplier and end-user on a subscription basis.11 In order to reduce the amount of maintenance a producer will opt for
higher quality materials to promote a lengthy lifespan. This is justified by the intention of the producer to retain ownership, in order to reuse the good at the end of contract. Subsequently less products and materials are needed. It is a double-edged sword: less gets produced and less
7 Nr. 15 Brief van de minister van Economische Zaken en Klimaat Aan de Voorzitter van de Tweede Kamer der Staten-Generaal Den Haag, 15 mei 2020
8 Article 3:92 BW
9 Koolhoven, R. (2018) Worden ‘slimme’ zaken in de circulaire economie ook nagetrokken? WPNR 10 Giles Slade (2006), p5.
11 https://images.philips.com/is/content/PhilipsConsumer/PDFDownloads/Global/PDFs/ODLI20180105-UPD_en_AA-LaaS_Brochure_Office1.pdf
goes to waste.12 This also means less machines, and the machines that are made will last a while
due to their repairability and modularity. All in all, the circular economy is an important step towards a more resource independent society with less depletion of raw materials.13
In her book Doughnut Economics Oxford University’s Kate Raworth stresses the need to strike a balance between our social foundations and ecological ceilings. She indicates that industrial manufacturing has already begun the metamorphosis from degenerative to regenerative design. This requires a shift of focus from monetary value to a new understanding of value. Namely where economic value does not lie in the throughflow of products and services but in the wealth that is their recurring source. The accent on the searching for ever-lower cost ever-greater product sales has had intense material throughflow as a result.14
2.3 Financing the circular economy
Companies often finance their activities with debt capital. In order to warrant a return of their loan, financing parties – mainly banks - usually demand security interests in the property of the borrower. While banks can opt for a contract of suretyship, they have a preference for collaterals or a combination of both. This is because of the priority position that is attached to security interests in the event of recourse. Secured creditors can exercise their rights in bankruptcy of the debtor as a separatist on the basis of these security rights.15
Companies with circular business models are also in need of finance for their activities. However, they experience difficulties in meeting their need for debt capital. This mostly lies in their innovative earning models which contain uncertainties for lenders, but also in the potential loss of property and its consequential loss of security interests.16 It can be difficult for the bank
to make a good risk assessment for a company with a product-as-a-service business model. The bank uses measuring points that are based on the linear economy. It bases its assessment on the borrowers cash flow, solvency, track record, and size and quality of the offered securities.
12 https://www.rijksoverheid.nl/documenten/rapporten/2016/09/14/bijlage-1- nederland-circulair-in-2050’.
13 Koolhoven (2018)
14 Raworth (2017), p. 222-223
15 Articles 3:227 and 3:278 (1) BW in conjunction with Article 57 (1) Fw
Businesses in the circular economy often deviate from the values desired by in their respective financial metrics. This becomes extra clear once you compare a circular company to a linear company. A transaction leads to immediate income with the latter, contrary to the product-as-a-service model where the income is spread out over a longer period of time. In other words, the cash flow is contrasting and should hence be valued differently. Moreover, solvency associated with the product-as-a-service model is different from its counterpart. Often a relatively large amount of working capital must be utilised to be able to provide the customer with both the product and the service. This leads to an extension of the balance sheet, resulting in a less favourable solvency ratio.17 Other than that the nature of circular businesses, as
predominantly new and innovative, means that their track record does not help them in attracting finance either.18 Raworth clarifies that the shift to regenerative economics design
can be monitored only if it is backed up by metrics that reflect its mission. Monetary metrics alone will inevitably fall far short of reflecting the value created in a regenerative economy. A focus on other sources of wealth namely human, social, ecological, cultural, and physical is necessary to truly indicate the value of the circular economy.19
Banks can of course adjust their risk assessment model to correspond with the earning models of circular companies. This means they will have to spend more time on due diligence, which is no sinecure by all means.20 For this reason security interests are the go-to choice for
banks. However, as illustrated in the previous chapter, the problem lies in the acquisition of ownership through accession and the loss of the security interest therewith. Finance is an integral part of the success of most businesses, therefore it is relevant to seek solutions to accommodate this.
The above problems indicate is that what we need is certainty for both service providers and financiers. As well as a shift from monetary parameters to parameters that are actually beneficial for our planet – bearing in mind our social foundations and the ecological ceilings.
17 It is the intention of the manufacturer to reclaim the products at the end of term. So that the manufacturer can reuse and refurbish the product. However if the price of reclaiming the good is higher than the market price in a second-hand market, the current regulations do not speak of sale, but of rental. The product must then remain on the manufacturer’s balance sheet, leading to balance sheet extension.
18 https://www.ellenmacarthurfoundation.org/assets/downloads/ce100/FinanCE.pdf 19 Raworth (2017), p.240
20
https://www.abnamro.com/nl/images/Documents/040_Duurzaamheid/Publications/ABN_AMRO_Circular_Eco nomy_Finance_Guidelines_2018.pdf
This would promote more engagement in circular business models, benefitting us in the long term. Should we move to a model where property is functional or stick with a model where property is essential, that is a question Thomas Rau posed.21In the next chapter I showcase what
issues arise legally in the access-based economy.
3. Legal issues in the access-based economy
3.1 The case of Philips and Light as a Service Koninklijke Philips N.V. (Philips) is a company that provides Light as a Service (LaaS). It is a service delivery model in which light service is paid for through a fixed monthly rate by the end-user, rather than by a one-time payment. The end-user has the lighting as an object on loan, whilst Philips builds and maintains the lighting infrastructure. Through technology Philips then ensures efficient use of the lighting. As a result the client does not need to invest a significant amount on the lighting, does not have to worry about maintenance and repairs, and receives a lower energy bill. The idea is that light becomes an utility, such as water, gas and broadband.22
Moreover, this shifts the dynamic from designed to fail to designed to last.23
The ownership of the lighting is supposed to remain with supplier until the end of the contract. The aim of this construction is that Philips can reclaim the lighting at the end of the term and reuse it without having to source new materials, which is a cost-saving incentive for them. Legally this arrangement looks similar to a lease. However, leasing becomes more complicated when a movable24 – in this case the lighting – becomes united with other -
immovable - parts of the building25 and becomes an integral part of it.26 This is not the case
with, for example, a car which is a movable pur sang.
The main question here is if Philips can continue to be the owner of the lighting if it becomes property of the end-user, or that of the owner of the building when it comes to most retailers, through accession. Seeing the lighting and the building are specifically constructed to fit each other and the building would be incomplete27 without the lighting.28 The lighting then
22 https://images.philips.com/is/content/PhilipsConsumer/PDFDownloads/Global/PDFs/ODLI20180105-UPD_en_AA-LaaS_Brochure_Office1.pdf
23 Rau & Oberhuber (2017), p. 19-20
24 Article 3:3 (2) BW: “Movable are all things that are not immovable.”
25 Article 3:3 (1) BW: “Immovable are the land, the not yet mined minerals, the plants connected with the land, and the buildings and constructions permanently attached to the land, either directly or through a connection with other buildings or constructions.”
26 Van Erp 2013, p.621-622
27 The criterion of completeness seems more relevant, as the lighting can usually be removed and installed with nuts and bolts, especially with LaaS. Article 3:4 (2) BW does therefore not apply.
qualifies as a component part according to Article 3:4 BW. Article 5:3 BW then adds that ownership of a thing covers all its component parts. Therefore, the end-user becomes owner through accession. The loss of ownership can in return have consequences for Philips when the end-user becomes insolvent.29 The lease is a contractual obligation and has no proprietary
effect. As a consequence, Philips runs the risk that the component and the building get sold altogether in insolvency.30 The two norms laid out in Articles 3:3 in conjunction with 5:20 or
Articles 3:4 in conjunction with 5:3 BW31 form a barrier for LaaS providers like Philips.
However, if the lighting qualifies as a part of a network, which qualifies as immovable32, there
is a possibility that it does not accede to the property. Yet, it has to qualify as a network first in line with Article 5:20 (2), which depends on factual and functional unity of the network. If the answer to the latter is negative, the lighting still accedes according to the general rules of accession. Once again, showcasing that accession is highly dependent on common opinion.33 A
thermal energy system, for instance, qualifies as a component part of the ground in line with Article 5:20 (1), but becomes part of the net as soon as the ownership has been transferred to the provider, through delivery or establishment of a superficies.34
While LaaS illustrates the current legal issues, it is not limited to merely this case. Many more components within buildings have the potential to be reused and replaced and deal with the same legal framework surrounding accession and ownership. These rules eventually impact sustainability in the grand scheme of things, since the ambiguity surrounding ownership makes suppliers hesitant to opt for circular building components.35 What we therefore need is clear
rules on ownership that do not mainly rely on the common opinion. This would ensure that potential suppliers and financiers of suppliers are less hesitant to engage in circular business models.
29 For instance, the right to reclaim the thing as an owner. (Article 5:2 BW) 30 Article 23 Fw
31 A thing accedes either because it should be seen as an immovable and therefore a part of land in the sense of Article 3:3, or it accedes because it should be regarded as a component in the sense of Article 3:4
32 Van der Plank (2016), 5.1.2 33 Van der Plank (2016), 5.4 34 Van Loenhoud (2019)
35 https://www.duurzaamgebouwd.nl/artikel/20180608-stimuleren-van-circulariteit-in-de-bouw-vraagt-aanpassing-in-burgerlijk-wetboek-boek-5
3.2 Legal barriers of product-as-a-service
In essence product-as-a-service qualifies as a business-model based on the sale of the use and functionality of a certain material or product, where the material or product remain both legal and economic property of the service provider. The end-user is only interested in the usus36 and
fructus37 of the thing in question. They are not interested in the absusus38 of the thing, hence the economic risk and responsibility, for instance maintenance, repair, and devaluation, remain with the provider.
Moreover, the idea that the provider remains both economic and legal owner is in line with the principles of circularity. The retention of economic ownership could be an incentive for the provider to use higher quality materials as part of good service, but also to maintain the quality for a longer period of time: less maintenance, repair, and devaluation.39 The cost-saving
incentive for the service provider lies in less spending on raw materials and waste management.40
Retaining ownership can be problematic when the used materials or products – as a consequence of product-as-a-service – become a component of the property of the end-user, for example, sanitation, modular partitions, or lighting. The mandatory rules of accession as laid out in Article 3:3 read in conjunction with 5:20 or Article 3:4 read in conjunction with 5:3 mean that the end-user acquires the ownership and abusus therewith. Giving the end-user the ability to revendicate41, to transfer42, or encumber the thing with securities.43 Ownership is the most
comprehensive property right that a person, the ‘owner’, can have to a thing.44 The sole
limitation lies in Article 5:1 (2): ‘the owner is free to use the thing to the exclusion of everyone
36 The right to use or enjoy a thing possessed, directly and without altering it. 37 The right to derive profit from a thing possessed.
38 The right to alienate the thing possessed, either by consuming or destroying it, or transferring it to someone else. 39 Van Oostrum 2020 40 https://www.ellenmacarthurfoundation.org/assets/downloads/ce100/CE100-CoPro-BE_Business-Models-Interactive.pdf 41 Article 5:2 BW 42 Article 3:84 (1)
43 Article 3:84 in conjunction with Article 3:98 44 Article 5:1 (1)
else, provided that he respects the rights and entitlements of others to the thing and observes the restrictions based on rules of written and unwritten law’.45
3.2.1 Principle of unity
A strong physical bond between two things is not necessarily required for accession to take place. A strong economic bond suffices, where the value of the unity exceeds the value of the individual objects. The principle behind the concept of accession is the protection of third parties. If the outward appearance of something is immovable, according to common opinion, it should be treated as such – third parties should be able to trust their eyes. If the outward appearance is that of unity but the legal reality is different, this should be reflected in the land register.46 Accession cannot be contractually excluded, parties cannot by agreement determine
whether something is a physical or economic unity. Seeing contracts only have effect between the agreeing parties, that would mean third parties would no longer be able to rely on the factual situation.47 This premise is essential for the functioning of property rights, that can be exercised
vis-à-vis anyone and derive their absolute effect through their publicity and specificity.48
The principle of unity is a barrier for the circular economy, as it is a driver for linear production.49 Service providers like Philips aim to manage all the maintenance and repair work
throughout the life of the contract.50 The underlying implication of this is that there is no
intention for a transfer of ownership. They intend to remain owner so that they can revendicate the lighting at the end of the contract term. Thus, the principle of unity is not in favour of the concept of product-as-a-service.
3.2.2 Accession
Before we move on to the ownership of a building and its components it is of importance to define a building legally. Article 3:3 (1) BW gives a definition of what is immovable:
45 De Groot (2013). Nr. 56
46 Through, for example the creation of a right of superficies (elaborated in chapter 3) 47 Van Erp (2012). p. 619-620
48 Akkermans (2008) p. 5 49 As concluded in Chapter 2
50 https://images.philips.com/is/content/PhilipsConsumer/PDFDownloads/Global/PDFs/ODLI20180105-UPD_en_AA-LaaS_Brochure_Office1.pdf
‘Immovable’ are the land, … and the buildings and constructions permanently attached to the land, either directly or through a connection with other buildings or constructions. This also applies to buildings or structures that are technically movable but are designated, by its nature and design, to remain somewhere for a considerable period.51
The surrounding area is not a relevant criterium to determine if a thing is immovable or not.52 These two specifications in jurisprudence are especially significant in sustainable
housing, as movability is omnipresent.53
The scope of the right of ownership of land is defined in Article 5:20: ‘The ownership of land comprises, … building and constructions permanently attached to the soil, either directly or through a connection with another building or construction, unless they are a component of someone else’s immovable thing;’. Consequently, when a certain object qualifies as an immovable under Article 3:3 (1) BW, it is acquired by the landowner by way of accession under Article 5:20 BW.54
Perhaps more relevant for circular buildings is accession through Articles 3:4 and 5:3 BW. Article 3:4 defines the component parts of a thing: ‘(1) Everything which according to public opinion forms part of a thing, is part of that thing. (2) A thing which is connected to a principal thing in such a way that it cannot be separated without considerable damage to one of the things, becomes part of the principle thing.’55
Article 5:3 BW states that as far as the law does not provide otherwise56, the owner of a
thing is the owner of all its components: also known as the principle of unity.57 The first
justification of this principle is that the value of the unit exceeds the value of two separate components. The second justification is that the exploitation of components eo ipso is hard or impossible.58 A gloss regarding these principles is that they are based on a linear economy.
51 NJ 1998/97 Portacabin 52 LJN: BK9136 Floating house
53 https://www.voordewereldvanmorgen.nl/duurzame-blogs/deze-6-tiny-houses-staan-in-nederland 54 De Groot, S. (2013). Nr. 3
55Van Erp (2013) p. 625
56 Through, for example the creation of a right of superficies (elaborated in chapter 3) 57 NJ 1936/757 Sleepboot Egbertha
With regard to the circular economy these principles should be valued differently. Firstly, in the circular economy, the separation of a component does not necessarily imply loss of value. Secondly, separation and reuse are what the circular economy revolves around. Finally, the reusability of the component means that continuous exploitation is not as hard or impossible as in a linear economy.59
3.2.3 Component part or immovable?
Another possible complication for suppliers in a circular economy stems from the discussion whether a thing is movable or immovable, after the Portacabin-case. The portacabin was seamlessly attached to the land and building. It was placed on a concrete foundation with a skirting-board to close the gap between the land and the cabin. Moreover the cabin was connected to the sewerage, and to gas, water, electricity.60
In this judgment, the Supreme Court gave substance to the words 'permanently connected to the land' by stipulating that a building or work can be permanently united to the land (and is therefore immovable) if, according to its nature and design, it is intended to remain permanently on site.61 It is then no longer important that it is technically possible to relocate the
building. The Supreme Court added that when answering the question of whether a building or work is intended to remain permanently on site, attention must be paid to:
(1) the intention of the builder, in so far as it is apparent to third parties;
(2) whether the purpose of a building or work to remain permanently on site is apparent to third parties.
In this respect, common opinion cannot be used as an independent yardstick for assessing whether a property is movable or immovable. It may, however, be taken into account in cases where, in answering the question, uncertainty remains as to whether an object can be regarded as permanently attached to the land.62 The implication of this Supreme Court ruling is an
59 See chapter 2 60 Van Erp (2013) p.620 61 NJ 1998/97 Portacabin
interpretation of accession that is, in practice, too wide for the circular economy. Koolhoven argues that it would be desirable to return to the criterion of immovability, so as to prevent circular goods from most likely acceding.63 So while the common opinion might change and
prevent circular things from acceding to the building, it will accede in the case it does not.64
3.2.4 Onerous acquisition
In principle, original acquisition spawns a new property right that is unencumbered. The idea behind this is that this new property right does not derive from a legal predecessor. This new property right cannot be corroded by a legal predecessor either, in contrast to derivative acquisition, in which the property right does derive from a legal predecessor. This type of property can be transferred encumbered. After all, it does not qualify as a newly spawned property right, but as one that already existed – encumbered or not. The right gets transferred in the same capacity as in which it was situated with the legal predecessor.65
In order to attract finance – or to receive lower interest on their loans - it is common for suppliers to create security interests in their property. In the case of accession, the pledge on the thing of the legal predecessor – in casu the service provider - would disappear, considering accession is a form of original acquisition. Moreover, after the Rabobank/Reuser case the position of the financier of the end-user has been strengthened. Goods transferred with a retention of title clause, in which the payment obligation has not been fulfilled by the end-user, can be fulfilled by the pledgeholder of the end-user to make it part of the bankruptcy estate. This means that the financier of the circular business also loses their security interest in case of bankruptcy of the end-user, just like the supplier under retention of title loses their property.6667
However, the Dutch Supreme Court has left space for a transfer of encumbrance in the case of commingling of movable property68 – which is a form of original acquisition. In the
Zalco judgement69 a nuance was vested regarding acquisition of encumbered things subject to
63 Koolhoven (2018)
64 Mes, Ploeger, & Jansen (2016) p.160 65 Van Oostrum (2020)
66 HR 3 June 2016, ECLI:NL:HR:2016:73 Rabobank/Reuser 67 Van Boom (2017)
68 Article 5:15 BW: ‘When movable things which belong to different owners are intermixed in such a way that they have become one single thing, …’
commingling. The case was as follows. A Dutch aluminum producer, Zalco, had encumbered its supply with a non-possessory right of pledge. This right of pledge had been granted to Glencore, a supplier of raw materials for Zalco’s aluminum. Moreover it had encumbered its factory building – which included the furnaces – with a hypothec granted to ZSP among others. Zalco was declared bankrupt, and there was still a substantive amount of fluid aluminum present in its furnaces. Production was continued for a few days after bankruptcy was declared. Consequently, the encumbered liquid aluminum commingled with a considerably larger unencumbered amount of liquid aluminum. The question arose who was entitled to this new commingled supply of aluminum, both Glencore and ZSP claimed they were entitled to it. Did the right of pledge disappear due to the commingling or not?
Both the judges in the first instance and the second instance ruled that the right of pledge had disappeared due to commingling, in line with the rules of original acquisition. They argued that the encumbered aluminum became a component of the unencumbered aluminum through commingling.70The Supreme Court opts for a practical approach to property law rather than a
dogmatic one. Commingling of two similar things does not have to lead to an unnecessary loss of rights, three different situations can be distinguished:
(1) the pledge lapses when it is vested in a thing that becomes a component part of another thing;
(2) the pledge remains if it is vested on the thing that is considered the principal thing after commingling;
(3) If the principal thing cannot be determined, a new thing is created under Article 5:14 (2) BW. By operation of law a new pledge shall be vested on (a part of) the new thing on behalf of the person who established the right of pledge on the good that was extinguished due to the commingling.71
This means that insolvency is not necessarily a barrier for the acquisition of a right of pledge. It gets vested by operation of law and is independent of the power of disposition of the
70 Article 5:15 in conjunction with Article 5:14 (1) and (3) BW
owner of the encumbered object. Thus the fixation principle does not play a role in such cases.72
If the rules from this case also apply to other forms of acquisition than commingling, then the bank can keep its security interests in cases (2) and (3). However, it is questionable if the bank profits from this. Generally speaking the bank would keep their security interest if it is vested in the principle thing. In the case of product-as-a-service the said products are usually considered a component part of the principle thing, meaning that the right of pledge disappears.73
The above case also showcases the trend in property law of a shift from a more practical instead of dogmatic approach through use of a collective right rather than a strict interpretation of the individuality criterion.74 Inspired by article IX 2:309 of the Draft Common Frame of
Reference which states: “where encumbered goods are commingled in such a way that it is impossible or economically unreasonable to separate the resulting mass of mixture into its original constituents, but it is possible and economically reasonable to separate the mass or mixture into proportionate quantities, the security rights continue as encumbrances of the rights which the former owners of the goods have in the resulting mass of mixture by virtue of VIII.”75
In other words, commingling of goods from separate owners leads to co-ownership. In German law there is a similar clause that ensures retention of the security interests in the new commingled good in §949 BGB. Moreover, French law ensures that seller with a retention of title clause retains his right in cases of commingling.76 In all cases the idea is that commingling
of similar goods does not lead to unnecessary loss of ownership.77
However, this would not necessarily work for other forms of original acquisition. The main difference between commingling and other forms of accession is that commingling happens occurs with goods of the same value or substance, this is not the case with LaaS where the price of the building exceeds that of the lighting and the lighting is distinguishable by form and type of good. In other words, we can make an economic or physical distinction between the acceded objects. Therefore, we would require a different method to protect the interests of the supplier than the method as set out in the Zalco case.
72 Van Oostrum (2020) 73 Ibid.
74 Nieuwesteeg (2017)
75 HR 14 August 2015, ECLI:NL:HR:2015:2129 Glencore/Nationale Borg c.s. 76 Sagaert (2003), nr. 463.
3.3 Consequences of transfer of ownership
As illustrated above the consequence of accession is a transfer of ownership from the service provider to the end-user. In case the product was encumbered with a security interest, the security interest dissolves by operation of law. In the vast majority of the cases this does not cause many issues, as the service provider can expect the end-user to return the product at the end of term. However, the demarcation of property becomes most important in cases of bankruptcy. When the end-user goes bankrupt before he has returned the product to the provider, the product becomes part of the bankrupt estate.78 As a consequence the end-user
loses his power of disposition and administration over the assets.79 In short, the end-user will
not be able to return the product to the service provider.80 By operation of law, the bankruptcy
trustee obtains the power of administration over the assets and is responsible for the liquidation of them.81 In other words, the product has become part of the bankruptcy estate due to the
previous accession, hence the bankruptcy trustee cannot return the product to the manufacturer either.82 The bankruptcy trustee is also responsible for the liquidation of the assets, which entails
the competence to sell the said product by execution.83
The purpose of bankruptcy is to settle creditors’ claims from the estate. In order to safeguard the interests of creditors as much as possible, the estate is divided in accordance with the paritas creditorum principle.84 Legal actions aimed at the fulfilment of an obligation from
the estate cannot be instituted in any other way than by submission for verification.85 While this
will mainly entail monetary claims, it also covers the delivery of goods – and the obligation to return the product to the service provider as well.86 This means the manufacturer can only
expect the obligation to be fulfilled after verification with the bankruptcy trustee. However, in practice the goods get sold by execution first, so the manufacturer will usually have a monetary claim.87 Moreover, fulfilment of the obligation cannot always be expected as this would most
78 Article 20 Fw 79 Article 23 Fw 80 Article 35 (1) Fw 81 Article 68 Fw 82 Article 35 (1) Fw 83 Article 68 Fw 84 Soedira (2011) 85 Articles 26 and 110 Fw 86 Van den Heuvel (2020)
likely affect the position of other unsecured creditors.88 It is more rule than exception that the
end-user establishes a right of hypothec on the building in order to finance it. Consequentially, the building, including the acceded product, is utilised to fulfil the claim of the hypothecary.89
What is left – in case there even is something left – remains to fulfil the claims of the unsecured creditor, including that of the service provider. In most cases this is merely a few percentages of the original claim.90
88 NJ 2007/155 Nebula 89 Article 57 Fw 90 Jonkers (2016)
4. Property law and the circular economy: current solutions
4.1 The right of superficies
A property right that is often mentioned as a way to aid service providers in the circular economy is the right of superficies. The right of superficies is defined in Article 5:101 BW,
which states:
(1) The right of superficies is a property right to have or acquire a right of ownership in, on or on top of buildings, constructions or plantings on an immovable object, that belongs to someone else.
It is a limited property right as defined in Article 3:8 BW.91 Seeing superficies is a
limited property right vested in an immovable, the superficies is also a property subject to registration.92 Moreover, this right of superficies does not only relate to the superficies vested
at time of creation, but also to those that the owner vests at a later point in time.93 This property
right breaks with the general rule in Dutch property law that what can be considered part of the main object is part of that object.94 The owner of the immovable that the superficies is vested
in does not only have to tolerate the right in rem, but above all that the superficiary is the owner of the buildings, constructions, or plantings.95 It creates a split in the object of the right of
ownership and results in two rights of ownership; one on the immovable object and one on the object that is split from that object.96 Only through the establishment of a right of superficies
can one acquire ownership in someone else’s property in Dutch law, and the possibility to encumber that acquired property.97 In the case of product-as-a-service this could help
manufacturers to regain their ownership and counter the negative effects of accession and bankruptcy, as they would be able to revendicate their goods as the owner.98
91A ‘limited property right’ is a right that is derived from a more comprehensive right, which is encumbered
with the limited property right. 92 Articles 3:10, 3:98, 3:84, 3:89 BW 93 Bartels (2017) nr. 248 94 Akkermans (2008), p. 283 - 284 95 Hoofs (2012) p.95 96 Ibid. 97 Struycken (2007), p.68 98 Article 5:2 BW
Nonetheless, the property right of the superficiary cannot be alienated or encumbered. It was argued that, in the description of Article 5:101 BW, the right of superficies and the right of ownership are inextricably linked. Meaning that, on the one hand, that if the right of
superficies is transferred to someone else, the latter becomes owner by operation of law, and
on the other hand, the superficiary cannot dispose of the right of ownership separately from the right of superficies.99 An important criterium for the establishment of a superficies is the,
controversial, independency of the thing. Firstly, it is not always clear when an thing is sufficiently independent to be subject to superficies.100 Secondly, it is not clear if superficies
can be utilised to individualise a thing that, according to common opinion, is part of an immovable.101 Proponents of the ability to individualise it contend this is conditional on the
economic independence of the thing itself.102
This raises the question if the products of the service provider are sufficiently individual to be suitable for establishment of a right of superficies. Roof tiles are an example of things that are not individual enough for superficies, but certain building layers are.103 The right of
superficies can be used as a tool to prevent accession from a machine in a building. A broad
interpretation could entail the use of a right of superficies as an alternative security right for things that risk becoming a component part of a thing.104 Depending on if the machine and
building are specifically constructed to fit each other or if the building would be incomplete without the equipment.105 Theoretically the above method could also be possible for
construction materials.106 A strict interpretation would mean that it is not possible to
individualise a thing by establishing a right of superficies. The establishment of a right of
superficies then depends on the individuality of the object itself. The implication of this is that superficies can prevent accession in accordance with Article 5:20, but cannot prevent accession
through the principle of unity.107108
99 Bartels (2017) nr. 248 100 Van Oostrum (2020)
101 Van der Plank (2016), p. 50-51 102 Bartels (2017) nr. 248c 103 Van der Plank (2016), p. 44 104 Ibid. p.63
105 NJ 1993/316 Depex v curatoren Bergel 106 Pitlo/Reehuis & Heisterkamp 2012, nr. 668. 107 Van der Plank (2016), p. 44
Besides the individuality of the object, the economic justification of the division of the component part in favour of exploitation should be considered as well.109 The follow-up
question to this is, when is it economically justified? Even in standard cases the establishment of a right of superficies leads to depreciation, as the value of bare property and superficies together normally subceeds that of full property.110 The conflicting opinions surrounding the
right to superficies illustrate that the underlying criteria are highly subjective, which does not improve legal certainty among service providers.
The bankruptcy of the end-user does not create grounds to terminate the superficies. The
superficies is a right in rem with effect under property law that can be exercised against anyone,
including the bankruptcy trustee. Rights under property law can be exercised as if no bankruptcy has been declared. Failure to respect these rights results in a wrongful act, causing in an estate debt, as a result of which this debt must be paid in priority to ordinary creditors. Incidentally, this does not automatically mean that the trustee in bankruptcy can be forced to cooperate as a matter of priority with regard to all the obligations attached to the property rights of the bankrupt end-user.111 So in case of valid establishment of the superficies it gives the
service provider a lot of protection. Which, once again, depends on the common opinion. Other than that, the establishment of superficies requires a deed, which is costly and reduces the speed of the daily course of business.
4.2 The right of emphytheusis
Another potential way to safeguard the interests of the service provider is through the right of
emphyteusis. Emphyteusis is defined in Article 5:85 BW:
(1) Emphyteusis is a limited property right which gives its proprietor, the emphiteuticary, the
right to hold and use an immovable thing of someone else.
Moreover, Article 5:89 (1) states that unless provided otherwise in the deed of creation, the holder of the right of emphyteusis will have the same power to enjoy the object as the owner.112
109 Vonck (2013) p.61-62 110 Ibid.
111 Van de Bunt& Visser (2019) 112 Van Erp (2013)
This also means the enjoyment can be limited in the deed of creation. The emphiteuticary has the capability to add buildings, constructions, or plantings on the object of emphyteusis. Use of emphyteusis would be in line with the circular economy, the circular things of the building are leased from the service provider – the emphiteuticary. The owner of the building has to pay a set amount per month for the thing, that meets the specifications agreed upon during the whole term.113 The emphiteuticary is responsible for repair and eventual replacement of the
product.114 Furthermore, emphyteusis offers enough possibilities to reacquire the object of
emphyteusis during and at the end of the term, and to agree upon consequences of loss of emphyteusis.115
However, the question remains if it is even possible to establish a right of emphyteusis in favour of a service provider, so as to give him the competence to erect his product for the building, in respect to which he can act as the owner.116The idea behind the contract between
end-user and service provider, is that the service provider can repossess his product at the end of it. It is not sure if the rules surrounding emphyteusis allow this.117 In particular, if it is possible
to give someone the enjoyment of a component part of a building through emphyteusis.118
It is generally accepted that horizontally layered emphyteusis is possible in the current system. This entails the establishment of multiple rights of emphyteusis on the same plot of land, with each right conferring the enjoyment of a specific building floor. For instance the creation of one where enjoyment is limited to land under ground level – like a parking garage – and one that limits the enjoyment to a certain floor above the ground.119 Less accepted but
also insinuated is that this is possible vertically as well, although the demarcated parts should be considered individual components. However, Article 5:89 does not explicitly allow for this.120 Others argue this is also possible if the component has enough economic
individuality.121 De Jong and Van der Plank contend that the criterium of (economic)
individuality plays a role when an immovable partly gets encumbered by a right of emphyteusis,
113 Articles 5:85(2), 5:94 BW 114 Article 5:96 BW
115 De Jong & Van der Plank, (2019) p.65 116 Ibid. p.66
117 Ibid. p.66
118 We already conluded that most circular products qualify as component parts in Chapter 3 119 Velten (2018), p. 578
120 De Jong & Van der Plank, (2019) p.67 121 Bartels (2017), nr. 221
but not in case its vested in the thing as a whole, or if the enjoyment is limited to a certain part of the immovable.122
To date, the Supreme Court has not ruled on any limits to the enjoyment of the
emphyteusis in the aforementioned situation. However, the Supreme Court has already
confirmed on several occasions that it is possible to encumber an entire immovable with a right of usufruct, whereby the deed of establishment restricts the use of the usufructuary to only a part of the immovable. In these judgements, the part for which the use was intended could not be regarded as an independent thing, as it related to the use of single rooms in an apartment.123
In order to create a limited right on a part of a thing, this part needs to be appropriate for vertical division. For the transfer of ownership of the part of a building and consequently for the creation of a right of usufruct two independent parts are required – they should not rely on each other for usage.124 De Jong and Van der Plank state that in line with this judgement, this is also
possible in the case emphyteusis is created on the entire thing, but the enjoyment is restricted to just a part of the thing.125
So while the principle of individuality seems to be problematic in the case of superficies, this seems less so regarding emphyteusis. Seeing superficies makes the superficiary owner of the part of the thing and Article 5:3 requires a thing to be independent as a criterium for ownership. Other than emphyteusis, where the emphiteuticary does not become the owner of the thing.126 Hence it may be a useful tool for the service providers in a circular economy.
Nonetheless, there are some disadvantages to the utilisation of this arrangement.
Firstly, Koolhoven argues that the right to emphyteusis only provides a usufruct and not a full property right.127 It only gives the ability to hold and use immovable property. Service
providers seek to retain ownership as this gives them the most protection in case of insolvency.128 De Jong and Van der Plank counter this by pointing out that this description does
not do justice to its use in practice. Whereas it was historically intended to grant a right in rem
122 De Jong & Van der Plank, (2019) p.67 123 Ibid. 124 Ibid. 125 Ibid. 126 Bartels (2017), nr. 221 127 Koolhoven (2018) 128 As discussed in 3.3
for the use of land, it has developed into an alternative to the right of superficies.129 In my
opinion, retention of ownership for suppliers is one of the most needed aspects for suppliers to transition to the circular economy, the fact that emphyteusis is not used like this in practice already indicates that law and practice do not match. Therefore, I agree with Koolhoven in this
respect that full ownership is desirable.
Secondly Streep contends that the emphiteuticary does not have the ability to reclaim the good at the end of the term. He is only entitled to the compensation of the value of the thing.130 De Jong and Van der Plank see this differently. Article 5:89 (3) BW provides that, in
so far as the deed of establishment does not stipulate otherwise, a emphiteuticary may remove the buildings, works and plantings, provided that he restores the limited property to its former states. The fact that the provision is written on ‘buildings and works brought in without obligation’ does not alter the fact that the deed of establishment may also provide that the
emphiteuticary has the ability to reclaim the thing at the end of contract.131 The compensation
of the value of the thing may prevent the circular aspect of the product. After the thing is placed the producer has no economic motive to maintain the thing, as Article 5:99 BW warrants compensation for the producer. It also has the effect that it makes it less attractive to produce a high quality good.132 Clarity in this respect is essential, as suppliers cannot fully depend their
production bearing in mind this uncertainty. I personally think that reclaiming the good would count more as active performance rather than a ius tollendi.133 Seeing this still needs to be
hashed out, emphyteusis seems to be less appropriate than superficies in this respect. Thirdly, finance is a potential barrier. It is unusual for a building to be built without finance and a corresponding right of hypothec. If this right is established before the right of
emphyteusis, the right of emphytheusis is extinguished in the event of foreclosure by the
hypothecary. Financiers would require some leniency in order to agree with this type of construction. Article 3:273 BW provides that in the event of foreclosure by the hypothecary all limited right lapse and cannot be invoked against the hypothecary. Only if the emphytheusis is established before the hypothec will it be maintained. During the construction of the building it is possible to establish this right on behalf of the emphiteuticary. Otherwise the hypothecary 129 De Jong & Van der Plank (2019) p.68
130 Streep (2018) 131 Ibid. p.69
132 Van Oostrum (2020) 133 More about this in 5.2
would have to agree with change in priority and have this registered in a deed.134 It is
questionable whether a financier would ever agree with a depreciation of his right of recourse. A different option is to have multiple vertical emphyteuses which can both individually be encumbered with a right of hypothec, so that any execution does not affect the other
emphiteuticary.135
Finally, the same argument can be used here as with superficies. Having to register everything in a deed does not improve the daily course of business and can have a deterring effect for manufacturers to even consider a circular business model. On the other hand, seeing this does provide some certainty it currently is the best option at hand. All in all, while both emphyteusis and superficies provide for solutions in the current legal practice, actors in the circular economy are not satisfied with the ambiguity surrounding both tools. However, superficies seems to be more suitable as it allows the service provider to remain owner and attract finance more easily, even more so if superficies could individualise the object.
134 Ibid. 135 Ibid.
5. Contract law and the circular economy
5.1 Contractual protection pre-bankruptcy
In the case of LaaS, we can conclude that the lighting is most likely acquired by the end-user. The end-user has become owner of the lighting by operation of law and has the usus, fructus, and abusus.136 Parties have stipulated in the contract that the end-user has to return the lighting
at the end of term. Despite the mandatory rules of property law, the end-user is still obliged to return the lighting when the lease ends.137 If there is any case of non-performance on the side
of the end-user in the form of perpetually missing payments or no payment at all, the service provider can send a formal notice and demand compliance.138 He can also pursue a
compensation claim.139 Or cover himself for such a situation by already including a penalty
clause in the terms of agreement.140 If the end-user decides to keep the product after the end of
contract against the will of the service provider, the service provider can continue claiming the regular rental rates and damages in case there are any.141 If it is clear the end-user has no
intention to perform the service provider can seize the product precautionarily.142 However, in
the event of rent, the lessor can only enforce the dissolution through the courts143, and it is
customary for the court to grant this with rent arrears of three months.144 This way the service
provider can enforce return of the product. Moreover, the service provider has the option to claim return of the product through a judicial procedure.145 The fact that the product has acceded
to the property of the end-user does not affect the contractual obligations and remedies available to the service provider. The case where the product accedes is made and the end-user refrains from performing qualifies as unjust enrichment, and this is a ground for action on the side of the manufacturer.146 Other than that, the service provider is also protected in case of transfer of
the building through Article 7:226 BW. This article stipulates that on the transfer of the immovable property, the rights and obligations of the lessor from the agreement, which subsequently become payable, are transferred to the acquirer. The third subclause of the same 136 Articles 5:1 and 5:2 BW 137 Article 7:224 BW 138 Articles 6:75, 6:81, 6:82 BW 139 Article 6:95 BW 140 Article 6:91 BW 141 Article 7:225 BW 142 Article 700 Rv 143 Article 7:230 BW
144 Van de Bunt & Visser (2019) 145 Article 3:296
article then states that these are terms of the agreement, which are directly related to the use of the property for a consideration to be paid by the tenant. A similar principle applies to buildings: these provisions must be sufficiently connect with the right in rem and must not conflict with the essence of the property.147
5.2 Contractual protection post-bankruptcy
In a regular situation where both parties perform accession does not matter, as the parties will adhere to their contractual obligations. In most situations the contractual remedies should suffice in the case of non-performance as well. However this is different in a situation where the demarcation of property law matters most, namely that of bankruptcy. The previously utilised precautionary seizure has no effect anymore in bankruptcy, the product has become part of the bankruptcy estate.148 We concluded previously that the service provider is an unsecured
creditor and the bankruptcy estate is divided equally over the unsecured creditors, in reality just a small part of their claim would get satisfied.149
One of the consequences of bankruptcy is that the bankrupt no longer fulfils its obligations towards creditors. Creditors have no choice but to submit their claim to the bankruptcy trustee. This consequence of bankruptcy goes beyond the fact that the bankrupt no longer meets its financial debts. Other obligations – like the return of the product – are also no longer met. The bankruptcy trustee has a ‘right’ to non-performance.150 On the 3rd of November
2006, the Supreme Court ruled on this 'right' of the trustee.
In the Nebula case the court adopted that in case of bankruptcy full performance of contract cannot be the norm, because it affects the rights of other creditors and the underlying
paritas creditorum principle.151 The value of the building including the circular product is
higher than without, thus the execution value is higher as well, meaning that other creditors get a higher recovery rate on their claims. For the service provider this means that the product only becomes a monetary claim that most likely will only be partly fulfilled due to the claims of
147 Van de Bunt & Visser (2019) 148 Articles 20 and 33 Fw 149 See Chapter 1 150 Van Zanten (2014) 151 NJ 2007/155 Nebula
