Transfer of movables in german, french, english and dutch law

Transfer of movables in German, French, English and Dutch law j: ' Promotores: r/Vfr iO Prof mr J.H.M van Erp Prof dr B.A Rudden (University of Oxford) ' Beoordelingscommissie: Prof mr G.R de Groot (voorzitter) Prof mr G.E van Maanen Prof dr R Schulze (Westfälische Wilhelms-Universität, Münster) ;! _f-""*-'7'J • ( i r * ! ^ ••'.•-.'•r i.""5ijn&i j A ii' +••! ^ ^ b ' ! ' •• o f Contents Preface Contents Abbreviations ^ , , , ' 13 Concise glossary 15 Introduction 17 Concepts and principles of the law of property Introduction The first dividing line: the tradition system and the consensual system The second dividing line: abstract and causal transfer systems Insolvency Specificity, absolute effect and the concept of the right in re The nemo p/us principle and the requirement of privilege of disposal Protection of third parties The principle of priority and the principle of droif de suite The principle of publication and the closely related principle of the protection of third parties Transfer of movables in German law 23 23 24 25 27 28 29 29 30 An abstract transfer system 1.1 Introduction 1.2 The tradition system 1.3 Abstract transfer system Transfer of ownership (Übereignung) 2.1 Introduction 2.2 The real agreement Possession and the transfer of possession (Übergabe) 3.1 The importance of possession 3.2 Possession 3.3 Possession: a fact or a right? 3.4 Transfer of possession (Übergabe) 3.5 Is the transfer of possession a legal act? 3.6 Geneißerwerb 31 31 31 32 34 34 35 37 37 37 40 48 49 50 TRANSFER OF MOVABLES substitutes 4.1 Introduction ''4E2''' frfld/f/o breyi ma«« 43 consh'fwfwm possessor/urn (Besifzfonsfifuf) 4.4 " Assignment of the HeraMsgabeawsprMc/i Privilege to dispose (Ver/ügungsbe/Lgms) 5.1 The privilege to dispose and its sources 5.2 E/naHf/igKHg is not a form of agency 5.3 Power to dispose 5.4 Right, privilege and power to represent Trad/fio by agents 6.1 The dogmatic problem 6.2 Using Besifzdi'ener or Besifzm/tt/er T h e French transfer s y s t e m ^ • , f 52 52 52 53 55 60 60 62 64 66 68 68 70 •••-•• - Introduction 1.1 Consensual transfer system 1.2 Identity of goods 1.3 The principle of specificity Real agreement in French law ' , ,."/.' 2.1 History '." .'.'! " 2.2 Systematic arguments Causal transfer system ' '' ! 73 73 74 75 75 76 81 89 Transfer of movables in English law Two different transfer systems 91 A) 91 Transfer based on sale Introduction 2.1 The so/o co«se«su rule 2.2 The risk of insolvency and the risk in the goods Identity of goods 3.1 Specific, quasi-specific and unascertained goods 3.2 The co-ownership regime of sections 20A and 20B ^.j; 33" ' Re Go/dcorp Exdwnge Lfd ^* 3.4 Rights IN re 33 A relationship between a person and an object * 3& The amendment of the Sale of Goods Act 3.7 The peculiar consequences of the specificity principle *" as to sales ex bulk 91 91 92 93 93 93 94 94 96 97 99 •KTiwvrif* 3.8 Co-ownership under sections 20A and 20B * *• *-r149 174, 177 131, 170, 173 § VII 2.2 : i;.'.' - ; ' i-) laissä p o u r compte = rejection legitime ••-.:* >*•.,-, 88 159 levering litis aestimatio loan 133, 136, 147 116"" 164 macht mancipatio Martinus Gosia Meijers, E.M Milsom, S.F.C mistake (see also defects of will) mixing (see also confusio/commixtio) money (see also coins and banknotes) mort, le mort saisit le vif mutuum pactum de mutuo dando 140, 147 § VII 2.2 173, 177 147, 198, 199 117 190 131 26, 74^, 131 47^ 84-87, 164, 165 164 naturalis obligatio nemo audirur propriam turpitudinem allegans nemo plus principle nemo sibi ipse causam possessionis mutare potest Nichtig see void nietig see void non-conforming goods Noodt, Gerard notarial deed novation 45, 57 114^ §I6 148-155 87 184 § VI 126 obligatio naturalis see naturalis obligatio occupatio ontbinding see termination ontwerp 1898 ontwerpen 1816 and 1820 Opzoomer, C.W Orderlagerscheine, VO über die original acquisition Oven, J.C van overdracht -•-.••*«, Pandectae see Digest Pandectism (see also gemeines Recht) parfaite payement de l'indu see undue payment pays de droit coutumier INDEX 144, 147 198 197 198 102" 65, 114, 131, 144, 147 198 136 ,:-v ;•• ,.-., , = 20 73' • •.-•••- 76 249 TRANSFER OF MOVABLES pays de droit £crit Pollock, Sir F Portalis possession direct possession indirect possession possessory remedies/interdicts Pothier power to dispose power to represent pre"caire, (clause de) prescription acquisitive prescription extinctive prescription pret de consummation priority, principle of privilege to dipose privilege to represent prohibition of interversion proprietary rights see real rights protection of third parties publication, principle of Puchta, G.F Pufendorf, von quasi-specific goods 76 20\ 115 79, 80 § II 37 37, 46 39, 44 79, 151, 175*, 193-195 § II 5.3, 146 § II 5.4 78*° 47, 149 47, 152 85-87 §I8 § I 6, § II 5, 64, 146, § V 63, § II 5.4 § V 3.5 § I 7, § I 9, 191 § I 9, 145, 148 161, 162, 198 79 74, 93 real agreement 31, § II 2.2, 60, § III 2, § IV 4, § V 2, 157, 167, 190, § VIII 1.3 real contract 84, 157, § VI real rights (see also right in re) §I5 Realvertrag see real contract Recht zum Besitz 46" Rechtshandlung 49*', 68 Rechtsnachfolge 47, 48 reele overeenkomst see real contract refus = rejection 88 rei vindicatio (Roman law) 116, 116'°*, 189 reject, right to/rejection 107 rescission see avoidance reservation of ownership see retention of ownership reservation of title see retention of ownership • •[...]... act of transfer and frad/rio have taken place.' Making this distinction between 1 In English law the separate legal act of transfer may be called conveyance It is a legal term used in English land law 23 TRANSFER OF MOVABLES , p^ffiKfrrrn hn contract and transfer is in Germany referred to as the Trenwungsprmzip (the principle of distinction) Yet, in chapter 3 and 4 we shall see that the principle of. .. possessorium A transfer of possession in which the transferor remains in actual control of the thing The transferor turns his possessio into detenf/o holding the thing for the acquirer Defect of will A legally relevant shortcoming in the will of someone making a legal act, for example someone entering into a contract under the influence of mistake, fraud or duress Detenfio The holding of a thing for another,... the distinction that English law is not based on Roman law and the so-called learned law of the continent, the common legal 17 TRANSFER OF MOVABLES tradition that started in the Middle Ages when Justinian's Digest was rediscovered Often this divide between common law and civil law is seen as a complicating factor in harmonizing European private law Structure of the thesis ' , As to the structure of comparative... account the transferor's and transferee's protection against insolvency of the other party A suitable protection cannot be achieved simply by opting for a certain type of transfer system 5 Specificity, absolute effect and the concept of right i« re The two main principles of property law are the principle of specificity and the principle of absolute effect As we will see in this paragraph both principles... basis of legal science rules out literal interpretation, a form of interpretation that suffocates any attempt at creating new concepts Andreas von Tuhr and Martin Wolff ' K>W' ; r -.*r•; = :;; u u But even after having explained the predominance of German literature in the thesis the large amount of references to Andreas von Tuhr and Martin Wolff might surprise In the beginning of the 20th century Andreas... various transfer systems they entail are in fact no more than different starting points As a result of far-reaching exceptions to the principles involved the differences between the transfer systems are much smaller than the opposing starting-points would make one believe at first glance In addition, I will outline a few principles that can be found in a certain form and to a certain extent in the law of. .. laws True, Roman law has had an overwhelming influence on German law, especially since the so-called Historical School founded in the beginning of the 19th century It was a movement interested in the study of 'pure' Roman law, that is, Roman law of the classical era (the first two and a half centuries AD^) and of Justinian's time (6th c AD) As Justinian's Digests or Pandects formed one of the most important... Last in line is Dutch law (chapter 5), a legal system which has been influenced by French as well as German law In the beginning of the 19th century it was influenced mainly by the French Code GY>i7 and the French legal tradition From the second half of that century, however, the influence of German law became more and more important Accordingly the Dutch chapter had to be placed at the end On two points... i>&i};?*-fA f-.f , In German law a contract for the transfer of property cannot in itself bring about the passing of ownership (as is the case in for example English and French law* ) The tradition system makes a sharp distinction between on the one hand the underlying legal act or fact' that obliges to transfer ownership and on the other hand the subsequent legal act effectuating the transfer of ownership... examine in detail the three main types of transfer system: the consensual system, the causal tradition system and the abstract tradition system In doing so it will concentrate on the transfer of movable tangible things The subject of negotiable instruments will be left out So too will the creation of security rights by way of transfer and the transfer of equitable ownership in goods by declaration of ... The principle of priority and the principle of droif de suite The principle of publication and the closely related principle of the protection of third parties Transfer of movables in German law. .. between In English law the separate legal act of transfer may be called conveyance It is a legal term used in English land law 23 TRANSFER OF MOVABLES , p^ffiKfrrrn hn contract and transfer is in. .. opposing starting-points would make one believe at first glance In addition, I will outline a few principles that can be found in a certain form and to a certain extent in the law of property of