National Reports on the Transfer of Movables in Europe: Volume 4

Transcription

National Reports on the
Transfer of Movables in Europe
National Reports on the
Transfer of Movables in Europe
Volume 4:
France, Belgium, Bulgaria, Poland, Portugal
edited by
Wolfgang Faber / Brigitta Lurger
Schriften zur Europäischen Rechtswissenschaft /
European Legal Studies / Etudes juridiques européennes
Band 13 / Volume 13 / Volume 13
European Legal Studies Institute, Osnabrück
Molengraaff Institute for Private Law, Utrecht
Amsterdam Institute for Private Law
Institute of European and Comparative Law, Oxford
Institut für Zivilrecht, Ausländisches und Internationales Privatrecht, Graz
Schriften zur Europäischen Rechtswissenschaft /
European Legal Studies / Etudes juridiques européennes
herausgegeben
im European Legal Studies Institute, Osnabrück von Christian von Bar
im Molengraaff Institute for Private Law, Utrecht von Ewoud Hondius
im Amsterdam Institute for Private Law von Martijn W. Hesselink
im Institute of European and Comparative Law, Oxford von Stefan Vogenauer
im Institut für Zivilrecht, Ausländisches und Internationales Privatrecht, Graz
von Brigitta Lurger
Translation of the Polish report into English: Mariusz Bobiński,
Katarzyna Diehl, and Kamil Zaradkiewicz.
Linguistic revision and editorial support for all reports in this volume:
Susan-Gale Wintermuth.
The reports published in this volume and a linguistic revision of the whole
book are financed by the Fonds zur Förderung der wissenschaftlichen Forschung
(FWF), Vienna.
Publication of the whole series of national reports is supported by:
Swiss Institute of Comparative Law (Lausanne);
Bundesministerium für Wissenschaft und Forschung (Vienna);
Bundesministerium für Justiz (Vienna);
Land Salzburg;
Evers-Marcic-Stiftung an der Rechtswissenschaftlichen Fakultät der
Universität Salzburg.
ISBN (print) 978-3-86653-118-5
ISBN (eBook) 978-3-86653-922-8
The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.
© 2011 by sellier. european law publishers GmbH, Munich.
All rights reserved. No part of this publication may be reproduced, translated, stored in a
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Production: Karina Hack, Munich. Typesetting: fidus Publikations-Service GmbH, Nördlingen. Printing and binding: AZ Druck und Datentechnik GmbH, Kempten. Printed on
acid-free, non-ageing paper. Printed in Germany.
Preface
This is the fourth volume of a series of national reports on basic issues concerning the acquisition and loss of ownership of movable assets. This fourth
volume covers a number of (but not all) jurisdictions applying a ‘consensual
transfer model’, many of them in the tradition of the French Code civil.
The full series covers 28 European legal systems, distributed over six
volumes and appears as a by-product of the research activities of the Graz &
Salzburg working group on ‘Transfer of Movables’ within the ‘Study Group
on a European Civil Code’,1 which was in charge of preparing Book VIII of
the Draft Common Frame of Reference (DCFR).2
Starting with general property law issues, like the concepts of ownership
and possession employed in the respective legal systems and the related
means of protection, the reports primarily deal with the ‘derivative’ transfer of ownership, but extend to good faith acquisition from a non-owner,
acquisitive prescription, processing and commingling, and to further related
issues. Corresponding to the working group’s task within the Study Group,
the reports are generally restricted to movable assets and basically leave
aside fiduciary transfers, such as transfers for security purposes. After all,
they do, however, not only cover mere property law issues, but also much of
the related law of obligations, enforcement and insolvency – in a generally
accessible language, i.e. English.3
Publishing the whole series of national reports would not be possible
without generous support by a number of institutions. Financial support is
granted by the Swiss Institute of Comparative Law (Lausanne), the Austrian Ministry of Science and Research (Bundesministerium für Wissenschaft
und Forschung), the Austrian Ministry of Justice (Bundesministerium für
Justiz), the Land Salzburg and the Evers-Marcic-Stiftung an der Rechtswis1
2
3
For further information on this project, see Lurger, Introduction to the Project
‘Transfer of Movables’: Organisational Framework, Basic Issues and Goals, in: Faber /
Lurger (eds.), Rules for the Transfer of Movables – A Candidate for European Harmonisation or National Reforms? (2008), 1.
Published in von Bar / Clive (eds.), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR) Full Edition (2009),
Volume V. Book VIII is entitled ‘Acquisition and loss of ownership of goods’.
The concept of these reports is further described in the preface to the first volume
of that series: Faber / Lurger (eds.), National Reports on the Transfer of Movables in
Europe – Volume I: Austria, Estonia, Italy, Slovenia (2008).
vi
Preface
senschaftlichen Fakultät der Universität Salzburg. The reports as such as
well as a linguistic revision of the whole book are financed by the Austrian
Funds for Scientific Research (Fonds zur Förderung der wissenschaftlichen
Forschung, FWF). The editors wish to express their gratitude to all these
institutions.
We also wish to thank Mrs Monika Lammer for formatting the manuscripts. The national report for Poland, originally written mainly in Polish,
was translated into English by Mariusz Bobiński, Katarzyna Diehl, and Kamil Zaradkiewicz. Particular thanks go to Susan-Gale Wintermuth who
bestowed great care on linguistically improving all reports and harmonising
the terminology used.
March 2010
Salzburg and Graz
Wolfgang Faber
Brigitta Lurger
List of Contributors
José Caramelo-Gomes
Professor of European Law, Universidade Lusíada, Porto
Eleanor Cashin Ritaine
Director of the Swiss Institute of Comparative Law, Lausanne
Caroline Cauffman
Assistant professor at the universities of Antwerp and Maastricht,
attorney
José Carlos de Medeiros Nóbrega
Legal researcher at the European Legal Studies Institute,
University of Osnabrück
Jerzy Pisuliński
Professor of Civil Law, Jagiellonian University in Cracow,
Member of the Polish Codification Commission for Civil Law
Vincent Sagaert
Professor at the University of Leuven, Department of Private Law,
Professor of Property Law at the University of Antwerp,
Attorney at the Brussels Bar
Dimitar Stoimenov
Lawyer at Peterka & Partners Law Firm, Sofia
Kamil Zaradkiewicz
Adjunct professor at the Department of Civil Law,
University of Warsaw; Director of the Department of Jurisprudence and
Studies in the Office of the Constitutional Tribunal of Poland
Contents
Preface
List of Contributors
v
vii
National Report on the Transfer of Movables
in France
1
in Belgium
Caroline Cauffman / Vincent Sagaert
189
in Bulgaria
Dimitar Stoimenov
353
in Poland
Jerzy Pisuliński / Kamil Zaradkiewicz
467
in Portugal
José Caramelo-Gomes/ José Carlos de Medeiros Nóbrega
581
in France
Table of Contents
Preliminary remarks
9
Part I:
Basic information on property law
1. Notion of ownership and different property rights in French law
1.1. General basics
1.1.1. Characteristics of rights in rem in contrast
to obligations
(a) The French “law of goods”
(b) Movables and immovables
(c)Rights in rem and obligations
(d) Other rights
(e) Consequences of these distinctions
1.1.2. The French numerus clausus of property rights
1.1.3. Other general principles of property law
1.1.4. Where are the rules on property law
(on movables) to be found? 1.2. Notion of ownership
1.2.1. Definitions and characteristics
(a)Definitions
(b) Characteristics of ownership rights
(i) The absolute effect
(ii) The exclusive characteristic
(iii) The perpetual characteristic
1.2.2. Interests linked to the right of ownership
1.3. Other property rights in movables
1.4. The protection of property rights
1.4.1.Actions
(a) Actions with respect to ownership rights
(b) Other means of protection
1.4.2. Remedies 1.5. Transferability of movable assets
11
11
11
14
17
19
20
23
26
28
29
29
29
31
32
33
34
36
39
39
39
41
44
46
46
4
France
2. Possession
2.1. Notion of possession
2.1.1. Definitions
2.1.2. Limits to possession
2.1.3. Components of possession
2.1.4. Presumptions with respect to possession
2.1.5. Types of possession
2.2. Functions of possession
2.3. Acquisition of possession
2.4. Protection of possession
2.5. Self-help
52
52
53
54
56
57
60
63
65
67
3. Nature of the various rights to hold or to acquire a movable
3.1. The right to hold a movable
3.2. The right to acquire a movable
67
70
4. Rules relevant to the transfer of movables
4.1. Field of application
4.2. Definitions
70
71
Part II:
Derivative acquisition
5. System of transfer
5.1. Basic characteristics and overview
5.1.1. The “unititular” or “uniform” concept of the
transfer of ownership
5.1.2. Are the same rules applicable to all kinds of
obligations?
5.1.3. Short overview of the basic transfer requirements
(a) Legal requirements for the transfer
(b) Legal nature of the transfer
(c) Limits of the solo consensu principle
5.2. General issues
5.2.1. Specific goods – generic goods
5.2.2. The role of party autonomy and its relationship
to third party interests
(a) The limits of party autonomy
(b) Protection of third parties
5.2.3. Problems, inconsistencies, critique
75
75
78
79
80
82
86
90
90
92
94
94
96
Table of Contents
5.3.
5.4.
5.5.
5.6.
5.7.
5.8.
5.9.
Valid obligation (causal or abstract system)
5.3.1. The kinds of obligations underlying the transfer
of ownership
5.3.2. Validity of the obligation – different forms of
defects regarding the obligation and their effects
on the transfer of ownership
Traditio
Registration
Consensual system
Real agreement
Payment
Right to dispose
5
97
97
98
99
100
100
103
103
104
6. Rules for double and multiple selling
7. Which are the rules for selling in a chain?
7.1. General rules, valid contracts
7.2. Rules when contracts fail
105
106
8. Transfer or acquisition by means of indirect representation
9. Consequences in the case of insolvency of one
of the parties involved
9.1. General issues
9.2. Insolvency of the transferor
9.3. Insolvency of the transferee
108
109
110
10. Passing of risk and passing of ownership
Part III:
Original acquisition
11. Types of original acquisition
11.1. Accession of movables
11.2. Commixture and confusion
11.3. Specification and processing
11.4. Further general aspects
114
115
117
117
12. Rules of good faith acquisition (acquisition a non domino)
12.2. Good faith acquisition only for value?
119
121
France
6
12.3. Possession or physical control by the transferor “B”
12.4. Physical control or possession by the acquirer “C”
12.5. Specific requirements with respect to the circumstances
of the “transfer”
12.6. Specific requirements regarding the way the original
owner “A” lost the movable
12.7. Good faith requirements
12.8. Treatment of lost or stolen goods
12.9. Right of the original owner A to buy back the asset
from the good faith acquirer C?
12.10. Rules on good faith acquisition free of encumbrances
13. Rules for “acquisitive” prescription of movable property
13.1. Functions of acquisitive prescription
13.2. Requirements for acquisitive prescription
13.2.1. Assets that can be acquired
13.2.2. Role of possession
13.2.3. Role of good faith
13.2.4. Prescription periods
13.2.5. Extent of the acquisition
13.3. Prescription of ownership
121
122
123
124
124
125
128
128
129
131
131
132
134
134
137
137
14. Other forms of original acquisition
Part IV:
Additional questions
15. Rules for the reservation of title
15.1. Notion and conditions
15.2. Effects
141
146
16. Abandonment: further ways of losing ownership
17. Transfer rules for “co-ownership”
17.1. Forms of co-ownership
17.1.1. Simple undivided ownership
17.1.2. Special forms of co-ownership
17.2. Rules on transfer
17.3. Separation and termination of co-ownership
150
151
153
154
154
Table of Contents
18. Further rules applying to unspecified goods
18.1. Transfer of shares in an identified bulk
18.2. Floating charge
19. Consequences of restitution of the movable to the owner
19.1. Entitlement to benefits resulting from the movable
19.2. Loss and deterioration of the movable
19.3. Reimbursement for improvements and expenses
incurred during the possession of the movable
19.4. Possessor’s right to retain the movable
19.5. Who bears the expenses of the restitution
of the movable to the owner?
7
156
156
161
163
165
165
171
Table of Literature
172
Table of Abbreviations
186
Preliminary remarks
The present study of the transfer of movable property in French law follows
as closely as possible the suggested format for this series. Considerable effort
was made to follow the questionnaire, and in particular to take into account
German or Austrian legal thinking, despite the fact that the French legal
system does not easily fit into this predefined model.
A number of topics in the suggested format simply do not occur in
French law. This can be explained by the fact that the French Civil Code
greatly simplified the rules on transfer of property and did not adhere to
the abstract model applicable elsewhere on the continent. Furthermore, a
lot of the questions posed by the suggested topics can be answered by using
the general principles presented in the first part. Nevertheless, to enable
a comparison between the different European legal systems, the study has
kept to the original structure suggested, even though the final result may
seem somewhat imbalanced.
The question of transfer of movable property, as such, is not a topic
that is covered extensively by French legal literature. Until recently, most
authors generally considered that this was a minor legal item, as transfer of
property occurs automatically in most cases. References given in this study
refer, therefore, to the most common and accessible academic sources, even
though their content on this specific theme is often very limited.
A lot of attention has been given to providing references (in footnotes)
that are as complete as possible, specifically, reference to recent articles and
doctoral theses that may allow the reader to carry out further research into
this topic. It is also essential to be aware of the fact that there have been
very many legislative changes in the field of property law over the 2004
to 2009 period. As a result, many provisions of the Civil Code have been
modified or have received a new numbering. For the sake of clarity and
to enable the use of older sources, the old numbering is also given in the
present study, either in the footnotes or in brackets.
Most French legal concepts are included in brackets so as to avoid any
distortion due to translation. Translations provided in this paper have been
made by the author or extracted from the official government website (www.
legifrance.gouv.fr), with, however, some changes whenever the accuracy of
the translation could be challenged.
This study concentrates exclusively on movable property. Immovable
property and its legal regime are not covered by this report, except when
concepts are applied by analogy to movable property.
10
France
A special note must be made regarding legal terminology: unless specified otherwise, the terms “ownership” and “property” are used as synonyms
throughout the report as are the terms “things”, “assets”, “goods” and “objects”, even though the term “assets” shall be preferred in most occurrences.
In addition, the term “possession” is used to define simple physical holding
or stricto sensu, in the technical meaning of the legal institute. Finally, this
text uses the generic “he / his” instead of “he / she” or “his / her” without any
intent to discriminate.
This study is up to date as of May 2009.1
1
In particular, the loi n° 2008-561 du 17 juin 2008 portant réforme de la prescription en
matière civile (in force as of 19th of June 2008) has been taken into account. This law
has greatly changed the numbering of the Civil Code.
Part I:
1.
Notion of ownership and different property
rights in French law
1.1.
General basics
1.1.1. Characteristics of rights in rem in contrast to obligations
(a)
The French “law of goods”
Rules on property rights and ownership are part of the so-called law of goods
(droit des biens),2 which deals with the various legal distinctions between
different types of assets3 and with the ways assets can be used.4
French statutory law does not define “goods”.5 However, the new law
on prescription of June 17, 20086, has replaced the formula “le domaine
2
3
4
5
Bergel J.-L., Bruschi M., Cimamoni S., Traité de Droit civil, Les Biens, sous la
direction de J. Ghestin, LGDJ 2000. – Terré F., Simler Ph., Droit civil, Les Biens,
Dalloz, 7e éd. 2006. – Chabas F., Leçons de droit civil, Biens, Droit de propriété et
ses démembrements, Montchrestien, 8e éd. 1994. – Atias Ch., Droit civil, Les biens,
Litec, 8e éd. 2005. – Zenati-Castaing F., Revet Th., Les biens, PUF Coll. Droit fondamental, 3e éd. 2008. – Cornu G., Droit civil – Les biens, Montchrestien, 13e éd.
2007. – See also, Loiseau G., Pour un droit des choses, D. 2006, chr. p. 3015. –
Danos F., Propriété, possession et opposabilité, préf. L. Aynès, Economica 2007,
534 pages. – Aynès L., Property Law, in Bermann G., Picard E. (eds.), Introduction
to French Law, Kluwer Law International 2008, pp. 147-169.
As opposed to « things » (choses). See, Loiseau G., Pour un droit des choses, D. 2006,
chr. p. 3015 proposing the creation of a law of things (droit des choses), which would
include things that cannot be treated as legal goods because they cannot be “owned”
such as: res communis, the human body … However, Strickler Y., Droit des biens,
évitons la dispersion, D. 2007, p. 1149.
Voirin P., Goubeaux G., Droit civil, Personnes, Famille, Incapacités, Biens, Obligations, Sûretés, Tome 1, LGDJ, 31e éd. 2007, p. 261, n° 584. – Revet Th., Le code civil
et le régime des biens: questions pour un bicentenaire, Dr. et patr., mars 2004, p. 20.
See Baudry-Lacantinerie et Chauveau, Traité théorique et pratique du droit civil.
Des biens, 1e éd. 1896, p. 10, n° 10: « toutes les choses qui, pouvant procurer à l’homme
une certaine utilité, sont susceptibles d’appropriation privée ». – David A., Les biens et
France
12
des choses” (i.e. “the field of assets”) by “les biens et les droits” (i.e. “assets
and rights”), in article 2260 of the Civil Code (former C. civ., art. 2226).
The new law therefore does not pertain to “things”, but to “assets” and
“rights”, however most academic writings prior to 2007 use the former term
of “things” (les choses). Legal scholars and court decisions have defined the
scope of property law essentially in relation to assets.7 “Assets”,8 in the legal
sense, are considered to be rights that have an economic value9 and can be
6
6
7
8
9
leur évolution, Archives phil. du droit, 1963, 165 (166). – Battifol H., Problèmes
contemporains de la notion de biens, in, Les biens et les choses en droit, Archives phil.
du droit, t. 24, 1979, p. 9. – Revet Th., Les nouveaux biens, in La propriété, Travaux
de l’Association H. Capitant, SLC 2006, p. 271. – Berlioz P., La notion de bien,
LGDJ, Bibliothèque de droit privé, tome 489, 2007, préface Aynès L., p. 19-21. –
See, Zenati-Castaing F., Revet Th., Les biens, p. 21, n° 2: « Constitue […] un bien
toute entité identifiable et isolable, pourvue d’utilités et objet d’un rapport d’exclusivité ». –
Revet Th., Le code civil et le régime des biens: questions pour un bicentenaire,
Dr. et patr., mars 2004, p. 20. – Libchaber R., La recodification du droit des biens,
in Le Code civil 1804-2004, Livre du bicentenaire, Dalloz-Litec 2004, 297. – Comp.
Dufour A., Notion et division des choses en droit germanique, Arch. phil. du droit
1979, p. 95-125 (107).
Loi n° 2008-561 du 17 juin 2008 portant réforme de la prescription en matière civile (in
force as of 19th of June 2008).
Terré F., Variation de sociologie juridique sur les biens, in Les biens et les choses en
droit, Arch. phil. du droit, 1979, p. 17. – Yet, Grzegorczyk, Le concept de bien juridique: l’impossible définition, in Les biens et les choses en droit, Arch. phil. du droit,
1979, p. 259. – Also, Berlioz P., La notion de bien, LGDJ, Bibliothèque de droit
privé, tome 489, 2007, préface Aynès L., p. 22, n° 52. – See, Zenati-Castaing F.,
Revet Th., Les biens, PUF Coll. Droit fondamental, 3e éd. 2008, p. 21, n° 3: property
rights are not goods because they are the mechanism that allow assets (les choses) to
be goods (les biens). – Zenati-Castaing F., La propriété, mécanisme fondamental
du droit, RTD civ. 2006, p. 445-465 (448). – Libchaber R., La recodification du
droit des biens, in Le Code civil 1804-2004, Livre du bicentenaire, Dalloz-Litec 2004,
297, 324 seq.
See also the new legal concept of “produit” as a product of human activity: ZenatiCastaing F., Revet Th., Les biens, p. 30 n° 8 and André Ch., La cohérence de la
notion de produit, RRJ, 2003-2, p. 751. – Mainguy D., Réflexions sur la notion de
produit en droit des affaires, RTD com. 1999, p. 47. – The 1998 law on the liability
for products (Loi n° 98-389 du 19 mai 1998 sur la responsabilité du fait des produits
défectueux) is also a good example of the change in terminology, whereas the Civil
Code still uses the word chose, as a liability factor (C. civ., art. 1384, al. 1).
See however, Chilstein D., Les biens à valeur vénale negative, RTD civ. 2006,
p. 663. – Comp., Labbée X., La valeur des choses sacrées ou le prix des restes mortels,
D. 2005, chr. 930. – Piedelièvre S., Le matériel et l’immatériel, Essai d’approche de
1. Notion of ownership and different property
13
“owned”,10 whether they relate to corporeals or incorporeals.11 This means,
in particular, that incorporeals, such as the right in personam held by a creditor against his debtor, fall into this category.12 In other terms, in French
law, both corporeal and incorporeal assets13 can be the object of ownership
rights.14 On the other hand, so-called personality rights (droits de la personnalité) cannot be owned and are not considered assets in the legal sense.15
Some confusing statements can be found in French legal literature on
the distinction between “goods” (i.e. “assets”) and “rights”. Some authors
consider that goods / assets are things, not rights.16 However, like Frédéric
Zenati-Castaing, one should consider that “rights” are a type of “assets” of a
specific nature,17 whereas “assets” are only the legal “perception” of things.
10
11
12
13
14
15
16
17
la notion de bien, in Aspects du droit privé à la fin du XXe siècle, Mél. Michel de Juglart,
Montchrestien 1986, p. 55: limiting the definition of goods to everything that has
a monetary value. – Mousseron J.-M., Valeurs, biens, droits, in Mél. Breton A. et
Derrida F., Dalloz 1991, p. 277 (279) who adds the faculty to circulate (commercialisation) the asset.
See, Zenati-Castaing F., Revet Th., Les biens, p. 18, n° 2: «Les biens sont les choses
dont l’utilité justifie l’appropriation». And p. 28, n° 8: «Les choses sont tout ce que l’on
peut possèder, les biens sont ce que l’on possède». – Critizing, Berlioz P., La notion de
bien, LGDJ, Bibliothèque de droit privé, tome 489, 2007, préface Aynès L., p. 151-203.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 1, n° 1. – Catala P.,
L’immatériel et la propriété, in Le droit et l’immatériel, Archives phil. du droit, t. 43,
1999, p. 61.
See infra in this section the discussion on the ownership of a claim.
Piedelièvre S., Le matériel et l’immatériel, Essai d’approche de la notion de bien,
in Aspects du droit privé à la fin du XXe siècle, Mél. Michel de Juglart, Montchrestien
1986, p. 55. – Mousseron J.-M., Valeurs, biens, droits, in Mél. Breton A. et Derrida
F., Dalloz 1991, p. 277.
In recent years, ownership rights have been recognized on a credit card number
(Cass. crim., 14 nov. 2000: Bull. crim., n° 338; D. 2001, 1423, note B. de Lamy; RTD
com. 2001, 526, obs. Bouloc) and on information (Cass. crim., 12 janv. 1989: Bull.
crim., n° 14; Gaz. Pal. 1989, 2, somm. 283). – Also, Cons. const., déc. 2006-540 DC,
27 juillet 2006: RTD civ. 2006, 791, obs. Revet recognizing that intellectual property
rights are ownership rights and protected as such.
See however, Revet Th., La propriété de la personnalité, Gaz. Pal. 2007, n° 139,
p. 49 and Zenati-Castaing F., Revet Th., Les biens, p. 30-31.
Gardies J.-L., La chose et le droit sur la chose dans la doctrine du droit de Kant,
Arch. phil. du droit 1979, p. 139-149 (143). – Villey M., Les biens et les choses,
préface historique, Arch. phil. du droit 1979, p. 1-7 (2).
Zenati-Castaing F., Revet Th., Les biens, p. 33 n° 8, see also p. 50, n° 13: « si
tous les biens sont des choses, toutes les choses ne sont pas des biens, du fait qu’il existe
des choses qui n’ont pas de propriétaire »; and p. 132, n° 84: « Il faut se faire à l’idée que
France
14
(b)
Movables and immovables
Article 516 of the French Civil Code18 declares that all assets are either
movable or immovable and must therefore belong to either of these two
categories in French law.19 French law defines clearly and in a positive way
the class of immovables (C. civ., art. 517 to art. 526). By comparison,
movables are, in general, only defined negatively as a residual class. If an
asset is not immovable, it is necessarily movable.20
As a rule, an asset will be considered immovable if it does not move
and cannot be moved.21 Yet certain movable assets have a status similar
to immovable assets because of their great value, even though they can be
moved. This applies, for example, to airplanes22 and ships.23 Additionally,
the law sometimes determines the nature of an asset by way of statute. This
18
19
20
21
22
23
tous les biens ne sont pas des droits et qu’avoir un bien, ce n’est pas nécessairement avoir
un droit ». – Yet Libchaber R., La recodification du droit des biens, in Le Code civil
1804-2004, Livre du bicentenaire, Dalloz-Litec 2004, p. 297 (313): « les droits ne sont
pas des biens; ils ne font l’objet d’aucune appropriation, mais d’une simple titularité. »
C. civ., art. 516: All goods are movable or immovable. – Terré F., Meubles et immeubles, in Le discours et le code. Portalis, deux siècles après le Code Napoléon, Litec,
Jurisclasseur 2004, p. 279. – Périnet-Marquet H., L’immeuble et le Code civil, in
Le Code civil, un passé, un présent, un avenir, Dalloz 2004, p. 395.
Monier R., La date d’apparition du dominum et de la distinction des res en corporales et incorporales, Studi S. Solazzi, Naples 1948, 357. – Périnet-Marquet H.,
L’évolution de la distinction entre meubles et immeubles depuis le Code civil, in
Etudes Béguin, Litec 2005, p. 642. – Critisizing this distinction: Zenati-Castaing
F., Revet Th., Les biens, p. 42, n° 10: « la division générale des biens en immeubles et
immeubles […] ne saurait demeurer la summa divisio dans un univers des richesses dominé
par les choses immatérielles et créées », also at p. 155, n° 98.
See infra 4.2: Definitions of movables.
Voirin P., Goubeaux G., Droit civil, p. 261, n° 586. – Zenati-Castaing F., Revet
Th., Les biens, p. 145, n° 88.
C. de l’aviation civile, article L 121-11: “Les aéronefs constituent des biens meubles pour
l’application des règles posées par le code civil. Toutefois, la cession de propriété doit être
constatée par écrit et ne produit d’effet à l’égard des tiers que par l’inscription au registre
d’immatriculation. Toute mutation de propriété par décès et tout jugement translatif, constitutif ou déclaratif de propriété doivent être inscrits sur le registre à la requête du nouveau
propriétaire.” Yet it is possible to mortgage an airplane: C. de l’aviation civile, art. L
122-1 seq. – Let it be stressed, that as a general rule, movables cannot be mortgaged.
Jambu-Merlin R., Le navire, hybride de meuble ou d’immeuble?, in Etudes Flour,
Défrenois 1979, p. 305. – See also C. des douanes, article 241 where it is possible to
mortgage a ship.
15
is the case when a movable is attached to an immovable in such a way that
it forms a single combination.24
Three criteria are applied to define an immovable. The first criterion is
purely physical and defines immovables by nature (immeubles par nature):
it results from an attachment (incorporation)25 to the surface of the Earth,
to a portion of ground or from a physical link to the ground (stones of a
house or a tree planted in the ground).26 The second criterion results from
a fiction: a corporeal asset is deemed to be immovable if it is accessory to
an immovable asset (immeuble par destination).27 The third criterion applies
to incorporeal rights: rights are considered to be immovable if they apply
to an immovable, corporeal asset.28
Assets are considered to be movable if they can be moved. Notwithstanding this physical criterion, certain goods are deemed to be movable
either because they do not fall into the category of immovable assets, or
because their nature has been determined by statute (C. civ., art. 527-536).
Specifically, animals are movables.29
The same status applies to claims (C. civ., art. 529),30 to security rights
relating to movables (usufruct rights, pledges, mortgage rights),31 to actions
24
25
26
27
28
29
30
31
See hereafter the concept of « immeuble par destination ».
Req., 15 déc. 1857: DP 1859, I, 366. – Civ., 19 avr. 1864: D. 1864, 1, 178. – Cass.
com., 1er juin 1974: D. 1974, inf. rap. 209.
C. civ., art. 518 to art. 523. – Bergel J.-L., Bruschi M., Cimamoni S., Les biens,
p. 13, n° 14.
C. civ., art. 524 and art. 525. – Bergel J.-L., Bruschi M., Cimamoni S., Les biens,
p. 14, n° 15.
C. civ., art. 526. – Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 22, n° 21.
Sohm-Bourgeois, A.-M., La personnification de l’animal: une tentation à repousser,
D. 1990, 33. – Burgat F., Res nullius, l’animal est objet d’appropriation, Arch. phil.
du droit, tome 38, 1994, 279, (286). – Antoine S., Le droit de l’animal, évolution
et perspectives: D. 1996, chr. 126. – Libchaber R., Perspectives sur la situation juridique de l’animal, RTD civ. 2001, 239. – Antoine S., L’animal et le droit des biens,
D. 2003, 2651. – Farjat G., Entre les personnes et les choses, les centres d’intérêt,
RTD civ. 2002, p. 221.
Emerich Y., La propriété des créances: approche comparative, préf. Zenati-Castaing,
LGDJ, Bibl. dr. privé, t. 469, 2007. – Krief-Sémitko C., De l’action paulienne ou de
la propriété des créances, droit de propriété sur une valeur (essai d’une théorie de la
valeur en droit civil français) (suite), RRJ 2004-2, 789. – Also, (Krief-) Verbaere
C., Essai d’une théorie générale de la notion de valeur, application au droit de rétention, RRJ 1999-3, p. 685.
Rabeau A., L’usufruit des droits sociaux, Litec, Bibl. dr. de l’entreprise, 2006, p. 22,
n° 17. – Libchaber R., L’usufruit des créances existe-t-il?, RTD civ. 1997, p. 615.
16
France
relating to movables (action en revendication d’un bien meuble),32 to business
property (fonds de commerce), to intellectual property rights lato sensu (clienteles and copyright), and to securities, stocks and shares (valeurs mobilières).
In French law, it is not possible for parties to a contract to determine the
movable or immovable nature of an asset.33 This is of practical importance
because the principles applicable to movable and immovable property
sometimes differ, notably in respect to rules on transfer of ownership. Nevertheless, the nature of property can vary over time. In particular, during
their lifetimes, movables can be attached to an immovable and thus take
on an immovable nature through incorporation (immeuble par nature)34 or
intention (immeuble par destination).35 On the other hand, an immovable
can become movable if it is to be separated from its immovable support
(meuble par anticipation).36
Both movable and immovable assets can be corporeal or incorporeal.37
In the latter case, the “assets” are actually simple rights (C. civ., art. 529).38
In general, rights relating to an object take on the nature of the object.
32
33
34
35
36
37
See infra 1.4.1. (a): Actions in respect to ownership rights.
For example, the fact that a seller of a veranda (movable good) benefits from a reservation of title until complete payment does not prevent this veranda to become
immovable when it is added to a house (immeuble par destination). Civ. 3e, 26 juin
1991: Bull. civ. III, n° 197, p. 115; JCP 1992, II, 21825, note Barbiéri; RTD civ. 1992,
144, note Zenati; D 1993, 93, note Freij-Dalloz: « La nature, immobilière ou mobilière,
d’un bien est définie par la loi et la convention des parties ne peut avoir d’incidence à cet
égard ». – See critics by Zenati-Castaing F., Revet Th., Les biens, p. 159, n° 99. –
Mestrot M., Le rôle de la volonté dans la distinction des biens meubles et immeubles, RRJ 1995-1, 809. – See also the opposite position of the Commercial chamber:
Cass. com., 2 mars 1999, Bull. civ. IV, n° 50; Dr. affaires 1999, 597, obs. A. L.; RTD
civ. 1999, 442, obs. Crocq; JCP 1999, II, 10180, note Cutajar. And, Cass. 3e civ. 29
mars 2006: D. 2006, 1166, obs. Lienhard; RTD civ. 2006, 351, obs. Revet.
See for example, Immeuble et le droit, Mélanges à la mémoire du Pr Roger SaintAlary, Presses universitaires des sciences sociales, Toulouse 2006.
Voirin P., Goubeaux G., Droit civil, p. 262, n° 588 seq.
Cass. ass. plén., 15 avril 1988: Bull. civ. R., p. 198: frescos that are immovable by
nature become movable if they are removed from the wall they were painted on. –
Larroumet Ch., La publicité des contrats de fortage et la mobilisation par anticipation, Mel. Colomer, Litec 1993, p. 209. – Also, CJCE, 7 déc. 2004, aff. C-1 / 03:
RDI, 2005, p. 31, note Trébulle; D. 2005, p. 2352, note Reboul-Maupin in a case of
pollution to a field.
CEDH, 23 fevr. 1995, Gasus Dosier und Fördertechnik, A 306-B, § 53: “The Court
recalls that the notion “possessions” (in French: biens) in Article 1 of Protocol No.
1 (P1-1) has an autonomous meaning which is certainly not limited to ownership
of physical goods: certain other rights and interests constituting assets can also be
17
Therefore, rights relating to an immovable are immovable (C. civ., art. 516
and 526),39 and rights to a movable are considered to be movable (C. civ.,
art. 527). As a result, except for rights pertaining to immovables (i.e. rights
to the ownership of an immovable), all rights are movables.
38
(c)
Rights in rem and obligations
Classic French law describes two legal techniques for the use of assets. It
explains to whom assets or an interest therein belongs and the scope of
this right.
On the one hand, an object, or some of its benefits, can be reserved
for the direct use of one or more persons. On the other hand, a person can
entitle another person to use the object. This distinction generates a dual
classification between rights in rem (droits réels) and rights in personam (obligations – droits personnels). Both rights are subjective rights as they confer
a legal power upon an individual person.
The sole function of rights in rem is to distribute the uses of objects
among persons.40 Obligations, on the other hand, have many functions:
they can be used to distribute the uses of objects among persons, but can also entitle someone to demand a service or a payment from another person.
All French property law is founded on this distinction.41 Yet this distinction does not encompass all rights.42
38
39
40
41
42
regarded as “property rights”, and thus as “possessions”, for the purposes of this provision (P1-1).” – Zenati-Castaing F., Revet Th., Les biens, p. 91, n° 45.
The Commission on the Reform of the Code civil had suggested distinguishing
between corporeal and incorporeal rights and not between movable and immovable assets. Article 1 of the project stated that « all assets are corporeal or incorporeal »
The distinction between movable and immovable assets thus would have become
secondary (Travaux de la Commission de réforme du Code civil, 1946-1947: Sirey,
1948, p. 781 et s.). – Gutmann D., Du matériel et de l’immateriel dans le droit des
biens, in Le droit et l’immatériel Arch. phil. du droit, t. 43, 1999, p. 65. – Martin D.,
Du corporel, D. 2004, Chron. 2285. – Savouret E.-M., Droit des biens incorporels.
Incorporels: vers une adaptation de notre droit?, D. Affaires 1997, 750.
Such as usufruct rights.
Atias Ch., Droit civil, Les biens, Litec, 8e éd. 2005, p. 1, n° 2.
This distinction has been largely criticized by Planiol M. (Traité élémentaire de
droit civil, 1e éd. 1897, 4e éd. 1906, n° 2159 seq.) who developed the notion of a
universal passiv obligation (l’obligation passive universelle).
Some personal rights don’t have a passiv subject: right to a name, right to honour,
right to freedom, right to live … The same situation arises for intellectual property
rights.
18
France
Rights in rem (droit réel or jus in re) are rights that are linked directly to
an asset (res).43 They represent the power that a person has in regard to this
asset. This person is the only party to this legal relationship.44 The main
example of a right in rem is the right of ownership. The right of ownership45
is the fullest right in rem, as it encompasses all other rights.46
Rights in rem have an active subject (the creditor) and an object (the
asset).47 This right gives the owner of the right direct and immediate power
over the object of the right. Rights in rem are recognized only in respect of
existing assets.48
Possession as such is not a right in rem,49 but reflects a factual situation
that has legal effects.
Obligations (droit personnel or jus in personam or obligation) represent the
right given to a person (the creditor) to demand a service or a payment from
another person (the debtor).50 An obligation is a legal tie between or among
persons. The main example of an obligation is the promise to deliver goods.
The creditor has an indirect right to the debtor’s patrimony. This means
that if the debtor does not fulfil his promise, the creditor can seize assets
belonging to the debtor (droit de gage general des créanciers – C. civ., article
2285).51 There are specific procedures for enforcing these claims.52
43
44
45
46
47
48
49
50
51
Libchaber R., La recodification du droit des biens, in Le Code civil 1804-2004, Livre
du bicentenaire, Dalloz-Litec 2004, 297, 350 seq.
Atias Ch., Les biens, p. 2, n° 3.
Zenati-Castaing F., La propriété, mécanisme fondamental du droit, RTD civ. 2006,
p. 445-465.
Atias Ch., Les biens, p. 53, n° 75. – See however the medieval confusion between
dominium and jus, where ownership becomes an asset: Zenati-Castaing F., Revet
Th., Les biens, p. 131, n° 83. – Gardies J.-L., La chose et le droit sur la chose dans
la doctrine du droit de Kant, Arch. phil. du droit 1979, p. 139-149 (143).
Atias Ch., Les biens, p. 46, n° 69.
Atias Ch., Les biens, p. 51, n° 72-73.
See Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 146, n° 134 and, p. 143,
n° 129: « La possession n’est pas actuellement un véritable droit subjectif. (…) On peut
néanmoins avancer que la possession, si elle est à l’origine un fait, tend à se cristalliser en
un droit par la volonté du possesseur. On dira qu’il s’agit d’une situation volontaire, légitime
ou illégitime, juridiquement protégée qui constitue, selon les cas, l’anticipation ou la preuve
d’un droit ».
Atias Ch., Les biens, p. 59, n° 85. – See however the analogy at Zenati-Castaing
F., Revet Th., Les biens, p. 93, n° 46: « Le droit et l’obligation étant corrélatifs, on peut
rechercher dans tout droit incorporel un rapport d’obligation lato sensu ».
C. civ., art 2285 (former C. civ., article 2093): The assets of a debtor are the common
pledge of his creditors; and the proceeds of them shall be distributed among them
pro rata, unless there are lawful causes of priority between the creditors.
19
Obligations have an active subject (the creditor), a passive subject (the
debtor) and an object (the service promised). The creditor can assign the
claim53 and thus impose a new creditor upon the debtor, whereas the debtor
cannot substitute another debtor for himself.
52
(d)
Other rights
In addition to rights in movables and rights in immovables, a third category
of rights54 has been developed over the last decades: the so-called intellectual rights (droits intellectuels).55 These rights arise neither in respect of an
object nor against a person.56 They have an incorporeal scope relating to
the intellectual work of their holders.57 They entitle the holder to conduct
his creative activity and make a living out of it. These rights have as their
object either an intellectual creation58 or a clientele.59 An example of such
52
53
54
55
56
57
58
Loi n° 91-650 du 9 juillet 1991 (Loi portant réforme des procédures civiles d’exécution)
reforming civil enforcement proceedings.
Claims are thus movables (C. civ., art. 529 C. civ.) that can be possessed, vindicated
or transferred (C. civ., art. 1240 and 1690).
Some authors also categorize rights such as company rights (droits sociaux) which
are neither claims or real rights and monopoly rights: see Zenati-Castaing F., Revet Th., Les biens, p. 95, n° 49 and 50. – And also the new category of environmental rights: Strickler Y., Droit des biens, évitons la dispersion, D. 2007, p. 1149.
Dabin J., Les droits intellectuels comme catégorie juridique, Rev. crit. 1939,
p. 413. – Cass. crim. 22 sept. 2004: D. 2005. p. 411, note B. de Lamy et p. 961, obs.
J. Raynard; AJ Pénal 2005, p. 22, obs. J. Leblois-Happe; RTD civ. 2005, chr. p. 164,
obs. Revet. – Caron C., Du droit des biens en tant que droit commun de la propriété
intellectuelle, JCP 2004, I, 162. – Bictin N., Les biens intellectuels: contribution à
l’étude des choses, Com. comm. électr., n° 6, juin 2006, étude 14.
Comp. Libchaber R., La recodification du droit des biens, in Le Code civil 18042004, Livre du bicentenaire, Dalloz-Litec 2004, 297 (312).
To shortlist a few (see, Zenati-Castaing F., Revet Th., Les biens, p. 99, n° 53 also
at p. 113, n° 65): works of art, a scientific discovery, a book of fiction, a trademark,
a production process.
See also the possibility to own information: Catala P., La propriété de l’information,
in Mélanges P. Raynaud, Dalloz-Sirey, 1985, p. 97. – Galloux J.-Ch., Ébauche d’une
définition juridique de l’information, D. 1994, chron. p. 229. – Mallet-Poujol N.,
Appropriation de l’information: l’éternelle chimère, D. 1997, chron. p. 330. – Passa
J., La propriété de l’information, un malentendu?, Dr. et patrimoine 3 / 2001, p. 64. –
Frison-Roche M.-A., Le droit d’accès à l’information ou le nouvel équilibre de la
propriété, in Le droit privé français à la fin du XXe siècle, Etudes P. Catala, Litec 2001,
p. 759.
France
20
rights is the right of a composer or of an author to his work product.60 These
rights generate a form of property (propriété intellectuelle)61 as they entitle
someone to use it in an exclusive way.62 Nevertheless, even if the immaterial right relates to a corporeal movable, the ownership of the corporeal
movable should not be confused with the intellectual property right to the
process of its creation.63
A short note should be made here in respect of what French law calls
“real obligations” (obligations réelles or obligations propter rem).64 These obligations are a sort of hybrid created by legal scholars65 that explains how a
specific obligation can be linked to an asset, obliging the owner of the asset.
This concept has however, not found any clear acceptance in jurisprudence.
59
(e)
Consequences of these distinctions
The distinction between rights in rem and obligations has a number of
consequences.
59
60
61
62
63
64
65
Atias Ch., Les biens, p. 367, n° 637 et suiv. – Terré F., Simler Ph., Les biens, p. 63,
n° 55 et suiv. for further references. – Zenati-Castaing F., Revet Th., Les biens,
p. 101, n° 55.
Pfister L., La propriété littéraire est-elle une propriété? Controverses sur la nature
du droit d’auteur au XIXe siècle, RIDA, 2005, 117. – Kamina P., Author’s Right as
a Property: Old and New Theories, J. of the Copyright Society of the USA, Vol. 48,
n° 3, 2001, p. 383. – For the ownership of a software program: Rouen, 26 juin 1997:
Gaz. Pal. 1998, 1, somm. p. 91.
Vivant M., L’irrésistible ascension des propriétés intellectuelles in Mélanges Christian Mouly, Litec, 1998, p. 441. – Vivant M., L’immatériel, nouvelle frontière pour
un nouveau millénaire: JCP, éd. G 2000, I, 194. – Zenati F., L’immatériel et les
choses, in Le droit et l’immatériel, Arch. phil. du droit, t. 43, 1999, p. 79. – Adde
critizising, Gutmann D., Du matériel à l’immatériel dans le droit des biens; Les
ressources du langage juridique, in Le droit et l’immatériel, Archives de philosophie
du droit, t. 43, 1999, p. 65.
Zenati-Castaing, Revet Th., Les biens, p. 99, n° 53.
Code de la propriété intellectuelle, article L. 111-3: “la propriété incorporelle […] est
indépendante de la propriété de l’objet matériel”. – Possession of the corporeal asset that
entitles to ownership under article 2279 of the Civil Code does not have any effect
on the ownership of the incorporeal intellectual rights. See Paris, 17 févr. 1988: D.
1989, somm. p. 50, obs. Cl. Colombet. – Kamina, L’indépendance des propriétés
corporelles et intellectuelles, RRJ, 1998-3, p. 881.
Scapel J., La notion d’obligation réelle, préf. P. Jourdain, PUAM 2002.
Zenati-Castaing F., Revet Th., Les biens, p. 461, n° 298.
21
The number of different types of obligations is in principle unlimited,
whereas rights in rem are generally created by statute so that there is a
limited number (numerus clausus) of different types of such rights in rem.66
Rights in rem can be enforced against everyone in the world and therefore have an absolute character (caractère absolu),67 whereas obligations can
only be enforced against the debtor (effet relatif).68 This means in particular
that the absolute right is effective against every other person, whereas a
relative right only grants a restricted right towards a certain person. Nevertheless, third parties have to respect obligations contracted by others
(opposabilité).69 This means specifically that obligations are also protected
against unlawful interferences by anyone whomsosoever.
Additionally, as everybody is bound to respect absolute rights, it would
seem to be a prerequisite that everybody be in a position to know the content of those rights. Nevertheless, as even obligations are protected against
unlawful interference, the fact that third parties effectively know the content of a right is not always relevant. In the case of obligations, the wilful
(or grossly negligent) breach of a right gives rise to an action in tort.70
Obligations can be assets in the form of claims (créances), or liabilities
in the form of debts (dettes), whereas rights in rem are always assets (actifs).71
Obligations only give the creditor a general right to the patrimony of the
debtor (C. civ., art 2285 – former C. civ., art. 2093), who is entitled to manage all the assets in his patrimony until a creditor effects a seizure; whereas
rights in rem encompass the right to follow the object in question into the
hands of anyone who takes possession of it (droit de suite)72 and the right to
be paid in preference to other creditors if the object were to be sold (droit
de preférence).73
Yet this distinction between rights in rem and rights in personam is not
always very clear. For a number of years there has been a controversy over
66
67
68
69
70
71
72
73
See infra 1.1.2 The French numerus clausus of property rights.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 97, n° 93. – See also infra 1.2.1
(a): The absolute right of ownership.
Voirin P., Goubeaux G., Droit civil, p. 434, n° 959.
Comp., Levis M., L’opposabilité du droit réel, Economica 1989, p. 11 and p. 12. –
p. 13, n° 10. – Wintgen R., Etude critique de la notion d’opposabilité, les effets du
contrat à l’égard des tiers en droit français et en droit allemand, préf. J. Ghestin,
LGDJ 2004, Bibl. dr. privé, t. 426.
See however, Chilstein D., Les biens à valeur vénale négative, RTD civ. 2006,
p. 663.
Larroumet Ch., Les biens – Droits réels principaux, p. 24, n° 33.
22
France
the question whether there can be a right of property in a claim (notion de
propriété d’une créance),74 or in other terms, a right in rem to a claim.75 Can
a creditor own his claim against a debtor? Even if the terminology hitherto
used by the legislator76 and by judges77 is not always precise, many legal
scholars78 consider that there can be no right of property in a claim. This
is very widely disputed today.79
Additionally, certain rights have dual characteristics: belonging both to
those of rights in rem and to those of obligations. This is the case of longterm leases (Contrat de bail de longue durée or emphytéose) and for certain
rights in rem that are accessory to an obligation (droits réels accessoires d’une
créance – gage, hypothèque …).80
74
75
76
77
78
79
Emerich Y., La propriété des créances: approche comparative, préf. Zenati-Castaing,
LGDJ, Bibl. dr. privé, t. 469, 2007. – Krief-Sémitko C., De l’action paulienne ou
de la propriété des créances, droit de propriété sur une valeur (essai d’une théorie
de la valeur en droit civil français) (suite), RRJ 2004-2, 789. – Egalement (Krief-)
Verbaere C., Essai d’une théorie générale de la notion de valeur, application au droit
de rétention, RRJ 1999-3, p. 685.
Ginossar S., Droit réel, propriété et créance, élaboration d’un système rationnel
des droits patrimoniaux, LGDJ 1960. – Ginossar S., Pour une meilleure définition
du droit réel et du droit personnel, RTD civ. 1962, p. 573. – Dabin J., Une nouvelle
définition du droit réel, RTD civ. 1962, p. 20. – Zénati F., Pour une rénovation de
la théorie de la propriété, RTD civ. 1993, p. 305. – Also, Bergel J.-L., Bruschi M.,
Cimamoni S., Les biens, p. 106, n° 101 et suiv.
See art. L. 511-7, al. 3 of the Commercial Code which refers to the « property of the
claim » (propriété de la provision).
CEDH, 26 juin 1986, Van Marle v / The Netherlands: serie A, n° 101. – CEDH, 9 déc.
1994, Raffineries Grécques: série A n° 301-B. – CEDH, 6 oct. 2005, Maurice c / France,
n° 11810 / 03; Draon c / France, n° 1513 / 03: RTD civ. 2005, p. 798, obs. Revet.
Ghestin et allii, Introduction générale, LGDJ, 4e éd. 1994, n° 232, p. 185 et suiv. –
Dabin J., op. cit., RTD civ. 1962, p. 20.
See Storck M., La propriété d’un portefeuille de valeurs mobilières, in Le droit privé
français à la fin du XXe siècle, Etudes P. Catala, Litec 2001, p. 695. – Cashin-Ritaine
E., Les cessions contractuelles de créances de sommes d’argent dans les relations
civiles et commerciales franco-allemandes, pref. F. Ranieri, avant propos F. Jacquot,
LGDJ 2001, Bibl. dr. privé, t. 348, p. 32, n° 43 seq. – Emerich Y., La propriété des
créances: approche comparative, préf. Zenati-Castaing, LGDJ, Bibl. dr. privé, t. 469,
2007, p. 459, n° 877. – Krief-Sémitko C., De l’action paulienne ou de la propriété
des créances, droit de propriété sur une valeur (essai d’une théorie de la valeur en
droit civil français) (suite), RRJ 2004-2, 789. – Egalement (Krief-) Verbaere C.,
Essai d’une théorie générale de la notion de valeur, application au droit de rétention,
RRJ 1999-3, p. 685.
23
Finally, if an absolute right is violated, this can, in certain circumstances,
generate a relative right against a certain person, such as a claim for damages based on tort law.81
80
1.1.2. The French numerus clausus of property rights
French authors82 generally consider that rights in rem are listed exclusively by
statute and that new property rights can only be created by way of statute.83
Nevertheless, a controversial court decision84 decided in 1834 that rights in
rem could also be created on a contractual basis. This would mean that parties to a contract may agree on new types of rights in rem. This possibility has
only been used on very few occasions.85 It is considered to be a factor of legal
uncertainty because it creates a risk with respect to third parties.86
There is no formally exclusive catalogue (numerus clausus) in French
law. Nevertheless, there are two types of rights in rem recognised by statute:
principal rights in rem and accessory rights in rem. The Civil Code lays
down the rights and duties following from each type of right in rem, as well
80
81
82
83
84
85
86
See also usufruct rights on securities: Rabeau A., L’usufruit des droits sociaux, Litec,
Bibl. dr. de l’entreprise, 2006.
Under C. civ., art. 1382.
Carbonnier J., Droit civil, Les biens: PUF, 18e éd., 1998, n° 44. – Chabas F., Biens:
Montchrestien, 8e éd. 1994, n° 1287 – Contra: In favour of contractual rights in rem:
Atias Ch., Les biens, p. 47, n° 71. – Malaurie Ph., Aynès L., Les biens, Defrénois
2e éd. 2005, p. 91, n° 359. – Terré F., Simler Ph., Les biens, p. 60, n° 52.
This creates specific problems when foreign property rights are to be recognized in
France. See in particular, Cabrillac M., La reconnaissance des sûretés réelles sans
dépossession constituées à l’étranger: Rev. crit. DIP 1979, p. 487. – Klein F. E.,
La reconnaissance en droit international privé helvétique des sûretés réelles sans
dépossession constituées à l’étranger: Rev. crit. DIP 1979, p. 507. – Kreuzer K., La
reconnaissance des sûretés mobilières conventionnelles étrangères: Rev. crit. DIP
1995, p. 465. – Dahan F., La floating charge, reconnaissance en France d’une sûreté
anglaise: JDI 1996, p. 381.
Cass. req., 13 févr. 1834 (arrêt Caquelard): D. 1834.I.218; S. 1834.1.205; GA de la
jurisp. civ., F. Terré, Y. Lequette, n° 60: “ni ces articles (C. civ., art. 544, 546 et 552),
ni aucune autre loi, n’excluent les diverses modifications et décompositions dont le droit
ordinaire de propriété est susceptible”. – Atias Ch., Les biens, p. 47, n° 71. – Comp.,
Belgian Law: the Belgian Cour de cassation (Cass, 16 sept. 1966, Journ. Trib. 1967,
59 and Cass., 17 oct. 1996, R.W. 1996-97, 1395, note M.E. Storme) does not allow
parties to create real rights that have not been recognised by law.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 48 n° 53 et p. 287, n° 283.
Zenati-Castaing, Revet Th., Les biens, p. 458, n° 296 seqq.
24
France
as the content. However, these rules are not mandatory. This does not mean
that parties can encumber rights in rem freely. Yet if the owner of an asset
restricts functional rights to the asset by, for example, limiting his own right
to use the asset, he will most likely fall within a category provided for by
the Civil Code. In comparison to other legal systems, such as the German
and Austrian systems, legal practitioners have not created new categories of
rights in rem or quasi rights in rem such as the various types of credit securities by transfer of ownership or equitable interests found in German law.87
Principal rights in rem derive from the right of property (ownership
rights) and from the constituent elements of this right (C. civ., art. 543).
Ownership rights encompass three characteristics: the right to use the asset (usus), the right to collect the fruit (fructus) and the right to dispose
of the asset (abusus).88 Principle rights in rem use a combination of these
attributes. They are rights that are autonomous and that apply directly to
the use of an asset.
In this respect, French law accepts the following principal rights in rem:
– Usufruct rights (Usufruit), where the usufructary is entitled to the right
to use the asset (usus) and the right to collect the fruit (fructus) (C. civ.,
art. 578 to art. 624);
– Rights of use (droit d’usage)89: a limited type of usufruct where the bearer
can use an asset and collect the fruit, but only to cover his own needs
and those of his family (C. civ., art. 630-631);
– Rights of dwelling (droit d’habitation): the right of the bearer to use a
building and to live there with his family only (C. civ., art. 632-633).
A person entitled to a right of use or of dwelling cannot alienate or
encumber it; nor can he allow the asset to be used or the dwelling to
be inhabited by another person. These rights are immovable rights.90
– Rights of easement (servitude): the right of the owner of a piece of land
to use some attributes of the neighbouring land, for example water rights
or a right of way (C. civ., art. 637 to art. 710). This right is immovable.91
– Long term leases (emphytéose): a lease given for a period of 18 to 99
years gives quasi-ownership rights to the tenant92 (see also bail à construction, bail à rehabilitation – CCH, art. L 251-1 to art. L 252-4).
87
88
89
90
91
See infra, 1.1.3: Other general principles of property law.
See infra 1.2.1: Definitions and characteristics of ownership, and 1.2.2: Interests
linked to the right of ownership.
Gau-Cabée C., Droits d’usage et Code civil, l’invention d’un hybride juridique, préf.
J. Poumarède, LGDJ 2006, Bibl. dr. privé, t. 450.
Cass. 3e civ., 23 juin 1983: JCP 1983, II, 19928.
Cass. 3e civ., 27 oct. 1993: Bull. civ. III, n° 132.
25
– Surface rights (droit de superficie) entitle the bearer to the use of the
surface of an estate, but not to the subsoil.93
92
Most of these principal rights in rem apply only to immovable property,
except the right of usufruct94 (C. civ., art. 581) and the right of use, which
can exist in respect of a movable.
Accessory rights in rem entitle the creditor of an obligation to a specific
right to an asset owned by the debtor. These rights only exist in relation to
a claim. These accessory rights generally have a security function.
Until recently, there were two main accessory rights in rem: the right
of lien (droit de gage – C. civ., art. 2333 to art. 2350)95 and the right of
mortgage (hypothèque, C. civ., art. 2393 to art. 2425).96 In these two cases,
the creditor of an obligation acquires a direct interest in a movable or an
immovable owned by the debtor. This right is accessory to the obligation
of the debtor. This accessory right allows the creditor to claim the asset,
regardless of in whose hands it may be (droit de suite).97 It also gives him
the right to be paid in preference to other creditors if the asset were to be
sold (droit de preference).
The 2006 law reform of security rights98 now clearly recognizes four types
of securities in movables. Article 2329 of the Civil Code lists privileges,
pledges, pledges of incorporeal movables and the retention of ownership.99
However, these accessory rights essentially aim to give their holders an
economic right to the value of the asset, rather than to give the holder of the
right a direct right to the asset.
92
93
94
95
96
97
98
99
Cass. 3e civ., 15 mai 1991: Bull. civ. III, n° 140, p. 82: « le bail emphytéotique de biens
immeubles confère au preneur un droit réel susceptible d’hypothèque ». – C. rur. art. L
451-1 to art. L 451-14.
See for details, Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 290, n° 285.
Example of a usufruct right to a sum of money: Cass. 1e civ., 19 févr. 1980: Bull. civ.
I, n° 63.
Pledges were formerly ruled under C. civ., art 2071 seq. The whole field was reformed
by the Ord. n° 2006-346 du 23 mars 2006. See also the right of privilege (C. civ.,
art. 2330 seq.).
Yet, Putman E., Sur l’origine de la règle: « meubles n’ont point de suite par hypothèque », RTD civ. 1994, chr. p. 543. – See also the antichrèse (C. civ., art. 2387
seq.), that enables the creditor to be paid with the income of an immovable asset or
by preference on the price of the sale.
With a limit concerning movables: C. civ., art. 2276 (former C. civ., art. 2279) (see
infra 12: Rules of good faith acquisition).
See the Ordonnance n° 2006-346 du 23 mars 2006, JO du 24 mars 2006 that has
been codified in the Civil Code.
See infra 15: Rules for the reservation of title.
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26
1.1.3. Other general principles of property law
In French law, it is not customary to present general principles of property
law in a dogmatic way, classifying them under a general heading as is the
case in German or Austrian law,100 nevertheless, similar principles do exist
in French law.
All assets in French law are subject to at least one right in rem, as under
French law every asset must have an identified owner, which in the last resort is the State.101 In practise, this principle only applies to immovables.102
Every person owns a patrimony (patrimoine), which encompasses all assets and liabilities103 of the person.104 This patrimony is linked to a person
and does not exist independently of the person.105
Only objects subject to human control can be owned.106 For example,
water in the sea and air can only be partially owned when they are controlled, e.g. put in a bottle.107
100
101
102
103
104
105
106
107
See for example, the notions of: Typenzwang, Typenfixierung, Spezialitätsprinzip.
C. civ., art. 713: Goods without a master belong to the town (commune) where they
are situated. However, ownership is transferred automatically to the State if the town
renounces to exercise its rights. – See also C. civ., art. 539: The assets of persons
who die without heirs or whose successions are abandoned belong to the State.
There is a very specific situation that occurs when the owner of a field finds assets
that have an archeological interest. In this case, the owner of the field is not deemed
owner of the objects found: these belong to the State. See art. 18-1 of the law of 27
September 1941 on archeological discoveries (JO, 15 oct. 1941, p. 4438), recodified
at Code du patrimoine, art. L 531-16. – Also, Saujot C., La loi n° 2001-44 du 17
janvier 2001 relative à l’archéologie preventive, JCP 2001, I, 351.
Principle of universality: see, Zenati-Castaing F., Revet Th., Les biens, p. 22, n° 4.
Zenati F., Mise en perspective et perspectives de la théorie du patrimoine, RTD civ
2003, 667. – Atias Ch., La distinction du patrimonial et de l’extra-patrimonial et
l’analyse économique du droit: un utile face-à-face, RRJ, 1987-2, 477.
Zenati-Castaing F., Revet Th., Les biens, p. 34, n° 8. – Hiez D., Etude critique
sur la notion de patrimoine en droit privé actuel, préf. Ph. Jestaz, LGDJ, bibl. dr.
privé, t. 399, 2003. – Fromion-Hebrard B., Essai sur le patrimoine en droit privé,
préf. M. Grimaldi, LGDJ, bibl. dr. privé, t. 398, 2003. – Comp. Groulier C., Quelle
effectivité juridique pour le concept de patrimoine commun?, AJDA 2005, p. 1034.
Comp. Proutière-Maulion G., L’évolution juridique du poisson de mer – Contribution à la notion juridique de bien, D. 2000, p. 647. – De Rey-Bouchentouf M.-J.,
Les biens naturels, un nouveau droit objectif: le droit des biens spéciaux, D. 2004,
p. 1615.
See C. civ., art. 714: (1) There are assets which belong to nobody and whose usage
is common to all. (2) Public order statutes regulate the manner of enjoying them. –
Malaurie Ph., Aynès L., Les biens, Defrénois 2e éd. 2005, p. 51, n° 164. – Sériaux
27
Rights in rem, in general, apply to an existing, identified and individual
asset.108 This means on the one hand, that the transfer of property has to
occur in respect of a particular asset. It is nevertheless possible to own a
combination (aggregate) of assets that cannot be separated. This combination is referred to as a “universalité de droits”. For example, a business
(fonds de commerce) is such a combination of assets.109 Yet, in the case of a
transfer of a business entity, separate transfers have to be made in respect
of the movable, immovable and incorporeal assets, particularly as to their
evaluation.110 On the other hand, rights in rem can only apply to things that
can be “owned”. Assets like res communis,111 res nullius, and res derelictae
are thus excluded.
Articles 711 and 712 of the Civil Code list four ways of acquiring ownership rights: by succession, by contract, by acquisitive prescription112 and
by accession.113 Scholars add two other mechanisms to this list: by operation of law and by occupation.114
The transfer of property in French law is governed by the solo consensu
principle, which means that property is transferred solely through the intent of the contracting parties without any other formality.115 The transfer
of property requires a valid legal transaction such as a contract. This legal
transaction must have a valid causa. Thus French law follows the causal
principle. In all cases, a form of publication is required to give effect to
the right in rem with respect to third parties. These formalities can be of
three kinds: traditio (or its substitute),116 notice to a third party or publicity
(registration or recordation).
108
109
110
111
112
113
114
115
116
A., La notion de choses communes; Nouvelles considérations juridiques sur le verbe
avoir, Droit et environnement, 1995, p. 27 et s. n° 5 et s. – Bergel J.-L., Bruschi
M., Cimamoni S., Les biens, p. 189, n° 178 et suiv.
Atias Ch., Les biens, p. 51, n° 72. – Libchaber R., Le portefeuille de valeurs mobilières: bien unique ou pluralité de biens, Défrenois 1997, p. 65.
Terré F., Simler Ph., Les biens, p. 26, n° 20.
C. com., art. L 141-1.
Such as the sea, running water, air. However these resources are becoming more rare
and many mechanisms are set up to control their appropriation: EU Council Directive 96 / 61 / EC of 24 September 1996 concerning integrated pollution prevention
and control (and its amendments) – Kyoto Protocol of 11 dec. 1997 amending the
UN Framework Convention on Climate Change. – Chardeaux M.-A., Les choses
communes, LGDJ 2006, préf. G. Loiseau, bibl. dr. privé, t. 464.
See infra 13: Rules for acquisitive prescription.
See infra 11.1: Accession of movables.
See Terré F., Simler Ph., Les biens, p. 313, n° 388.
See infra 5.1.1: The “unititular” or “uniform” concept of the transfer of ownership.
See infra 5.4 (Traditio) and 2.1 (Notion of possession).
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28
It is not possible under French law to create a security by transfer of
ownership, as ownership rights cannot be limited in time and thus revert
to a previous owner when the debt has been paid.117 French law does not
recognise securities such as the Sicherungsübereignung or the Sicherungsabtretung in German law.118
If there is a conflict between two property rights, the issue is decided
either by the principle of publicity, i.e. the first registered or recorded property right is preferred, or by the principle of priority, i.e. the oldest property
right is stronger than the younger one (prior tempore, potior jure).119 In the
case of movables, publication is in general ensured by direct possession.
There are however, many cases where possession can be indirect.120
1.1.4. Where are the rules on property law (on movables)
to be found?
The rules on property law can be found within the Civil Code, in the second book relating to goods and alterations to ownership rights (Livre deuxième, Des biens et des différentes modifications de la propriété) and in the third
book relating to the different ways to acquire ownership (Livre troisième,
Des différentes manières dont on acquiert la propriété).121 Yet as movables were
considered in the past to be lesser things (res mobilis, res vilis),122 only a few
provisions of the Civil Code specifically apply to movables.
In particular, articles 516 to 710 of the Civil Code describe goods in
general and their uses. Articles 711 to 717 of the Civil Code explain the
different ways to acquire ownership. Articles 1582 to 1701 describe the
sale of goods (vente) and the assignment of receivables (cession de créance).
122
117
118
119
120
121
122
See nevertheless, the mecanism of the “repurchasing” sale (vente à reméré) that
enables the seller to repurchase the good within a period of five years (C. civ.,
art. 1659-1673). – Huet J., Les principaux contrats spéciaux, Traité de droit civil
sous la dir. de J. Ghestin, LGDJ 2e éd 2001, p. 406, n° 11454.
Cashin-Ritaine E., Les cessions contractuelles de créances de sommes d’argent
dans les relations civiles et commerciales franco-allemandes, préf. F. Ranieri, Bibl.
dr. privé t. 348, LGDJ 2001, p. 361, n° 587 seqq.
Roland H., Boyer L., Adages du droit français, Litec 4e éd. 1999, p. 674, n° 339.
See infra 2.1: Notion of possession.
Revet Th., Le code civil et le régime des biens: questions pour un bicentenaire, Dr.
et patr., mars 2004, p. 20. – See also, the code on Financial Markets (Code des marchés financiers) that details the legal status of securities and other immaterial rights.
Other codes specifically examine the rules for intellectual property rights (Code de
la propriété intellectuelle) and criminal law (Code pénal).
29
Security rights123 are described under articles 2333 to 2354 (gage), articles
2355 to 2366 (nantissement de meubles incorporels), 2367 to 2372 (la propriété
retenue à titre de garantie) and articles 2330 to 2332-3 (privilèges sur les meubles). Rules on possession and on the statutes of limitations can be found
in articles 2219 to 2279 (new version) of the Civil Code.124
Other rules on the transfer of goods can be found outside the Civil
Code.125 In particular, the Commercial Code (Code de commerce) has various articles on the treatment of property rights in insolvency proceedings126
and on shares, negotiable instruments and other intangible goods.127 Similarly, specific rules apply to public property.128
1.2.
Notion of ownership
1.2.1. Definitions and characteristics
(a)
Definitions
The right of property / ownership129 is the most important and comprehensive right in rem.130 According to article 544 of the Civil Code:131 “ownership is the right to enjoy the use and to dispose of an asset in the most
130
123
124
125
126
127
128
129
130
Ordonnance n° 2006-346 du 23 mars 2006 (JO du 24 mars 2006) that has been
codified in the Civil Code.
These articles have been modified by the loi n° 2008-561 du 17 juin 2008 portant
réforme de la prescription en matière civile (in force as of 19th of June 2008).
Seube J.-B., Le droit des biens hors le Code civil, PA 15 juin 2005 n° 118, p. 4.
See in particular, C. com., art. L 624-9 (formerly, C. com., art. L 621-115) with
respect to the rights of a seller benefiting from a retention of title.
See in the Commercial Code, the articles L 210-1 seq. in the Livre deuxième: Des
sociétés commerciales et des groupements d’intérêt économique, and in particular, art. L
224-1 seq.
See the relevant articles in the Code général de la propriété des personnes publiques
(Ord. du 22 avril 2006).
Zénati-Castaing F., La propriété, mécanisme fondamental du droit, RTD civ. 2006,
p. 445. – La propriété, Travaux de l’Association H. Capitant, SLC 2006. – Bufnoir
C., Propriété et contrat, Paris 1924. – Vareilles-Sommières, La définition et la
notion juridique de la propriété, RTD civ. 1905, 443. – Lévy J.-Ph., Histoire de la
propriété, PUF, Que sais-je, 1972.
The nature of ownership rights has been largely discussed in legal scholarship. Many
opinions collide on what exactly is to be understood under this word. Historical
analysis and modern interpretation thus provide many understandings of the concept of ownership, and it is not possible to present them all here. However, a very
l
e
é
n
–
absolute way, under the condition that it is not used in a way prohibited by
law or by regulations”. The right of property encompasses both a subjective
aspect: the exclusive right of a person to an asset; and an objective aspect:
the attribute that an asset belongs to a person.132 Property rights are not
assets / goods in the legal sense, but only a mechanism that enables objects
to become “assets / goods”133 and, in this respect, ownership rights are considered to be subjective rights (droits subjectifs).134
The right of property is mentioned in the 1958 French Constitution,135
the preamble to the 1946 Constitution136 and the 1789 Declaration of Hu131
131
n
o
e
m
e
s
132
u
r
e
France
30
133
134
135
interesting analysis of these diverse opinions can be found at Zenati-Castaing F.,
Revet Th., Les biens, p. 267-270, n° 167. – See also Libchaber R., La recodification du droit des biens, in Le Code civil 1804-2004, Livre du bicentenaire, Dalloz-Litec
2004, 297 (304-311)
C. civ., article 544, « la propriété est le droit de jouir et disposer des choses de la manière la
plus absolue, pourvu qu’on en fasse pas un usage prohibé par les lois ou les règlements ». –
See also, Pavageau S., Le droit de propriété dans les jurisprudences suprêmes françaises, européennes et internationales, préf. S. Braconnier, LGDJ 2006, Coll. Univ.
Poitiers, n° 37, p. 31. – Cass. 1e civ., 4 janv. 1995: Bull. civ. I, n° 4; D. 1995, Somm.
328, obs. Grimaldi; JCP 1996, I, 3921, n° 1, obs. Périnet-Marquet; RTD civ. 1996,
932, obs. Zénati.
Comp. Libchaber R., La recodification du droit des biens, in Le Code civil 18042004, Livre du bicentenaire, Dalloz-Litec 2004, 297 (310) who states that public
ownership is in contradiction to private ownership, as public property is a collective
concept.
Zenati-Castaing F., Revet Th., Les biens, p. 260, n° 164: in particular, the right
of property is not an incorporeal right.
Zénati-Castaing thus distinguishes the power to want (pouvoir de vouloir) from the
power to claim (pouvoir d’exiger): ownership belongs to the first type, rights to the
second. See Zenati-Castaing F., Revet Th., Les biens, p. 265, n° 167. – However,
see Duguit (Duguit L., Les transformations générales du droit privé depuis le Code
Napoléon, Paris, 2e éd. 1920, p. 156-157) who does not consider ownership rights as
rights but only as an objective legal situation. See Mestre A., Remarques sur la notion de propriété d’après Duguit, Arch. phil. du droit 1932, p. 163. – Comp. CEDH,
30 nov. 2004, Öneryildiz c / Turquie, req. 48939 / 99: RTD civ. 2005, 422, obs. Revet.
If only done by reference to the 1789 Declaration. In particular, the right of property
has a constitutional value: Cons. Const., n° 81-132, DC, 16 janv. 1982: Rec. p. 18;
Grandes décisions, n° 31; D. 1983, 169. – Cass. 1e civ., 4 janv. 1995: Bull. civ. I, n° 4;
D. 1995, somm. 328, obs. Grimaldi; JCP N, 1995, II, 1468, obs. Simler; RTD civ.
1996, 932, obs. Zenati. – Cass. 1e civ., 13 déc. 2005: JCP E 2006, 2743, note Lamoureux. – Cass. 1e civ., 28 nov. 2006: JCP 2007, I, 117, n° 7, obs. Périnet-Marquet. –
Cons. Const., 29 juil. 1998: D. 1999, 269. – Legeais D., Le Conseil constitutionnel
français, protecteur du droit de propriété, in Mél. Flattet, Ed. Payot Lausanne 1985,
31
man Rights.137 Additionally, international law and in particular the European Convention on Human Rights138 also protect the right of property.139
Administrative law considers the right of ownership to be a fundamental
freedom.140
Notwithstanding this general protection of the right of property, public
law tends to infringe more and more on private property rights, aiming to promote the use of private property in the public interest. Yet these limitations
generally only apply to immovable property, and shall not be developed here.
136
(b)
Characteristics of ownership rights
In the field of private law, the right of property has the following effects.
Ownership rights have three characteristics: they are absolute, exclusive and perpetual. Additionally, property rights are characterized by the
notion of droit de suite:141 the owner, or the person entitled to a partial (or
136
137
138
139
140
141
p. 61. – Chérot J.Y., La protection de la propriété dans la jurisprudence du Conseil
constitutionnel, in Mél. Christian Mouly, Litec 1998, t. 1, p. 405. – Brunet P., Les
garanties de la propriété par le juge constitutionnel, in La propriété, Travaux de
l’Association H. Capitant, SLC 2006, p. 531.
Again by reference to the 1789 Declaration.
DDHC, article 17: « La propriété étant un droit inviolable et sacré, nul ne peut en être
privé, si ce n‘est lorsque la nécessité publique, légalement constatée, l’exige évidemment,
et sous la condition d’une juste et préalable indemnité ». – See also article 2 DDHC of
1789. – Mestre J.-L., La propriété, liberté fondamentale pour les Constituants de
1789, RFDA, n° 1, janv.-fév. 2004, p. 1-5.
First Protocol to the ECHR (20th March 1952): Article 1: “Every natural or legal
person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or other contributions or penalties”. –
CEDH, 13 juin 1979: Marckx, Série A n° 24, § 63. – It is also considered as a human right: Rémy Ph., La propriété considérée comme un droit de l’homme, in La
protection des droits fondamentaux, Publications de la Faculté de droit et des sciences
sociales de Poitiers, t. 22, PUF, 1993, p. 127. – Bîrsan C., Renucci J.-F., La Cour
européenne des droits de l’homme précise le droit de propriété, D. 2005, 870.
See also the protection by the European Court of Justice: CJCE, 44 / 79, 13 dec. 1979,
Hauer: Rec. p. 3327; JDI 1981, note V. Constantinesco, p. 174.
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32
restricted) right, is allowed to follow and claim his property regardless of in
whose hands it may be.
(i)
The absolute effect
The absolute effect of property mentioned in article 544 of the Civil
Code means that the owner has all the rights to an asset (usus, fructus
and abusus).142 There are no limits inherent in the right of property. Legal
restrictions upon the right of ownership can only be created by statute or
by regulation.143 As a general principle, it is not possible to use the right
of property in a way prohibited by law (C. civ., art. 544). This has been
construed in a rather liberal manner by the courts. In this respect, court
decisions have discovered a number of restrictions upon the use of an asset
by its owner. In particular, the theory of misuse of one’s rights (abus de droit)
has been applied to the right of property.144 This theory limits the right of
ownership by taking into account the intention of the owner whilst using
the asset. If the owner uses the asset in a way that is a misuse of an ownership right, courts will limit the right of the owner.145
There is also a jurisprudential theory enabling one to sue an owner or
a user of an asset if his use of the asset brings abnormal disruption to the
neighbourhood (troubles anormaux du voisinage).146 Generally this theory
only applies to immovable property. Nevertheless, it should be possible to
use this theory in relation to movables as well.147
142
143
144
145
146
See infra 1.2.2: Interests linked to the right of ownership. – Bergel J.-L., Bruschi
M., Cimamoni S., Les biens, p. 97, n° 93. – See however Zenati-Castaing F., Revet Th., Les biens, p. 333, n° 209, who consider these attributes as an effect of the
exclusive character of ownership; yet they write p. 343: “Ainsi que le prévoit l’article
544 du Code civil c’est à la fois la jouissance – que nous interprétons comme exclusivité – et
la disposition qui s’exercent de manière absolue et donc opposable”. – Critizing the limitation: Libchaber R., La recodification du droit des biens, in Le Code civil 1804-2004,
Livre du bicentenaire, Dalloz-Litec 2004, 297 (306).
See C. civ., art. 545: No one may be compelled to yield his ownership, unless for
public purposes and for a fair and previous indemnity.
Req., 3 août 1915, arrêt Clément Bayard: GAJC 11e éd. 2000, n° 62; DP 1917, 1, 79.
For a general presentation, Ghestin J., Goubeaux G., Traité de droit civil, Introduction générale, LGDJ 4e éd. 1994, p. 775, n° 790 seqq.
Cass. 2e civ., 23 oct. 2003: Bull. civ. II, n° 318; D. 2004, Somm. 2467, obs. MalletBricout; RTD civ. 2004, p. 315, obs. Revet. – Cass. 3e civ., 24 oct. 1990: Bull. civ. III,
n° 205. – Lepage A., Le voisinage, Défrenois 1999, 257 – Libchaber R., Le droit de
propriété, un modèle pour la réparation des troubles du voisinage, in Mél. Christian
Mouly 1998, t. 1, p. 421.
33
On the other hand, constitutional protection of the right of property
has increased in recent years.148 This means, in particular, that only statutes
can circumscribe the principles underlying the rights of property, the rights
in rem and civil and commercial obligations (1958 Constitution, art. 34149).
However, the law can impose a number of charges on the owner, such as
obligations to pay tax or insurance.
Additionally, the absolute effect of ownership rights means that the owner
can claim the right against all parties without any restriction other than the
duty to respect the rights of others. Ownership rights thus have erga omnes
effects150 and cannot be limited to inter partes relationships. In particular,
even a court decision that is limited to interpersonal relationships (relativité
de la chose jugée) will have erga omnes effects if it declares property rights. Any
event that modifies ownership is ipso facto effective against all third parties.151
Notwithstanding this absolute effect, the owner is obliged to respect the
rights of others. In particular, if the owner has established a partial right
(e.g. usufruct) or a personal right (e.g. lease) to the asset, he must respect
this limitation. In the case of co-ownership, co-owners must respect the
rights of the other co-owners.
147
(ii)
The exclusive characteristic
The exclusive characteristic means that only the holder of a right of property
can take advantage of the asset and, thus, third parties cannot impinge
upon his enjoyment.152 Exclusivity results from the appropriation by one
147
148
149
150
151
152
This would be the case if the disruption comes from a movable asset, for example, if a
person uses a particularly noisy machine in a residential area. See Cass. 3e civ., 3 janv.
1969: D. 1969, 323; JCP 1969, II, 15920, note Morgeon: use of a vacuum cleaner. –
Lyon, 23 déc. 1980: D. 1983, 605, note Aubert: use of a musical instrument.
Cons. const., 16 janv. 1982: GAJC 11e éd, 2000, n° 1. – Cons. const., 29 juill. 1998:
JCP 1998, I, n° 2, obs. Périnet-Marquet.
Constitution, art. 34 (extracts): « La loi détermine les principes fondamentaux: (…) du
régime de la propriété, des droits réels et des obligations civiles et commerciales (…) ».
p. 193 seq.
Comp. C. civ., art. 1165: Agreements produce effect only between the contracting
parties; they do not harm a third party, and they benefit him only in the case provided for in Article 1121.
Cass. civ., 22 avril 1823, Hellot: S. 1822-1824, I, p. 243; GAJC, 11e éd. Dalloz 2000,
p. 334. – Nevertheless, the owner of an asset does not possess a exclusive right to
the image of an asset: Ass. plén, 7 mai 2004: Bull. ass. plén. n° 10. – Contra, Cass.
1e civ., 10 mars 1999: Bull. civ. I, n° 87, he can only prevent the use of an image if
this causes abnormal damage to him.
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34
single individual or by a group of persons (in the case of co-ownership153).
Exclusivity comprises the right to exclude others from the use of the asset.
This is accomplished, in general, by material acts that simultaneously show
the possession of the asset by the owner.
With respect to third parties, the rights of ownership of the asset are
indivisible. This means that the owner appears as such with respect to everybody. This situation would not exist if two owners could claim ownership
against two different categories of persons.154 Nevertheless, the owner or
the law can give others part of the right (e.g. usufruct rights or easement
rights). Sometimes community interests entail that property rights can be
used by others than the owner. This is the case of land that lays fallow,
which can be farmed against the will of the owner.155
Such a possibility for others to use an asset is not common in respect of
movables. However, intellectual property law allows others to use a patent
(i.e., be granted a compulsory licence) if the holder of the patent has not
manufactured any (or sufficient) product(s) under his patent within a period
of three years after the granting of the patent (C. prop. intell., art. L 613-11).
The exclusive characteristic does not mean that an asset can have only
one owner. French law recognises various forms of joint ownership (indivision, copropriété).156 This situation is to be distinguished from the case
where different persons have different rights in rem in the same asset (for
example, usufruct rights in relation to the owner without the usufruct).
It is to be remarked, that even if ownership is conditional (precedent
or subsequent conditions), this does not affect the exclusive character of
the right of property.
(iii)
The perpetual characteristic
The perpetual characteristic157 covers two situations: First, the right of property lasts as long as the asset; second, the right of property does not disappear if the asset is not used.158
153
154
155
156
157
Such co-ownership is not a normal situaiton, because none of the co-owners can
fully exercise his ownership ight. Thus the right to divide a co-ownership is fundamental to the right of ownership and is, as such, protected by the French constitution. Co-ownership (indivision) can never be perpetual.
Atias Ch., Les biens, p. 2, n° 3. – Comp. Libchaber R., La recodification du droit des
biens, in Le Code civil 1804-2004, Livre du bicentenaire, Dalloz-Litec 2004, 297 (315).
C. rural, art. L 125-1 seq.
Loi du 31 déc 1995 et décret du 9 juin 1996 (copropriété) and C. civ., art. 815 seq.
(indivision). See infra 17: Co-ownership.
However, Pourquier C., Le mythe de la perpétuité de la propriété, Himeji International Forum of Law and Politics, n° 2, 1995, 143 seq. – Comp., C. civ., art. 2227
35
It has been acknowledged for numerous years that the right of property
is inherent to the asset and cannot be separated from it.159 Nevertheless,
from a theoretical standpoint, it is necessary to distinguish the right to an
asset from the asset itself.160
There is no such thing as temporary property in French law. It is not
possible to give up the right of property for a limited period of time.161
When an owner disposes of (i.e., conveys) his property, the buyer is not the
bearer of a new property right: the right of property of the seller is simply
transferred to the buyer.162 This is also the case if the object disappears and
reappears at a later period.163 The initial owner remains the holder of the
right of property. The right to revindicate the object is not subject to a
statute of limitations.164
158
158
159
160
161
162
163
164
(new version): Le droit de propriété est imprescriptible. Sous cette réserve, les actions
réelles immobilières se prescrivent par trente ans à compter du jour où le titulaire d’un droit
a connu ou aurait dû connaître les faits lui permettant de l’exercer.
Req., 12 juil. 1905: GAJC 11e éd. 2000, n° 61; DP 1907, 1, 141, rapp. Potier; S. 1907,
1, 273, note Wahl. – Cass. 3e civ., 22 juin 1983: Gaz. Pal. 1983, 2, pan. 309, note Piedelièvre. – Cass. 3e civ., 5 juin 2002, Bull. civ. III, n° 129. – Cass. 3e civ., 9 juillet 2003:
Bull. civ. III, n° 156; JCP 2004, 816, obs. Atias. – Lamarche Th., L’imprescriptibilité
et le droit des biens, RTD civ. 2004, 403. – Hébraud, La notion et le rôle du temps
en droit civil, in Mélanges Kayser, PU Aix Marseille, 1979, t. 2, p. 1
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 106, n° 101.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 107, n° 101. – See supra, 1.1.1
(a): Characteristics of rights in rem in contrast to obligations.
Contra, Voirin P., Goubeaux G., Droit civil, p. 274, n° 611: admitting that property
can be transferred under the constitution of a time limit (terme).
Malaurie Ph., Aynès L., Les biens, Defrénois 2e éd. 2005, p. 159, n° 552. – Atias
Ch., Les biens, p. 188, n° 285 seq. – Yet see infra 1.5: The transferability of movable
assets.
This was decided, in a case involving immovable property, by the Assemblée plenière
of the Cour de cassation: Ass. plén., 23 juin 1972, l’affaire dite de l’étang Napoléon:
Bull. civ., n° 3; JCP 1973, 17331 note Goubeaux et Jégouzo: D. 1972, 705, concl.
Lindon.
Cass. 1e civ., 2 juin 1993: Bull. civ. I, n° 197; D. 1993, Somm. 306, obs. A. Robert; D.
1994, 582, note Fauvarque-Cosson; Défrenois 1994, 414, obs. Souleau-Defrénois: “la
propriété ne s’éteignant pas par le non-usage, l’action en revendication n’est pas susceptible
de prescription extinctive”. – Cass. 3e civ., 5 juin 2002: Bull. civ. III, n° 129; D. 2003,
1461, note Pillet; JCP 2002, II, 10190, note du Rusquec. – See nevertheless, Cass.
com., 8 mars 1994: Bull. civ. IV, n° 101, limiting the right of a seller to revindicate
within three months after the opening of an insolvency proceeding (C. com., art. L
624-9 former art. L 621-115).
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36
Nevertheless, in the case of movables, the perpetual characteristic of
property is not always maintained. If a movable object is abandoned by its
owner (res derelicta), the object has no master until another person takes
possession of it and becomes owner by the effect of the mechanism of the
so called “occupation” (taking of possession), which is the creation of a new
property right of the third party from the moment he enters into possession
of the object.165
Similarly, acquisitive prescription rules in the field of movables, through
the mechanism of article 2276 of the Civil Code (former C. civ., art. 2279),
give the new possessor of the asset a new property right.166 In this respect,
the taking of possession and acquisitive prescription rules are two original
ways to acquire property. Original ownership of movables can thus be obtained through possession and through occupation.167
In the case of immovable assets, there is no exception to the perpetual
characteristic of the right of property, except perhaps as regards surface
ownership (droit de superficie),168 which can be transmitted for a limited
period of time.
It must also be noted that ownership rights do not disappear if they are
not used, as is the case of usufruct rights (C. civ., art. 617) and easements
(C. civ., art. 706). There is no such thing as a resolutory statute of limitations, even if in the same period of time a third person can gain ownership
through acquisitive prescription.169 This third person would have to use
the asset to be able to benefit from acquisitive prescription rules. As a
consequence, the owner of an asset has a perpetual right to assert his property rights to an asset, as long as another person does not acquire the asset
through acquisitive prescription rules.170
1.2.2. Interests linked to the right of ownership
The right of ownership is the most important and comprehensive right in
rem. As mentioned before, according to article 544 of the Civil Code,171
“ownership is the right to enjoy the use and to dispose of an asset in the
165
166
167
168
169
170
171
See infra 11: Types of original acquisition.
See infra 12: Good faith acquisition.
See infra 2.2: Functions of possession.
Malaurie Ph., Aynès L., Les biens, Defrénois 2e éd. 2005, p. 279, n° 900-905.
See infra, 13: Acquisitive prescription.
Cass. 1e civ., 7 oct. 1964: Bull. civ. I, n° 430.
C. civ., article 544: Ownership is the right to enjoy and dispose of assets in the most
absolute manner, provided it is not used in a way prohibited by statutes or regulations.
37
most absolute way, under the condition that it is not used in a way prohibited by law and by regulations”.
The right of property gives its holder full mastery of the asset.172 He has
the right (or more accurately said, the choice173) to use the asset (usus), to
collect the fruit (fructus) and to dispose of it (abusus).174 Each of these rights
can be examined from a positive or a negative perspective.
The right to use the asset means that the owner can use it (for example,
drive his car or farm his land) or not use it (for example, leave the car in
the garage or leave the land to lie fallow175). He can also let it be used by
others, either by contract (e.g. lease) or by pure permission.176
The right to collect the fruit entitles the owner to have the asset produce natural fruit or legal fruit (i.e. income), and to become the owner of
these fruit. This covers all economic benefits of the property. The owner
also has the choice not to earn an income from the asset.
The right to dispose of the asset (le droit de disposer) has two aspects.177
From a material standpoint, the owner can change the substance of the asset or even destroy it. From a legal standpoint, the bearer of this right can
conclude legal transactions relating to its ownership.178 In other words, he
can abandon or sell the asset,179 dissociate various elements of the right of
172
173
174
175
176
177
178
179
See Carbonnier J., Droit civil, III, Les biens, PUF, 19e éd. 2000, n° 68: an owner
can do everything that is not prohibited; the holder of a real right can only do what
is allowed. – Comp., C. civ., art. 544: the right to do everything that is not prohibited. Ownership rights are akin to a form of freedom: they can only be limited by
exceptional rules and can both be abused as their use reflects a choice. See ZenatiCastaing F., Revet Th., Les biens, p. 314, n° 192.
See Zenati-Castaing F., Revet Th., Les biens, p. 314, n° 192.
Some authors have seen a contradiction between the full mastery of an asset and
the listing of these three fundamental rights (usus, fructus, abusus), which are only
an effect of the right of ownership: See Aubry et Rau, Droit civil français, t. II, 7e
éd.1961 par P. Esmein, § 190, p. 232. – Zenati-Castaing F., Revet Th., Les biens,
p. 313, n° 192.
Exception at C. rural, art. L 125-1.
Cass. 1e civ., 10 mars 1999: GAJC, 11e éd. 2000, Dalloz, n° 63.
The aspects treated here are aspects specific to property law. However the right to
dispose as such is an attribute of lagal personality, which is also linked to rules on
legal capacity. See, Zenati-Castaing F., Revet Th., Les biens, p. 337, n° 211.
Yet this right can be limited: CE, 25 mars 1966, Epx. Richet: Rec. p. 233; GADU, n° 31:
«le droit de propriété ne comporte pas le droit de procéder librement à un lotissement».
It must be noted that the right to dispose legally of an asset does not necessarily
mean that property on the asset may be transferred. Some things cannot be sold.
The owner may have rights he cannot transfer to others (guns, family property). See
infra 5.2.1: Specific goods.
38
France
property,180 or partly renounce some of his prerogatives over the asset (for
example, grant security rights in the asset).181
He can also create real rights to the asset by giving a third party a direct
right to the asset. This direct right in rem of the third party can be claimed
against all transferees of the asset, as long as this direct right exists.182 Such
a direct right can be a security right or an element of that right.
It must nevertheless be mentioned that French law does not allow the
owner to create a security right or interest by transfer of ownership, like
in German or Austrian law.183 Additionally, although the right to dispose
of goods is only conceivable for goods that can be put into circulation,
only very few limits can be imposed upon this circulation, such as constitutional184 and human rights rules,185 that however, even when creating
(strict) limitations, protect the right to dispose in a very strong way, as an
essential feature of ownership.
As ownership rights have an in rem effect, they are valid against third
parties without any restriction. In this respect, ownership rights have an
absolute effect.186 As to claims against third persons, the owner of an asset
has the right to follow the asset wherever it is (droit de suite).187 This means
in particular that the owner of an asset is entitled to claim the asset if it is
held by a third person.
If the third party holder is subject to an insolvency proceeding, the
owner of the asset has a number of privileged rights. Article L624-9 of the
Commercial Code188 provides that movables can be revindicated within a
period of three months from the publication of the initiation of the proceeding.189 In particular, if the asset is subject to a reservation of title, the
180
181
182
183
184
185
186
187
188
189
Cons. cons., n° 81-133, DC, 30 déc. 1981: Rec. p. 41.
Crocq P., Dix ans après: l’évolution récente des propriétés-garanties, in Ruptures,
mouvement et continuité du droit, Mélanges M. Gobert, Economica 2004, p. 347.
Comp. Obligatory rights which only apply to the patrimony of the debtor.
Legeais D., Les nouvelles fonctions de la propriété, in La propriété, Travaux de
Cons. const., 27 nov. 1959: D. 1960, 5, note Hamon. – Cons. const., 20 juil. 1983:
Rec., p. 49. – Cons. const., 4 juil. 1989: D. 1990, 209, note Luchaire. – Cons. const.,
29 juil. 1998: JO, 31 juil., p. 11710. – Cass., 1e civ., 4 janv. 1995: Bull. civ. I, n° 3.
CEDH, 13 juin 1979, Marckxx: A. 31, GA, n° 16, § 63.
Levis M., L’opposabilité du droit réel, Economica 1989, p. 11 and p. 12. – See supra
at 1.2.1 (a): Definitions and characteristics.
Former C. com., article L 621-115.
C. com., art. L 624-9 al. 1: « La revendication des meubles ne peut être exercée que dans
le délai de trois mois suivant la publication du jugement ouvrant la procédure. »
39
owner can revindicate his asset without having to lodge a claim in the
insolvency proceedings.190
Similar rules exist in the case of execution proceedings against the third
party holder.191
Nevertheless, persons other than the owner may have interests in the
property. This can be the case of creditors who have security rights, such
as a pledge.192
1.3.
Other property rights in movables
Under the heading “principal rights in rem”, there are two types as regards
movables. The fist includes usufruct rights and rights to use the asset. Usufruct rights to movable assets occur frequently. A typical example of such a
right is the usufruct right to company shares.
The second, accessory rights in rem, includes the pledge (gage), which
is the right to sell the asset if the debt guaranteed by the asset pledged is
not paid. There is also a right of retention,193 which allows the holder to
withhold physical possession of the asset as long as the debt is not paid.
French law does not acknowledge any other property rights in movables, like those included in German law.194
1.4.
The protection of property rights
1.4.1. Actions
The law accords various rights of action. In all cases hereafter, the remedies
are independent of each other and may be cumulated. Nevertheless, the
interaction among remedies in property law, unjust enrichment law and
tort law can be problematic. In general, property law prevails. Tort law only
covers situations that are not encompassed by property law. Unjust enrichment rights appear as subsidiary rights when no other action exists.
Disputes relating to ownership rights belong to the jurisdiction of the
Tribunal de grande instance (C. org. jud., art. R 311-1). As an exception, for
revindication of commercial assets in the context of an insolvency proceeding, commercial courts have jurisdiction (C. com., art. 624-9 seq.).
190
191
192
193
194
Cass. com., 11 mars 1997: Bull. civ. IV, n° 70.
Loi n° 91-650 du 9 juillet 1991 reforming civil enforcement proceedings.
See infra 1.3: Other property rights in movables.
See infra 19.4: The possessor’s right to retain the movable.
See supra 1.1.2: The French numerus clausus of property rights.
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40
If the action of revindication is successful, the possessor must surrender
the asset with all accessories, such as fruit and products, including those accrued after the dispossession of the owner. If restitution of the asset cannot
take place because the asset has been lost, the possessor must indemnify the
owner. There are however different case constellations.
If the loss is the fault of the possessor, he must pay the value of the asset
to the owner (C. civ., art. 1379).195 If the possessor was in bad faith, he
must pay the value of the asset even if the loss was accidental (cas fortuit).
If the asset has been sold by a possessor acting in good faith, the owner
only has a right to the price received.196 If the asset has been sold by a possessor acting in bad faith, the owner is entitled to be compensated for the
loss incurred, even if this loss is higher than the price obtained, or even if
there was no price.197
As to the fruit generated by the asset, they follow special rules. Until the
claim of revindication is raised, they belong to a possessor acting in good
faith, as compensation for having kept the asset. As soon as the claim of
revindication is registered in court, they belong to the owner. A possessor
acting in bad faith is not entitled to keep the fruit accrued at any time.
If the fruit can not be surrendered, their value in money at the time of
reimbursement is given as compensation. Fruit are always calculated with
a deduction for the costs incurred for the benefit of the asset (impenses).198
The possessor can always deduct the costs incurred in respect of the
asset (théorie des impenses), and no distinction is made whether he is acting in good or bad faith (C. civ., art. 1381).199 These costs include all
expenditures made in the interest of the asset, but also those that increased
the value of the asset.200 They do not include costs of maintenance or administration, as these are the counterpart of the use of the asset and are
199
195
196
197
198
199
200
C. civ., art. 1379: Where the asset unduly received is an immovable or a tangible
movable, the person who has received it binds himself to make restitution in kind,
if it exists, or of its value, if it has perished or deteriorated through his fault; he is
even guarantor of its loss by fortuitous event, if he received it in bad faith.
C. civ., art. 1380: Where the person who received in good faith has sold the asset,
he must make restitution only of the proceeds of the sale.
In such a case, there is an application of article 1382 of the Civil Code, where there
is a fault of the possessor acting in bad faith.
See, fructus non sunt nisi deductis impensis and fructus intelliguntur deductis impensis.
C. civ., art 1381: The person to whom an asset is restored must account, even to a
possessor acting in bad faith, for all the necessary and useful expenses which have
been incurred for the preservation of the asset. – Larroumet Ch., Les biens – Droits
réels principaux, p. 372, n° 665. – Cass. 3e civ., 12 mars 1985: Bull. civ. III, n° 50. –
Cass. 1e civ., 17 janv. 1990: D. 1990, inf. rap. p. 37.
Cass. 3e civ., 15 janv. 2003: JCP 2003, IV, 1394.
41
compensated by the fruit allotted to the possessor. The costs that can be
deducted must have been useful for the asset and have either preserved the
asset or improved it. Any costs that are considered to have been spent to
satisfy personal tastes of the possessor, or to add luxurious features (impenses
voluptaires), are not reimbursed.201 The sum to be reimbursed is the lower
of two amounts: the cost incurred or the value added to the asset, which
is calculated at the time of restitution.202 However, the value added to
the asset is not taken into consideration if the costs were incurred only to
maintain the asset (impense nécessaire).203
(a)
Actions with respect to ownership rights
French law distinguishes two types of actions with respect to property: the
right to “pure” restitution and the right of revindication. Pure restitution is
applicable if the right of the owner is not contested; revindication204 steps
in for contested ownership rights.
If the ownership right of the owner is not contested, any involuntary
dispossession is a clear case of unlawful disturbance (trouble manifestement illicite), which justifies the immediate return of the asset to the owner. Courts
thus simply order restitution of the asset to the owner.205 This action of
pure restitution is applied every time the rightful owner is prevented from
possessing his asset.
A situation not to be included in the present analysis is that in which
the holder of the asset is entitled to possession of the asset on the basis of a
contract (e.g. loan, lease or deposit). The rightful owner only has to establish the content of the contract that entitles him to demand restitution of
the asset from the holder. The restitutionary claim here is the exercise of
a personal contractual right against the holder, whereas revindication and
pure restitution are actions in rem.
Whenever the ownership right of the owner is disputed, he must prove
his right. Therefore, this is not a simple action for pure restitution, but a
specific action of revindication.
201
202
203
204
205
Larroumet Ch., Les biens – Droits réels principaux, p. 373, n° 665. – Cass. 3e civ.,
18 mai 1982: D. 1983, inf. rap. 14, obs. Robert.
Laroche M., Revendication et propriété – Du droit des procédures collectives au
droit des biens, préf. P. Théry, Thèses Défrenois 2007, tome 24. – Martin D. R., La
revendication des sommes d’argent, D. 2002, p. 3279.
See for example, C. com. art. L. 624-10 which prescribes this action for registered
goods in cases of insolvency. However this text is deemed to have general application.
42
France
The right to restitution is an action for recovery of property (action en
revendication – action pétitoire206), which only the lawful owner, or a beneficiary of a principle right in rem,207 can use. No specific provision of the Civil
Code regulates this right.208 Revindication both establishes the property
rights of the plaintiff and enables him to recover his property. This action
is not subject to the statute of limitations,209 unless the right to the asset
is itself subject to a time limit.210 The claim for recovery does not give its
beneficiary a right to self-help or a right to resort to force. If the possessor
or holder is unwilling to deliver the property to the owner, an action must
be brought in court.
This action can be taken against any holder of the asset, whether lawful possessor or otherwise, except in the case of corporeal movables,211
which cannot be revindicated, except if they have been stolen or lost,212
as the possessor acting in good faith immediately becomes owner (C. civ.,
art. 2276 – former C. civ., art 2279).213 This rule creates a presumption of
ownership that can be rebutted.
Nevertheless, the protection of article 2276 of the Civil Code only
applies to cases of acquisition a non domino. Additionally, the holder of
the asset must act in good faith, i.e. believe that he contracted with the
206
207
208
209
210
211
212
213
Zenati-Castaing F., Revet Th., Les biens, p. 318, n° 197, distinguishing different
types of actions to protect ownership: action confessoire (directed against the rightful owner where a third party wants his / her right to be recognized); action négatoire
(the rightful owner acts against a third party to deny the real rights the third party
pretends having).
The emphyteutic holder, the superficiary and the usufructuary.
Yet its existence derives from the principal caracteristics of property rights: See supra
1.2.1: Definitions and characteristics of ownership rights: exclusive, perpetual and
absolute rights.
Cass. 1e civ., 2 juin 1993: Bull. civ. I, n° 197. – Cass. 3e civ., 5 juin 2002: Bull. civ. III,
n° 129. – See however in insolvency proceedings the time limit of three months to
revindicate: C. com., art. L 624-9. – The right to revindicate is paralysed if another
person acquires rights on the asset due to acquisitive prescription. See infra 13: Rules
for acquisitive prescription.
Such is the case for patents and other intellectual property rights.
However, Zenati-Castaing F., Revet Th., Les biens, p. 319, n° 198: describing the
revindication of incorporeal rights such as patents and trademarks, and of businesses
(fonds de commerce). Claims can also be revindicated, if their ownership is disputed.
See in particular the case of a lost treasure, infra 2.2: Functions of possession.
See infra 12: Rules of good faith acquisition: The transferee thus becomes immediately owner through an original acquisition mechanism.
43
rightful owner. Good faith is required at the time of acquisition214 and it is
presumed (C. civ., art 2274).215
This action of revindication is available in case of the bankruptcy of
the possessor where the owner can claim the property of an asset to avoid
seizure by the creditors of the possessor (C. com., art. L 624-9). This is also
an application of the droit de suite principle.
Revindication fails if the owner brings a revindicatory action against
a possessor and cannot prove that the possessor is not the owner. Proof of
ownership can be adduced by any means.216
Revindication also fails when the defendant is entitled to possession
of the asset on the basis of a legal relationship with the rightful owner.
This is, for example, the case where the defendant has a lease of the asset,
granted by the rightful owner. Revindication fails also if the asset revindicated is commingled with another asset so as to make them indistinguishable (fongible).217
If the revindication succeeds against a possessor in good faith, this possessor has a number of rights in respect to the owner. In particular, natural
and civil fruit that have become due belong to the possessor acting in
good faith (C. civ., art. 549).218 The owner must also compensate any costs
expended on the asset.219 As long as a possessor, acting in good faith, has
not received the reimbursement of such costs, he has the right to retain
the asset.220
214
215
216
217
218
219
220
It is clear that the possessor will discover at some stage that the person who transferred the asset to him was not the rightful owner. From that moment, the possessor
will be acting in bad faith. This has no effect on the passing of ownership (mala fides
superveniens non nocet), but will be important if the possessor has to surrender the
asset. In this hypothesis, the possessor will also have to surrender the fruit of the
asset from the time of discovery of the rightful situation. See infra 19: Consequences
of restitution of the movable to the owner.
C. civ., art. 2274 (former C. civ., art. 2268): Good faith is always presumed, and it
is up to the person who alleges bad faith to prove it.
Cass. 1e civ., 11 janv. 2000: Bull. civ. I, n° 5.
However, Cass. com., 11 juil. 2006: RTD civ. 2006, 794, obs. Revet, allowing a wine
producer to revindicate grapes even though they had already entered the process of
winemaking and had been mingled with the grapes of other wine producers.
C. civ., art. 549: A mere possessor makes fruit his own only where he possesses in
good faith. If not, he is bound to restore the products with the asset to the owner
who claims it; where the said products are not found in kind, their value must be
appraised at the date of repayment.
Cass. 3e civ., 15 janv. 2003: Bull. civ. III, n° 7.
See infra 19.4: The possessor’s right to retain the movable.
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44
Nevertheless, a possessor who is not acting in good faith is obliged to
restore to the owner the natural and civil fruit that have become exigible,
but can deduct the costs he has incurred on the asset221 or the costs necessarily incurred in order to make the asset produce fruit.222
Additionally, there are a number of actions to protect the peaceful
possession of an asset (actions possessoires).223 Physical possession is protected in the sense that no one, not even the owner himself, can take
the asset against the possessor’s will. These actions are dealt with in civil
procedure,224 but do not, in general, apply to movable assets.225
(b)
Other means of protection
There is a general principle in French tort law that states any damage done
to a third party must be repaired, whether this damage was caused by wrongful behaviour or not (C. civ., art. 1382 and art. 1383).226 In this respect,
any damage caused to property must be repaired by those liable. Damages
to ownership rights are thus protected by these general rules of tort. As a
rule, any disturbance of ownership rights is wrongful behaviour.227
It would also be possible to ask for compensation if the asset has been
used by another person and thus the owner suffered from not being able to
use the asset himself (loss of use, loss of profit – damnum emergens, lucrum
cessans). In this case however, the extent of compensation depends on
whether the unlawful possessor had a just reason to believe he was entitled
to the use of the asset or whether he knew that he had no right.228 Therefore
the rules on evaluating the damages applicable in property law prevail over
the tort law rules.
221
222
223
224
225
226
227
228
Cass. 3e civ., 12 mars 1985: Bull civ. III, n° 50.
Cass. 3e civ., 5 juill. 1978: Bull. civ. III, n° 281.
See infra 2.4: Protection of possession. – These actions only apply to immovables:
Civ. 1e, 6 févr. 1996: Bull. civ. I, n° 57; RTD civ. 1996, chr. p.943, obs. Zenati.
C. proc. civ., art. 1264-1267. – Bergel J.-L., Bruschi M., Cimamoni S., Les biens,
p. 426 seq., n° 424-436.
See infra 1.4.2: Remedies. Even though, as a general principle, the owner of any
asset, whether movable or immovable, has no right to retrieve the asset from a possessor against the latter’s will.
C. civ., art. 1382: Any act whatever of man, which causes damage to another, obliges
the one by whose fault it occurred, to compensate it. – C. civ., art. 1383: Everyone
is liable for the damage he causes not only by his intentional act, but also by his
negligent conduct or by his imprudence.
See supra 1.4.1: Actions with respect to ownership rights – “théorie des impenses”.
45
There are also rules that protect property that suffers from abnormal
disturbance in the neighbourhood (troubles anormaux du voisinage), such as
abnormal noise or smoke produced by neighbours or smells from a neighbour’s garden.229 The right to protection applies to all possessors of the asset,
whether full owners or simple holders.230
In the same way, French law provides for compensation if a person’s
property suffers an undue loss, whereby somebody else benefits from this
loss. This is an action ex unjust enrichment (C. civ., art 1376: enrichissement sans cause231 – action de in rem verso).232 There are four pre-conditions
to this action: an enrichment of the defendant; an impoverishment of the
plaintiff; a causal relationship between this enrichment and impoverishment; an enrichment not justified by a legal mechanism (absence of a
causa).
Nevertheless, this action is available only if there is no other legal way
to obtain compensation (subsidiary principle). Additionally, the plaintiff
will be awarded compensation within the limits of the defendant’s current
enrichment. This means, in particular, that if the defendant has lost all
the benefits, which he previously obtained from the asset, the plaintiff will
be entitled to nothing. This action is useful in cases of accession, when an
asset becomes a component part of another asset belonging to somebody
else (see discussion on accession, infra 11.1).233
In the case of business property, French law protects the owner of a
business against unfair trading (concurrence déloyale).234
In criminal law, there are numerous texts that protect the owner from
unlawful dispossession of assets: the concepts of theft (vol)235 and embezzlement (abus de confiance)236 are applied to corporeal movables. Texts on
counterfeiting (contrefaçon)237 protect most incorporeal ownership rights,
229
230
231
232
233
234
235
236
237
See supra 1.2.1 (a): Definitions and characteristics of ownership rights.
Cass. 2e civ., 17 mars 2005: Bull. civ. II, n° 73; D. 2005, pan. 2357, obs. ReboulMaupin.
C. civ., art. 1376: He who receives by error or knowingly what is not owed to him
is bound to make restitution to the person from whom he has unduly received it.
Terré F., Simler Ph., Lequette Y., Les obligations, p. 1018, n° 1062 seq. – See also
articles 1376 seq. of the Civil Code. And also: Cass req., 15 juin 1892: DP 1892.
1596; S. 1893.1.281; Grands arrêts, 11e éd. 2000, n° 227.
See infra 11. 1: Accession of movables.
Blaise J.-B., Droit des affaires, p. 347, n° 653 seq.
C. pén., art 311-1: Le vol est la soustraction frauduleuse de la chose d’autrui.
C. pén., art. 314-1: (1) L’abus de confiance est le fait par une personne de détourner, au
préjudice d’autrui, des fonds, des valeurs ou un bien quelconque qui lui ont été remis et
qu’elle a acceptés à charge de les rendre, de les représenter ou d’en faire un usage déterminé.
See Code de la propriété intellectuelle.
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46
such as patents, trademarks and so forth. Notwithstanding criminal liability, the law thus permits the rightful owner to revindicate his asset.
1.4.2. Remedies
In addition to a damage award for various actions (see above 1.4.1), French
law provides for two kinds of injunctions that can be obtained from a judge
in ex-parte proceedings (injonction de faire238 and injonction de payer239). The
injunction de faire is a court decision that forces the defendant to do something, whereas the injunction de payer obliges the defendant to pay a debt.
Both types of court decisions are combined with a threat of financial penalties in case of non-performance.
There are also a number of actions that enable an owner or a possessor
to stop any damage from taking place (actions conservatoires). Although,
in the case of immovable property, the possessor can stop any building by
a neighbour that could damage his possession (dénonciation de nouvel oeuvre), there is no specific action in respect of movables. Courts can oblige a
person to cease interference under the threat of a fine (astreinte). All these
actions are dealt with in civil procedure and can be found in the Code of
civil procedure (Code de procedure civile).
1.5.
Transferability of movable assets
The right to transfer an asset is one of the main characteristics of the right
of ownership.240 The transfer of ownership is not the transmission of a simple “right” to the asset, but of full “ownership” of the asset.241
Any limitations of the transferability of an asset are contrary to the
public policy principle of the free circulation of goods. In particular, modern
French law prohibits the so-called institution of “la mainmorte”,242 where
238
239
240
241
C. proc. civ., art. 1425-1 seq.
C. proc. civ., art. 1405 seq.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 86 seq., n° 83-91.
Zenati-Castaing F., Revet Th., Les biens, p. 264, n° 167. This distinction is essential to understand the difference between the transfer of a right to use the asset and
the transfer of the asset in full ownership.The transfer of ownerhip is the transfer
of an objective attribute of the asset (the “belonging to” attribute) and not of the
subjective right of a person to use the asset (droit subjectif). – See also the distinction in the 1958 French Constitution (Article 34) between the right of ownership
(propriété) and real rights (droits réels).
47
goods belonging to certain organisations, such as churches, monasteries or
hospitals, were deemed before the French Revolution to be non-transferable.
Nevertheless, under French law, some goods cannot be transferred by
contract.243 This limitation applies to public property (biens du domaine
public),244 certain non-transferable rights (droits d’usage et d’habitation, C.
civ., articles 631 and 634),245 and also to certain specific goods (C. civ.,
art. 1128).246 Article 1128 of the Civil Code declares that only certain assets
can be the object of a contract.247 In application of this article, the courts
242
242
243
244
245
246
247
Conseil constitutionnel: Déc. 99-419 DC du 9 nov. 1999, JO 16 nov. 1999, p. 16962,
§ 86.
See in particular, art. 1128 and 1598 of the Civil Code. – Marty R., De
l’indisponibilité conventionnelle des biens, Petites affiches 21 et 22 nov. 2000,
n° 232, p. 4 et n° 233, p. 8.
Terré F., Simler Ph., Lequette Y., Droit civil, les obligations, Dalloz 9e éd. 2005,
p. 285, n° 277. – Formerly this was justified by: C. domaine, art. L. 52: « Les biens du
domaine public sont inaliénables et imprescriptibles ». See also, Civ. 1re, 2 mars 1994,
D. 1994, somm. p. 165, obs. A. Robert. This article has now disappeared from the
Code des domaines since 2006 but can be found under Article L 3111-1 and Article
L 3111-2 C. gén. de la prop. des pers. Pub. (CGPPP). – See also the general restriction
in C. civ., art. 537: (1) Private individuals have the free disposal of property which
belongs to them, subject to the modifications established by legislation. (2) Property
which does not belong to private individuals is administered and may be transferred
only in the forms and according to the rules which are peculiar to it. – David C.,
Pour une approche renouvelée du droit français de la domanialité publique, Petites
Affiches 2007, n° 165, p. 3. This was typically the case in the famous « Affaire de
l’étang Napoléon », where private ownership disappeared when the sea (domaine public maritime) flooded the pond and thus transformed the pond into public domain:
Civ. 3e, 29 févr. 1968: D. 1968, 454; RTD civ. 1968, 741, obs Bredin – Ass. plén., 23
juin 1972: D. 1972, 704; RTD civ., 1973, 147, obs. Bredin.
C. civ., art. 631: A user may neither transfer nor lease his right to another person.;
and C. civ. art. 634: A right of dwelling may not be transferred nor leased.
C. civ., art. 1128: Only assets which may be the subject matter of legal transactions
between private individuals may be the object of agreements.
Loiseau G., Typologie des choses hors du commerce, RTD civ. 2000, 47. – Galloux
J.-C., Réflexions sur la catégorie des choses hors du commerce: l’exemple des éléments et des produits du corps humain en droit français, 30 Les Cahiers du Droit,
1989. 1011. – Couturier I., Remarques sur quelques choses hors du commerce,
Petites affiches, 1993, n° 107, p. 7 et n° 110, p. 7. – Moine I., Les choses hors du commerce: une approche de la personne humaine juridique, préf. E. Loquin, LGDJ, 1997,
Bibl. dr. privé, t. 271. – Bénabent A., Droit civil, les obligations, Montchrestien, 10e
éd. 2005, p. 104, n° 146. – Paul F., Les choses qui sont dans le commerce au sens de
l’article 1128 du Code civil, préface J. Ghestin, LGDJ 2002, Bibl. dr. privé, t. 377.
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48
thus limit the transfer of any piece of the human body,248 of any part of a
tomb249 and of family heirlooms.250 This is also the case for game and fish
(during the periods when hunting and fishing are prohibited), tobacco,
gunpowder, arms, works of art251 and gold, whenever specific rules apply to
limit the transferability of these assets.252
In certain cases, a person may limit the transferability of an asset. In
general, this is done either unilaterally, by will, or contractually in the form
of a donation. Such clauses are valid under two legal conditions (C. civ.,
art. 900-1253).254 First, the limitation must be temporary. Second, the limitation must be justified by a “serious and legitimate” interest.255 Such a limit
254
248
249
250
251
252
253
254
255
See C. civ., art. 16-5 and Code de la santé publique, art. L 1211-1. – Edelman B.,
L’homme aux cellules d’or, D. 1989, chr. 225. – Hermitte M.-A., Le corps hors du
commerce, hors du marché, Arch. phil. dr. 1988, t. 33, p. 323. – Gobert M., Réflexions sur les sources du droit et les « principes » d’indisponibilité du corps humain
et de l’état des personnes: RTD civ. 1992, 489.
Civ., 11 avril 1938: DH 1938, 321. – Cass. 1e civ., 25 mars 1958: Bull. civ. I, n° 178. –
Except the contract where a person concedes the right to be burried in a tomb: Cass.
1e civ., 22 fév. 1972: D. 1972, 513, note R. Lindon.
Such family heirlooms can be jewelery, paintings, weapons, documents or letters.
Cass. 2e civ., 29 mars 1995: Bull. civ. II, n° 115: D. 1995, Somm. 330, obs. Grimaldi;
JCP 1995, II, 22477 note Hovasse-Banget; RTD civ. 1996, 420, obs. Zénati. – Cass.
1e civ., 29 nov. 1994: Bull. civ. I, n° 354. – Paris, 7 déc. 1987, D. 1988.182, note R.
Lindon; JCP 1988.II.21148, note J.-F. Barbiéri; RTD civ. 1989.119, obs. J. Patarin. –
Paris, 2 juill. 1993, JCP 1994.II.22191, note S. Hovasse-Banget. – Barbiéri J.-F., Les
souvenirs de famille, mythe ou réalité, JCP 1984, I, 3156. – Raynaud-Chanon M.,
Les souvenirs de famille, une étape vers la reconnaissance de la personnalité morale
de la famille, D. 1987, chr. 264. – Demogue R., Les souvenirs de famille et leur
condition juridique, RTD civ. 1928, 27.
Lhuilier, Les œuvres d’art, res sacrae?, RRJ 1998-2, p. 513.
C. civ., art. 900-1: (1) Clauses of inalienability concerning a property donated or
bequeathed are valid only where they are temporary and justified by a serious and
legitimate interest. Even in that case, a donee or legatee may be judicially authorized
to dispose of the property if the interest which justified the clause has disappeared
or if it happens that a more important interest so requires. (2) [repealed] (3) The
provisions of this Article do not prejudice gratuitous transfers granted to juridical
persons or even to natural persons responsible for forming juridical persons.
Morin M., Les clauses d’inalienabilité dans les donations et les testaments, Défr.
1971, art. 29982, p. 1185. – Corvest H., L’inaliénabilité conventionnelle, Défr.
1979, art. 32126, p. 1377.
The proof of such an interest lies with the person who prevails of the limitation to
transfer the asset (Cass. 1e civ., 15 juin 1994, Bull. civ. I, n° 211; JCP 1995, I, 3876
49
upon the transferability of an asset renders any subsequent transfer void.256
Nevertheless, the donee or the heir may be authorized by a court to waive
this limitation, if the underlying interest has disappeared or if a greater
interest prevails.257
The subsequent violation of such a clause by the donee would render
the donation revocable.258 If the clause was stipulated in the interest of a
third party, this party can ask the relevant court to declare the transfer void.
However, if the asset is sold to a third party acting in good faith, this third
party becomes the owner of the asset in application of article 2276 of the
Civil Code (former C. civ., article 2279).
The transferability of an asset may also be limited by a court. This is the
case in insolvency proceedings where certain rules limit the transferability
of the assets of a company during the insolvency proceeding.259
In French law, the general principle assessorium principale sequitur260
leads to the automatic transfer of accessories to the asset transferred.261
Accessories are assets that have a specific, close connection to another
261
256
257
258
259
260
261
n° 8, obs. Le Guidec; D. 1995, 342, note Leborgne, RTD civ. 1995, 667 obs. Patarin:
RTD civ. 1995, 919 obs. Zenati). The legitimate interest is viewed very broadly:
it can aim to keep the asset in the family (Cass. 1e civ., 20 nov. 1985: Bull. civ. I,
n° 313; Défrenois 1986, 472, obs Champenois; RTD civ. 1986, 620, obs. Patarin) or
simply protect the beneficiary from himself (Req. 11 juillet 1877: DP 1878, 1, 62).
Cass. 3e civ., 31 mai 2006, n° 05-10270. – Req., 9 mars 1868: S. 1868, 1, 204.
Cass., 1e civ., 10 juillet 1990: Bull. I n° 192 p. 136; Defrénois, 1991, n° 5, p. 272,
note F. Lucet. JCP, Ed. notariale et immobilière, 1991, p. 197, note P. Salvage; Le
Quotidien juridique, 1990, n° 139, p. 3, note M. Bourgeois. – Cass. 1e civ., 29 mai
2001: Bull. civ. I, n° 150; JCP 2001, I, 360, obs. Cabrillac; JCP 2002, I, 178, n° 10,
obs. Le Guidec; RTD civ. 2001, 644, obs Patarin.
Req. 13 juil. 1938: Gaz. Pal. 1938. 2. 714.
Guyon Y., L’inalienabilité en droit commercial, in Etudes à la mémoire d’Alain Sayag,
Droit et vie des affaires, Litec 1998, p. 267.
Roland H., Boyer L., Adages du droit français, Litec 4e éd. 1999, p. 1, n° 3. – And
C. civ., art. 696: (1) Where a person establishes an easement, he is deemed to grant
all that is necessary to use it.; C. civ., art. 1018: The asset bequeathed shall be
delivered with its necessary accessories, and in the state in which it stands on the
day of the death of the donor.; C. civ., art. 1615: The obligation to deliver the asset
includes its accessories and all that was designed for its perpetual use.; C. civ., art
1692: The sale or assignment of a claim includes the accessories of the claim, such
as suretyship, prior charges and mortgages.
Cashin-Ritaine E., Les cessions contractuelles de créances de sommes d’argent dans
les relations civiles et commerciales franco-allemandes, préf. Ranieri, Bibl. dr. privé
t. 348, LGDJ 2001, p. 339, n° 554 et suiv.
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50
asset.262 Yet only accessories that are not linked to personal attributes of
the transferor, and that are not non-transferable by decision of the parties,
can be transferred.
2.
Possession
In French law, the term « possession » refers to a factual situation: the effective power of a person over an asset.263 This term thus applies to the actual
behaviour of the holder of an asset.264 Generally, the possessor is also the
owner of the asset.265
Legally, possession exists through the combination of the so-called corpus and animus.266 Additionally four cumulative qualities are required to
give legal effect (effet utile) to the possession of a holder (C. civ., art. 2261,
former art. 2229).267 Possession must be peaceful,268 public,269 permanent270
and without ambiguity.271 Subsidiarily, good faith and a title deed also play
a role in ascertaining possession rights.
262
263
264
265
266
267
268
269
270
For an analysis of the notion: Cabrillac M., Les accessoires de la créance, Etudes
dédiées à Alex Weill, 1983, p. 107. M. Cabrillac considers an accessory as a right
defined by law or by the will of the parties that is beneficial for the use of the asset
and exclusively useful for this asset.
Malaurie Ph., Aynès L., Les biens, p. 137, n° 482. – Zenati-Castaing F., Revet
Th., Les biens, p. 647, n° 441 and p. 655, n° 448.
Malaurie Ph., Aynès L., Les biens, p. 137, n° 482 and p. 140, n° 488.
Malaurie Ph., Aynès L., Les biens, p. 138, n° 483. – Bergel J.-L., Bruschi M.,
Cimamoni S., Les biens, p. 144, n° 131.
See infra 2.1: Notion of possession.
C. civ., art. 2261 civ. – former art. 2229: In order to be allowed to prescribe, one must
have a continuous and uninterrupted, peaceful, public and unequivocal possession,
and in the capacity of an owner. – Zenati-Castaing F., Revet Th., Les biens, p. 659,
n° 452.
Possession must be obtained peacefully. Only the rightful owner can contest this
fact: Zenati-Castaing F., Revet Th., Les biens, p. 660, n° 452.
Civ. 1e, 4 mai 1977, Bull. civ. I, n° 205.
Req. 15 avr. 1890: S. 1891, 1, 342. – Civ., 21 juin 1978: D. 1978, IR, 246. – According to the Cour de cassation, there is discontinuity if “possession has not been
exercised in all occasions and at all times in which it should have been, taking into
account the nature of the asset, without any abnormal intervals of a certain length
which would be lacunae” (Civ., 11 janv. 1950: Bull. civ. I, n° 12; D. 1950, 125, note
Leonan). – Possession must be stable and permanent. This is presumed if possession
has started (C. civ. art 2264 – former C. civ. art. 2234): Zenati-Castaing F., Revet
Th., Les biens, p. 660, n° 452.
2. Possession
51
A title deed, i.e. a (written) legal act, is useful to transfer property to a
possessor or to create a right in rem for a quasi-possessor.272 This title deed
is not necessary to recognise possession of an asset,273 yet possession rights
are reinforced if the holder has a title deed.274 The deed therefore creates
an appearance of factual and legal ownership, and thus the holder has a
stronger right to the asset.275
In some cases, it is necessary to have a title deed.276 This is the case
when the right in rem can only have a contractual origin (i.e. a pledge).277
Furthermore, quasi-possession exists on the basis that the contract, i.e. the
deed, can be produced.278 This is also a requirement when the factual situation is not sufficiently clear to establish lawful possession.
Good faith at the time of the entry into possession (C. civ., art. 2275 –
former C. civ., art. 2269) is also taken into account to measure the effects
271
278
271
272
273
274
275
276
277
278
The possessor must behave as if he were entitled to hold the asset as a rightful owner
(Com., 18 oct. 1994: D. 1994, inf. rap., 249. – Cass. 1e civ., 14 mai 1996: D. 1996,
inf. rap., 147). For example, if two people live together it is difficult to determine
which of the users of an asset is its rightful owner and thus possesses the asset (Civ.
31 janv. 1900: DP 1900. 1. 281, note Poncet. – Com., 12 juil. 1948: S. 1949. 1. 19).
On the other hand, this situation can lead to a co-possession of the asset. See Voirin
P., Goubeaux G., Droit civil, p. 288, n° 645.
Even though, the possession of a right is in fact the possession of a right in rem on
an asset. See Terré F., Simler Ph., Les biens, p. 146, n° 153 and p. 155, n° 164.
This state of affairs must be distinguished from the fact that possession itself creates
entitlement (présomption de titre), especially when the contested asset is a movable
(see C. civ., art. 2276 (former C. civ., art. 2279): infra 12: Rules of good faith acquisition).
A contrario, Terré F., Simler Ph., Les biens, p. 419, n° 537.
Terré F., Simler Ph., Les biens, p. 421, n° 540-543. – It also is useful for proving
ownership, see Cass. 3e civ, 5 mai 1982: Bull. Civ. III, n° 116.
Depending on civil or commercial law, the proof of such a title must be written (civil
law) or can be any type of proof (commercial law: Cass. com., 25 fév. 1981: Bull. civ.
IV, n° 207).
C. civ., art. 2074 (former) – See the new text at C. civ. art. 2336 and 2337.
See the general rules on proof: C. civ., art. 1341 C. civ.: (1) A notarized deed or
an deed under private signature must be executed in all matters exceeding a sum or
value fixed by decree [€ 800], even for voluntary deposits, and no proof by witness
is allowed against or beyond the contents of these deeds, or as to what is alleged to
have been said before, at the time of, or after the deeds, although it is a question of
a lesser sum or value. (2) All of which without prejudice to what is prescribed in the
statutes relating to commerce.
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52
of possession.279 A person is acting in good faith, if he is convinced that
he has become the holder of the right through a valid title deed (C. civ.,
art. 550),280 even if ultimately the deed proves to be void. Good faith is
presumed (C. civ., art. 2268281).282 If the holder knows that he is not the
rightful owner of the asset, he is acting in bad faith. If the holder is acting
in bad faith, the effects of possession are limited.283
In certain cases, the simple physical holding of an asset (détention) can
give the holder a number of rights284. This is the case, in particular, when
the holder benefits from rights of retention (droit de rétention)285 as a form
of a security right.
2.1.
Notion of possession
2.1.1. Definitions
Possession in French law can be defined in two ways. First, the term possession refers to an act accomplished by the holder of an asset regardless of
whether this act relates to a right or not.286 Secondly, the term “possession”
relates to the acts generally performed by the owner of an asset.287 In other
terms, possession can be defined as the situation where a person performs
acts that appear to be the voluntary exercise of a right, whether or not this
person is entitled to use this right.287
Article 2255 (former C. civ., art. 2228) of the Civil Code288 describes
possession as “the holding or use of an asset or right that we have or enjoy
279
280
281
282
283
284
285
286
287
Malaurie Ph., Aynès L., Les biens, p. 168, n° 568-569. – The new text (C. civ.,
art. 2275) is however specifically in the section on acquisitive prescription of immovables, which was not the case of former C. civ., art. 2269.
Cass. 1e civ., 5 déc. 1960: Bull. civ. I, n° 527.
C. civ., art. 2274 (former C. civ., art. 2268): Good faith is always presumed, and it
is to the person who alleges bad faith to prove it.
Cass. civ., 11 janv. 1887: S. 1887, 1, 225.
In particular the possessor in bad faith does not become owner of the fruit of the
asset (see infra, 19.1: Entitlement to benefits).
See C. civ., art. 2278 (former C. civ., art. 2282) al. 2 on the protection of the simple
holder in the same way as a possessor.
Cabrillac M., Mouly Ch, Droit des sûretés, p. 473, n° 560 seq.
See in particular the fact that one of the elements of possession is the animus domini.
See also: Terré F., Simler Ph., Les biens, p. 150, n° 158. – Atias Ch., Les biens,
p. 199, n° 307.
2. Possession
53
ourselves or through another person who holds or enjoys this asset or right
in our name”. 288
Possession can refer to the use of the right of ownership, in which case
it is commonly referred to as the possession of an asset, or to the exercise
of a right. French rules on possession therefore recognise a “possession of
rights”, which is called quasi-possession.289 Yet, the possession of rights does
not involve the same set of rules as those applicable to possession of a tangible asset. For example, bona fide rules and rules on acquisitive prescription
do not apply to the possession of rights.290
2.1.2. Limits to possession
There are, however, some limits to possession. Only assets that can become
private property can be possessed.291 Thus are excluded from possession:
common things such as air and water of the sea, assets that can not be transferred (choses hors du commerce292), and public property (biens du domaine
public).293 In a similar manner, only assets that have been individualised
can be possessed, except when an asset is made up of a legal combination
of assets (universalité de droit) that links individual assets together to form
a new asset, a legal fiction.294
Thus almost all rights in rem can be possessed,295 such as ownership
rights, usufructuary rights, antichresis, pledge, and hereditary leases. Claims
294
288
289
290
291
292
293
294
295
C. civ. art. 2255 (former C. civ. art. 2228): Possession is the detention or enjoyment
of an asset or of a right which we hold or exercise by ourselves, or by another who
holds and exercises it in our name.
Voirin P., Goubeaux G., Droit civil, p. 289, n° 647. – Terré F., Simler Ph., Les
biens, p. 146, n° 153. – Pélissier A., Possession et meubles incorporels, préf. Cabrillac, Nouvelle biblothèque de thèses, vol. 8, Dalloz 2001. – Parance B., La possession
des biens incorporels, préf. Aynès, LGDJ, Bibl. Institut André Tunc, 2008, p. 69,
n° 77. – Zenati-Castaing F., Revet Th., Les biens, p. 654, n° 448.
See infra, 5.2.1: Specific goods – generic goods.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 143, n° 130 citing Cass. civ.,
26 janv. 1914: DP 1914.1.112; S. 1920.1.27. – Comp. infra 5.2.1: Specific goods –
generic goods.
Zenati-Castaing F., Revet Th., Les biens, p. 647, n° 441 states « all goods can, a
priori, be possessed whether they are corporeal or uncorporeal ».
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54
can also be possessed (C. civ. art. 1240296).297 As an exception, mortgage
rights cannot be possessed because the legislation does not protect the possession of such rights.298 This is also the case of hidden or partial easements
(servitudes discontinues et non apparentes).299
2.1.3. Components of possession
As mentioned above,300 possession exists through the combination of the
so-called corpus and animus. A person is considered to possess an asset when
he holds both factual power (pouvoir de fait) over the asset (corpus) and the
intention to act as if he were holder of the right (animus).301
The corpus element is the factual, material side of possession: it is the act
of possessing. The holder of an asset performs the same material acts that
the lawful owner of an asset would also perform.302 Sometimes the corpus
element is limited to having the opportunity of performing such acts.303
Yet, in general, the corpus can only be acquired by the accomplishment of
material acts.304 Possession always starts with a material act that enables a
person to deal with the asset in his exclusive interest. This act of possession
can be unilateral, and it is then called an “occupation du bien”.305 Possession
can also be transferred from one person to another, for instance by the act
of giving the keys of a car to the new possessor.306
296
297
298
299
300
301
302
303
304
305
306
C. civ., art. 1240: Payment made in good faith to one who was in possession of the
claim is valid, even if the possessor is afterwards dispossessed.
Contra, Voirin P., Goubeaux G., Droit civil, p. 289, n° 647: « la quasi possession ne
s’applique jamais aux droits de créance ».
Voirin P., Goubeaux G., Droit civil, p. 289, n° 647: this is also the case because the
owner of the asset still detains it.
C. civ., art. 690 et 691 a contrario.
See supra 2. Possession.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 145 n° 133. – Terré F., Simler
Ph., Les biens, p. 148, n° 155. – Atias Ch., Les biens, p. 198, n° 306. – Yet more
nuancé: Malaurie Ph., Aynès L., Les biens, p. 143, n° 493.
In the case of immovable property, it is possible to have a possession animo solo,
where there is no physical holding of an asset see infra same section.
Possession can not be acquired simply by accomplishing legal acts: Cass. civ., 14 nov.
1910: DP 1912, 1, p. 483. – Cass. civ., 13 déc. 1948: D. 1949, jurispr. p. 72; RTD civ.
1949, p. 28, obs. H. Solus. – Cass. 3e civ., 11 juin 1992: Bull. civ. III, n° 199, p. 122.
Atias Ch., Les biens, p. 197, n° 302. – See infra 11: Types of original acquisition.
Amiens, 24 oct. 1922: Gaz. Pal. 1922, 2, p. 677.
2. Possession
55
Sometimes the corpus element does not have to be accomplished by the
bearer, but can be performed by a third party acting in his name: it is then
a possession corpore alieno.307 This is the case when a tenant acts for the
lessor, or an employee acts for his employer. If two people live together, it
is difficult to determine which of the users of an asset is its rightful owner
and thus possesses the asset (ambiguity). As a result, this situation can lead
to a co-possession of the asset.308
It must be remarked that, if a person can possess a usufruct right as a
quasi-possessor, this person is deemed to hold a simple right of detention
with respect to the full property rights.309 In other terms, this person cannot acquire ownership (acquisitive prescription) with respect to the full
property rights by the simple passing of time.
The animus element refers to the psychological, immaterial side of possession: it is the intent to possess.310 The holder must perform the material
acts with the intention of behaving as the lawful holder of the right.311 Such
behaviour is referred to as animus domini. Generally, the rightful owner and
a thief will act in such a way. However, neither tenants, nor simple holders
have this intention to possess.
The animus domini is generally presumed from the use of the corpus.
It is because a person behaves as if he were the holder of a right that the
intention to possess is presumed to exist. Nevertheless, such an intention
can also result from a legal transaction. For example, this results from a
« traditio brevi manu »312 or from a « constitut possessoire ».313 The « traditio
brevi manu » situation reflects the circumstances where the material holder
of an asset becomes possessor after having bought it from its owner.314 The
animus domini changes, whereas the corpus remains identical, i.e. the material holder, who held the asset corpore alieno and for the owner, now holds
it for himself. 314
307
308
309
310
311
312
313
314
Likillimba G.-A., La possession corpore alieno, RTD civ. 2005, p. 1.
Malaurie Ph., Aynès L., Les biens, p. 142, n° 492.
Cass. req., 15 avr. 1890: DP 1890, 1, p. 188. – Cass. 1e civ., 20 déc. 1955: JCP G
1956, II, 9455, note A. Weill; Bull. civ. I, n° 453. – Cass. 1e civ., 18 juin 1959: JCP
G 1959, IV, p. 98. – Cass. 2e civ., 5 avr. 1960: Bull. civ. II, n° 252. – Cass. 1e civ.,
21 juin 1978: Gaz. Pal. 1978, 2, somm. p. 337. – Cass. 1e civ., 20 févr. 1996: JCP G
1996, IV, 872; Bull. civ. I, n° 96.
By ‘inverting’ the deed: Malaurie Ph., Aynès L., Les biens, p. 144, n° 494.
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56
In the case of a « constitut possessoire », the current possessor ceases to
possess the asset for himself, but starts to possess for someone else.315 This
happens every time an owner sells the asset, yet keeps the right to use
the asset, such as a usufruct right.316 Again, the corpus remains identical,
whereas the animus is modified by the legal transaction.
2.1.4. Presumptions with respect to possession
The law lays down a number of presumptions to make the proof of such
intention easier.
Article 2256 of the Civil Code (former C. civ., article 2230) notes:317
“one is always presumed to possess for oneself, as an owner, unless there is
proof that one has commenced possession for someone else”. In the same
way, if a person has the corpus, he is also presumed to have the animus. This
means, in particular, that if a person holds an asset (détention matérielle) and
wants to exercise a right in rem, it is presumed that his claim is lawful. Those
who contest this right must prove the contrary (C. civ. art. 1315318).319 This
presumption also means that the animus existing at the time the holder
entered into possession, is presumed to subsist after this time.320
Yet every taking of possession does not require a specific intention: the
general intention to possess is enough, i.e. by organising the capacity to
receive new possessions.321
315
316
317
318
319
320
321
Malaurie Ph., Aynès L., Les biens, p. 143, n° 493. – See also Terré F., Simler Ph.,
Les biens, p. 155, n° 164.
C. civ., art. 2256 (former C. civ., art. 2230): One is always presumed to possess for
oneself, and in the capacity of an owner, where it is not proved that one has begun
by possessing for another. – Cass. 1e civ., 23 oct. 1956: Bull. civ. I, n° 369. – Cass. 1e
civ., 7 févr. 1962: Bull. civ. I, n° 91. – Cass. 3e civ., 28 févr. 1978: D. 1978, inf. rap.,
p. 425.
C. civ., art. 1315: (1) A person who claims the performance of an obligation must
prove it. (2) Reciprocally, a person who claims to be released must substantiate the
payment or the fact which has produced the extinguishment of his obligation.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 152, n° 141. – Terré F., Simler Ph., Les biens, p. 157, n° 167.
For example, by installing a letterbox to receive post, one automatically becomes
possessor of the letters even if one ignores that these letters are in the box. – Terré
F., Simler Ph., Les biens, p. 151, n° 159.
2. Possession
57
2.1.5. Types of possession
In French law, as physical control (corpus) leads to presumed intention (animus), such physical control is sufficient to maintain possession. Possession
disappears when the possessor surrenders both his physical control (corpus)
of the asset and his intention (animus) to consider the asset as his own.322
Sometimes, possession can survive the loss of physical control (corpus)
of the asset. Yet this is possible only with respect to immovable assets (possession solo animo). In general, possession on movable assets is lost as soon
as physical control has been given up. It is to be noted that article 2264
(former C. civ. art. 2234) of the Civil Code323 lays down a presumption that
the current possessor, who proves having had possession at an earlier point
in time, is deemed to have possessed during the intermediate period of time.
In the case of immovable property, it is possible to have possession
animo solo, where there is no physical holding of an asset.324 This is not possible with respect to movable assets. Nevertheless, possession solo animo is
only possible if there is no obstacle to the possessor’s recovery of the corpus.
This is not the case when a third person possesses the asset.325 In fact, this
situation more often results from the non-use of an asset, rather than the
loss of the corpus.
On the other hand, the animus can be lost, even if the holder still has the
corpus. In this case, possession is lost, because the holder recognises the possession of a third party. This happens, for example, when an asset is sold, but
not yet delivered. The seller recognises that the asset does not belong to him
and agrees to hold the asset corpore alieno for the buyer (constitut possessoire).
On the contrary, it is much more difficult to go from precarious possession (holding) to simple possession. There is a “presumption of precariousness” that derives from article 2257 (former article 2231) of the Civil
Code.326 This applies typically to a tenant, who has the corpus, but not the
animus. The tenant cannot change this situation of his own initiative. It is
necessary to prove the change of situation by changing (‘inverting’) the ti322
323
324
325
326
C. civ., art. 2264 – former C. civ., art. 2234: A present possessor who proves that he
has formerly possessed, is presumed to have possessed during the intervening time,
unless there is proof to the contrary.
Terré F., Simler Ph., Les biens, p. 153, n° 161. – Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 149, n° 138.
Cass. civ., 29 mars 1929: DH 1929, 250; S. 1929.1.207. – Cass. 3e civ., 15 mars 1977:
Bull. civ. III, n° 121, p. 94.
C. civ., art. 2257 (former C. civ., art. 2231): Where one has begun by possessing for
another, one is always presumed to possess in the same capacity, unless there is proof
to the contrary.
58
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tle deed (C. civ., art. 2268327), i.e. by transferring ownership through a legal
transaction. This situation also applies to a custodian (C. civ., art. 2236328).
There is therefore a distinction between mere “detention” (physical
control) and “possession”. Only the possessor has the intention to keep the
asset as his own (subjective element). A person (detentor) who just holds
the object does not have such an intention. Therefore, mere detention can
never result in acquisitive prescription.329
In particular, an employee (using, for instance, a company car) does
not possess.330 Neither does a lessee (e.g. a person renting a car from a hire
car firm) or someone entitled to use a movable gratuitously. The same can
be said of a custodian or other person obliged to keep and / or take care
of an asset as an obligation accessory to another legal relationship (such
as a motor mechanic who takes over a car to repair it) and of a family
member or other household member who is allowed to use an asset. In all
these cases, the animus element is absent. The presumption of precariousness also applies to the heirs of a tenant,331 but not to those who have
acquired an asset acting in good faith332 with a legal title (acquisition a
non domino).333
The possessor must have the intention to possess; the intentions of
another person cannot render anyone a possessor, except in the cases of
minors, protected persons and agency.334
French law recognises only one type of possession through an intermediary. This is the case of possession corpore alieno (C. civ., C. civ., art. 2255 –
327
328
329
330
331
332
333
334
C. civ., art. 2268 (former C. civ. art. 2238): Nevertheless, the persons mentioned
in articles 2266 and 2267 [former articles 2236 and 2237] may prescribe where the
basis of their possession is reversed, either owing to a cause arising from a third party,
or by an adverse claim they have raised against the right of the owner.
C. civ., art. 2266 (former C. civ. art. 2236): (1) Those who possess for others never
acquire ownership by prescription, whatever the time elapsed may be. (2) Thus a
tenant, a depositary, a usufructuary, and all those who precariously hold the good or
the right of an owner, may not prescribe it.
See infra 13: Acquisitive prescription.
Simply because he knows that the car belongs to his employer and he does not have
the intention to keep the asset as his own. See Bergel J.-L., Bruschi M., Cimamoni
S., Les biens, p. 151, n° 140.
Cass. 3e civ., 16 nov. 1976: Gaz. Pal. 1977, 1, somm. 23; D.S. 1977, inf. rap. 85. –
Cass. 3e civ., 2 mai 1979: JCP G 79, IV, 221; Bull. civ. III, n° 97; D.S. 1979, inf.
rap. 408; Gaz. Pal. 1979, 2, somm. 418. – Cass. 1re civ., 9 déc. 1986: Bull. civ. I,
n° 291.
Cass. civ. 8 nov. 1880: D.P. 81, 1, 28; S. 81, 1, 52.
See infra 12: Rules of good faith acquisition.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 147, n° 136 a contrario.
2. Possession
59
former C. civ., art. 2228).335 It is to be remarked that French law is not as
fine-tuned as German law. Legal scholarship does not distinguish different
criteria of possession such as the intensity of the relationship to the asset,336
the intentions of the persons involved337 or the social dependence of the
person physically holding the asset to the possessor.338
Possession corpore alieno is possible, because possession as such is not a
legal transaction, but a mere material act in respect to assets.339 This material act can be accomplished by a third party, yet this intermediary does
not necessarily represent the possessor. This is, for example, the case of a
usufructuary,340 of a lessee341 or of a seller342 who has not yet delivered the
goods. This intermediary simply holds the asset without the intention to
act as an owner. He therefore recognises that someone else is the owner
of the asset and that by holding the asset, he performs the act of corpus of
this owner. The holder, on the other hand does not act for this owner, but
simply uses his own rights to the asset.343
As a result, it is also possible to conclude a contract of agency where the
agent takes possession of an asset for the principal. In this case, the agent
acts for the owner. Nevertheless, only the person “for whom” the object is
kept is considered to be “in possession”.344
335
336
337
338
339
340
341
342
343
344
Cass. 1e civ., 16 janv. 1980: JCP G 1980, IV, p. 124; Bull. civ. I, n° 31. – Cass. 1e civ.,
3 nov. 1981: JCP G 1982, IV, p. 33; Bull. civ. I, n° 324.
Actual physical control (in German law: “unmittelbarer Besitz”) – or control only
through another person physically holding the asset (“mittelbarer Besitz”). The intermediary is called “Besitzmittler” in German law, he is “unmittelbarer Besitzer” himself.
Possessing the asset “as one’s own” (German law: “Eigenbesitz”; e.g. the owner, the
thief) – or possessing the asset with the intention of someone having some right to
use or otherwise hold the asset (“Fremdbesitz”; e.g. the lessee, custodian).
The intermediary is called “Besitzdiener”.
Cass. 3e civ., 21 mars 1984: Bull. civ. III, n° 78; D. 1984, inf. rap. p. 425, obs. Robert.
The usufructuary possesses for the full owner.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 146, n° 134, p. 151, n° 139. –
Cass. 3e civ., 8 déc. 1976: Bull. civ. III, n° 449.
Cass. 3e civ., 16 nov. 1976: Gaz. Pal. 1977, 1, somm. 23; D.S. 1977, inf. rap. 85.
See constitut possessoire, supra in this section.
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60
2.2.
Functions of possession
Rules on possession have many functions in French law.345 On the one
hand, these rules serve the public interest by maintaining public peace (see
the theory of Savigny346). The owner cannot evict the possessor. He must
first prove his ownership. Until then the possessor cannot be disturbed.
This means that conflicts concerning ownership do not change the actual
situation until the courts render their decision.
The rules on possession also have a social function by promoting social
and economic interests (see Ihering’s theory347). In this case, the rules on
possession tend to protect the possessor, the actual user of the asset, as
against the owner who has neglected his asset.348
On the other hand, rules on possession limit the uncertainty of the
right of property. It is impossible to prove the origin of ownership (probatio
diabolica), because this would entail going back to times immemorial.349
Thus, French law protects the owner because he is also the possessor. As
a result, the possessor is presumed to be the owner350 and possession has a
probative function.351 This presumption (presomption simple) can however
be rebutted in most cases.352
The rules on possession also protect third parties because they can rely
on the appearance given by factual possession without having to check
whether this appearance corresponds to a legal reality. Rules on possession
therefore create a legal appearance.353 This aspect is very important when
345
346
347
348
349
350
351
352
Zenati-Castaing F., Revet Th., Les biens, p. 648, n° 443, distinguishing essentially
two roles: a peace keeping function (natural possession or simple detention) and a
function as ancillary to ownership rights (civil possession). See also p. 657, n° 450.
Savigny K. F., Le droit de la possession, Vienne, 7e éd. 1865, p. 7 s. – ZenatiCastaing F., Revet Th., Les biens, p. 648, n° 441.
Ihéring R., Fondement de la protection possessoire, Iéna, 2e éd. 1869, p. 54.
Trigeaud J. M., La possession des biens immobiliers, Economica 1981, n° 443 s.
Dross W., Le singulier destin de l’article 2279 du code civil, RTD civ. 2006, chr.
p. 27.
Zenati-Castaing F., Revet Th., Les biens, p. 662, n° 456: however, this proof only
is effective in the relationship of the possessor and third parties. In the relationship
with the transferor of an asset or a right, possession needs to be confirmed by a title:
“l’effet acquisitif de la possession des meubles n’a lieu qu’au profit de l’ayant cause d’un
auteur non propriétaire. Dans les autres cas, la revendication demeure possible, mais le
défendeur n’aura pas à produire un titre pour justifier de son origine de propriété, sa seule
possession suffisant à cet effet”.
If rebuttal is not possible, the possessor is deemed having acquired the asset for good:
2. Possession
61
a legal transaction can change the rights to an asset without any formality
or publication of the transfer.
Nevertheless, the function of possession rules is less important when a
transfer of rights must be published.354
Rules on possession tend to enable the transfer of ownership in the case
of movables if the possessor is acting in good faith. Therefore, the legal effects of possession depend on whether this possession is bona fide or not,355
although good faith is presumed (C. civ., art. 2274 – former art. 2268).
If the ownership of an asset is contested (procès pétitoire), the possessor is
presumed to be the owner. He therefore is always the defendant in a lawsuit
concerning ownership.356 If the plaintiff cannot prove either his ownership
or that the defendant’s possession has been vitiated, the defendant remains
in possession without having to prove his own right of property.357
Until the law of June 17, 2008,358 if possession lasted thirty years, the
possessor, even acting in bad faith, gained ownership (usucapion).359 For
certain movable assets, the possessor gained immediate ownership at the
time he entered into possession, if he was acting in good faith.360 This
system has been modified by the aforementioned law. Article 2258 of the
Civil Code now states:
353
“Acquisitive prescription is a way of becoming the owner of a good or a right
by way of possession, where the person claiming acquisition is not required to
provide a deed nor subject to any defence of bad faith”.
353
354
355
356
357
358
359
360
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 158, n° 148. – Zenati-Castaing F., Revet Th., Les biens, p. 647, n° 442 states that the main function of possession is to publish the relationship between a person and a legal good.
By way of comparison, in the case of immovable assets, possession is protected by
specific court actions (complainte, dénonciation de nouvel oeuvre and réintégrande):
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 435, n° 433 seq.
The loi n° 2008-561 du 17 juin 2008 portant réforme de la prescription en matière civile
(in force as of 19th of June 2008). – Amrani-Mekki, Liberté, simplicité, efficacité,
la nouvelle devise de la prescription?, JCP 2008. I. 160. – Mignot, Aperçu critique
de l’avant-projet de loi sur la prescription, RRJ 2007. 1639.
See infra 13: Acquisitive prescription. – See former C. civ., art. 2262: All claims,
in rem as well as in personam, are prescribed by thirty years, without the person who
alleges that prescription being obliged to adduce a title, or a plea resulting from bad
faith being allowed to be set up against him.
Zenati-Castaing F., Revet Th., Les biens, p. 661, n° 454. – See infra 12: Rules of
good faith acquisition.
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Possession therefore has a function of creating a legal position as it is a
requirement for the acquisition of ownership by acquisitive prescription.
The new law, now clearly distinguishes between movable and immovable
property. The right to reclaim movables lapses after five years (C. civ.,
art. 2224 new version361). The right to reclaim immovables lapses after thirty
years (C. civ., art. 2227 new version362). In the case of certain movable assets, the possessor still gains immediate ownership at the time he enters into
possession, if he was acting in good faith at that time (C. civ., art. 2276 –
former C. civ., art. 2279).
If the possessor acts in good faith, he also becomes the owner of the
income produced by the asset (C. civ., art. 549363).364 This means that, even
if the rightful owner claims the asset, the possessor in good faith does not
have to return the income.
French law distinguishes two types of original acquisition of ownership
through possession: the so-called “occupation” and the so-called “invention”.
In the case of occupation, assets that have no owner (choses non appropriées, res derelictae or res nullius) can be possessed and as a result, the new
holder automatically becomes the owner.365 The new owner therefore has
an original right of property. This type of acquisition of property can only
apply to corporeal assets.366
The concept of “invention” applies to the case where a person finds, by
chance,367 a hidden movable asset,368 to which nobody can prove property
361
362
363
364
365
366
367
368
C. civ., art 2224: Personal or movable claims lapse five years after the day the holder
of a right knew or should have known the facts that would have allowed him to act.
C. civ., art. 2227: Ownership rights cannot lapse. Within this limit, immovable
claims lapse thirty years after the day the holder of a right knew or should have
known the facts that would have allowed him to act.
C. civ., art. 549: A mere possessor makes fruit his own only where he possesses in
good faith. If not, he is bound to restore the products with the asset to the owner
who claims it; where the said products are not found in kind, their value must be
appraised at the date of repayment.
See infra 19.1: Entitlement to benefits resulting from the movable. – Bergel J.-L.,
Bruschi M., Cimamoni S., Les biens, p. 161, n° 151.
See infra 11: Types of original acquisition. – Bergel J.-L., Bruschi M., Cimamoni
S., Les biens, p. 247, n° 236, with further references.
Cass. crim., 20 nov. 1990: Bull. crim. n° 395.
T. civ. St Sever, 15 juill. 1898: Gaz Pal. 1898, 2, p. 320. – CA Bologne, 21 juin 1901:
S. 1903, 4, p. 23. – TGI Millau, 26 mai 1988: Juris-Data n° 050954. – Malaurie
Ph., Aynès L., Les biens, p. 182, n° 593. – Terré F., Simler Ph., Les biens, p. 333,
n° 419.
2. Possession
63
rights (C. civ., art. 716369).370 Property rights vary in line with where the
so called “treasure” (trésor) has been found. If the treasure was found on
private premises, it is shared with the owner of those premises, if that person
is unable to prove any property rights to the asset.371
Possession also has a liability function in French law. Under article 1384
al. 1 of the Civil Code, if an asset, movable or not, is controlled by a person,
this person is liable for any loss / damage that this asset might cause.372 A
similar rule lies at the root of the liability of the possessor of an animal, i.e.
the person controlling the behaviour of the animal (C. civ., art. 1385).
2.3.
Acquisition of possession
Since possession is acquired by the combination of corpus and animus (see
discussion 2.0, above), according to French law, it is necessary to fulfil both
requirements in ways that represent the prerogatives of the right that is
used, i.e. use the asset in the way it should be used. It is not necessary that
the possessor take hold of the asset. It is sufficient that he has the present
possibility to do so.
French law recognises different forms of acquisition of possession. Possession can, of course, be acquired by transfer, by which the former possessor transfers possession to the current possessor. This is not a consensual
agreement, but implies a “real” act (“traditio”), physically materialising the
transfer. In this respect, the new possessor obtains actual physical power
over the asset (corpus).
To benefit from the legal effects of possession, it is sufficient to prove
that one has the corpus. However, the possessor must also have the intention to possess; the intention of another person cannot render someone a
possessor, except in the cases of minors, protected persons and agency.373
369
370
371
372
373
C. civ., art. 716: (1) Ownership of a treasure belongs to the person who discovers
it on his own tenement; where a treasure is discovered on another’s tenement, one
half of it belongs to the person who discovered it, and the other half to the owner
of the tenement. (2) A treasure is any hidden or buried asset of which nobody can
prove ownership and which is discovered by mere chance.
Cass. 1e civ., 19 nov. 2002: Bull. civ. I, n° 279.
A treasure is necessarily a forgotten movable asset: T. corr. Paris, 10 janv. 1949: JCP
G 1949, II, 5023, note M. Le Roy.
Cass. Ch. réunis, 2 déc. 1941, arrêt Franck: GAJC 11e éd. n° 194. – Cass. 2e civ.,
11 fév. 1999: RCA 1999, n° 96. – Cass. 2e civ., 12 déc. 2002: Bull. civ. II, n° 288:
liability of a lessee.
See supra 2.1: Notion of possession.
France
64
Physical control over the asset leads to the presumed intention to possess,
the animus.374
Nevertheless, it is not necessary that every act of possession be preceded
by a specific intention to possess. If the possessor has organised a mechanism for receipt of new possessions, like having a letterbox with his name
on it, the general intention to possess everything that goes into the letterbox is enough.375 Possession can also be transferred by symbolic delivery.376
This would be the case where the new possessor obtains the possibility to
use the asset, e.g. by receiving the keys of a car or the license documents of
a boat (traditio per instrumentum).
When possession is held through a third party, it is possible to transfer
possession by giving orders to this third party, who then holds for the new
possessor.377 This is the traditio brevi manu. Only the intention (animus)
changes without any modification of the corpus.
Possession can also be transferred by constitutum possessorium. This is a
form of possession corpore alieno,378 where the corpus is held through another person. French law recognises the possibility of concluding a “constitut
possessoire”, a contract in which the alienator recognises that he possesses
the asset for the account of the buyer. In this situation, it is necessary that
the holder of the asset recognises the rights of the possessor.
Possession is lost if a person loses the corpus and the animus. This happens when this person sells the asset or abandons it. If the possessor loses
the corpus of a movable asset, i.e. the faculty to use the asset (by loss or
theft), he loses the possession of this asset. Yet for immovable assets, it is
possible to remain possessor solo animo for a short period of time (one year).
This exception does not apply to movable assets.
The animus can be lost if a person recognises the right of another person to the asset. He then becomes a simple holder of the asset (détenteur
précaire379).
Possession can also be acquired by so-called occupation.380
374
375
376
377
378
379
380
The tenant, the depositary, the usufructuary, the emphyteutic owner.
See supra 2.2: Functions of possession.
2. Possession
2.4.
65
Protection of possession
There are specific rules in French law on the protection of possession, yet
they only apply to immovable property.381 In the case of movables, because
of the fact that article 2276 (former C. civ., art. 2279) of the Civil Code
presumes that the possessor of a movable corporeal asset is also the owner
of this asset, the possessor automatically benefits from the protection of
ownership rights.
The legal rules on the protection of possession apply to a possessor, a
co-possessor,382 a tenant in common (indivisaire),383 a usufructuary,384 and to
a simple holder of the asset (C. civ., art. 2278, former C. civ., art. 2282).385
Possession is only protected if it is peaceful.386 It is not protected in a
legal conflict with the rightful owner.
Article 2276 of the Civil Code (former C. Civ., art. 2279) entitles the
possessor to claim ownership of the asset in accordance with the maxim:
“en fait de meubles, possession vaut titre”. The plaintiff must then prove that
the possessor does not have lawful possession (lack of good faith or tainted
possession)387 However, this rule only applies to movable corporeal assets,388
381
382
383
384
385
386
387
388
Cass. 1e civ., 6 févr. 1996: Bull. civ. I, n° 57; RTD civ. 1996, p. 943, obs. Z. Zénati;
Procédures 1996, comm. n° 217, obs. R. Perrot. – Zenati-Castaing F., Revet Th.,
Les biens, p. 699, n° 490.
Cass. 1e civ., 3 juill. 1962: D.S. 1962, 568.
Cass. 3e civ., 29 mai 1968: Bull. civ. III, n° 244. – Cass. 3e civ., 20 nov. 1973: Bull.
civ. III, n° 585. – Cass. 1e civ., 15 avril 1980: RTD civ. 1981, 173, obs. Giverdon;
Defrénois 1981, art. 32520, p. 112, observ. Breton. – Cass. 3e civ., 9 mars 1982: Bull.
civ. III, n° 63; Gaz. Pal. 1982, 2, pan. jur. 217, note A. Piedelièvre; Rev. dr. imm.
1983, 36, obs. Bergel.
TI Tours, 21 fév. 1984: JCP G 1985, IV, 213.
C. civ., art. 2278, – former C. civ., art. 2282: (1) Possession is protected, regardless
of the substance of the right, against disturbance which affects or threatens it. (2)
Protection of possession is also granted to a person who holds an asset against all
other than the one from whom he holds his rights.
Some court cases speak of peaceful possession: Cass. 3e civ., 18 mai 1982: JCP G
1982, IV, 263; D.S. 1982, inf. rap. 403; Gaz. Pal. 1982, 2, pan. jur. 313, obs. A.
Piedelièvre. – Other cases also require a public possession. See, for example: Cass.
1e civ., 21 oct. 1980: Gaz. Pal. 1981, 1, somm. 65; D.S. 1981, inf. rap. 229, obs. A.
Robert. – Others again protect a useful possession (possession utile): Cass. 3e civ., 12
oct. 1983: Bull. civ. III, n° 184; JCP G 1983, IV, 345; D.S. 1984, inf. rap. 429, obs.
A. Robert. – Cass. 3e civ., 24 janv. 1978: Gaz. Pal. 1978, 1, somm. 161.
Cass. req., 25 nov. 1929: D.H. 1930, 3. – Cass. com., 19 janv. 1960: Bull. civ. III,
n° 30; JCP 1960, éd. G, IV, 34. – For example, in the case of animals, Cass. 1e civ.,
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France
and then again not to all corporeal assets,389 such as corporeal assets that
are registered.390 This can be explained because the transfer of such assets
implies compliance with certain written and published procedures. Nevertheless, as an exception to this exclusion, although cars are registered,
their possession is protected by article 2276 of the Civil Code (former C.
civ., art. 2279).391
If an asset is incorporeal, the rule of article 2276 of the Civil Code does
not apply. There is no protection of quasi-possession, i.e. the possession of
rights such as claims,392 usufruct rights, and rights to securities,393 stocks and
bonds. This exception also includes intellectual property rights.394
Nevertheless, as an exception to the general rule, protection of possession of movable assets is possible in respect of lost and stolen assets.395
In a similar way, courts protect the possession of three types of movables
(immeubles par destination,396 meubles accessoires d’un immeuble397 and meu-
389
390
391
392
393
394
395
396
397
14 déc. 1971: JCP 1972, II, 17102, note Goubeaux, possession of a horse. – Cass. 1e
civ., 21 janv. 1964: Bull. civ. I, n° 38, possession of a cow. – A painting: Cass. 1re civ.,
24 nov. 1970: Bull. civ. I, n° 312; D.S. 1971, somm. 54. – Orléans, 17 mars 1965: JCP
1965, II, 14186, note Boursigot. – A piece of jewellery: Paris, 19 janv. 1933: S. 1933,
2, 134. – Paris, 17 mars 1954: D. 1954, somm. 60. – Furniture: Paris, 15 fév. 1961:
D. 1961, somm. 43. – A contrario, all immovable goods are excluded: Cass. 3e civ.,
4 juill. 1968: Gaz. Pal. 1968, 2, 298; JCP G 1968, IV, 147; RTD civ. 1969, p. 144,
obs. Bredin. – Cass. com. 19 janv. 1960: Bull. civ. III, n° 30; JCP 1960, éd. G, IV, 34.
For instance goods that are public property, such as museum pieces: T. corr. Montluçon, 29 sept. 1965: D.S. 1965, 774, note Delpech; RTD civ. 1966, p. 109, observ.
Bredin. – Cass. req., 17 juin 1896: D.P. 1897, 1, 257. – Cass. 1re civ., 2 avril 1963:
Bull. civ. I, n° 203. – Paris, 18 août 1851: D.P. 52, 2, 96. – Dijon, 3 mars 1886: D.P.
87, 2, 253. – Nîmes, 4 déc. 1944: D. 1946, 28, note Waline. – Or library collections:
Paris, 3 janv. 1846: D.P. 46, 2, 212 autographs from Molière.
For example, boats: Cass. com. 20 nov. 1951: Bull. civ. II, n° 340. – Le Brun, En fait
de yacht possession vaut titre, Dr. mar. fr. 1949, p. 355.
Registration of cars is considered to be a simple administrative measure. – Jauffret
C., La vente d’automobile d’occasion: l’automobile en droit privé, p. 67, n° 7. – Also
Bénabent A., commenting, Cass. 1re civ., 5 oct. 1972: JCP 1973, II, 17485.
Cass. civ., 2 déc. 1856: D.P. 1856, 1, 443.
Cass. civ., 4 juill. 1876: D.P. 1877, 1, 33.
Cass. civ., 26 fév. 1919: D.P. 1923, 1, 215. – T. civ. Seine, 15 nov. 1927: D.P. 1928,
2, 89, note Nast. – Paris, 17 avril 1956: D. 1956, 530, note Ripert.
Cuilleron M., Revendication des meubles perdus ou volés et protection possessoire,
RTD civ. 1986, p. 504.
Cass. civ., 14 nov. 1849: DP 1850, 1, p. 10. – See also supra 1.1.1 (b): Characteristics
of rights in rem in contrast to obligations.
Cass. 1e civ., 25 nov. 1959: Bull. civ. I, n° 497.
67
bles par anticipation398).399 Rules on the possession of immovables therefore
exceptionally apply.
As there are no specific rules on the protection of the possession of
movable assets, French law does not have any specific procedure, except
the rules of article 2276 al. 2 (new) of the Civil Code that apply to the
loss of possession through theft or loss. Yet, under the general rules on
civil liability (C. civ., art. 1382400), the possessor is nevertheless entitled
to damages for the deterioration and for the loss he suffered as a result of
not being able to use the asset.
French law protects possession, in general, by means of three procedures. These procedures, named “actions possessoires”, are judged by the
Tribunal de Grande Instance (C.org. jud., art. L 312-7), but they only apply
to immovables. Possession of movables is protected by ownership actions.
There are no specific, set procedures.
2.5.
Self-help
French law does not recognise any form of self help. Any action must be
brought in court.
3.
Nature of the various rights to hold or to
acquire a movable
3.1.
The right to hold a movable
In French law, rights to possess401 or to acquire a movable are directly linked
to the right of ownership.
If a person has a right to possess a movable, this right can result from
three situations. First, whenever the person is the owner of the asset, he is,
of course, entitled to possess it. The right to possess the movable is thus a
right in rem. Secondly, sometimes a person possesses an asset for the owner
because there is a contract between the owner and this person. In this
case, the right is an obligatory right. This applies to leases, loans and depository contracts. Thirdly and finally, when a person possesses the movable
398
399
400
401
T. civ. Sancerre, 17 mai 1951: D. 1951, 646.
Cass. req., 21 juill. 1892: D.P. 1892, 1, 455.
C. civ., art. 1382: Any act whatever of a person, which causes damage to another,
obliges the one by whose fault it occurred, to compensate it.
The term « possess » is used here in a non technical manner and means inter alia the
holding of a movable.
68
France
as security for a debt, then this person has an accessory right in rem. This
accessory right in rem is protected in the case of bankruptcy of the debtor.402
The possessor has an obligatory right whenever there is a contract between the owner and the possessor. Leases fall within this category. In
particular, article 1709 of the Civil Code403 provides that a lease is a contract by which one of the parties promises to allow the other party to use
an asset for a fixed duration and for a certain price. This contract creates
only obligatory rights between the lessor and the lessee. Articles 1719 and
1720 of the Civil Code404 provide that the lessor405 is obliged to deliver the
leased assets in a good condition of maintenance and to enable the lessee
to use the asset peacefully. The lessee406 is obliged to pay the rent (C. civ.,
art. 1728407) and to use the asset carefully (“user de la chose en bon père de
famille”).
As an exception, French law grants specific protection to long term
leases, which is similar to the protection given by rights in rem.408 Additionally, in the so-called bail à contruction (C. constr. et habit., art. L 251-1 seq.),
402
403
404
405
406
407
408
Example: C. com., article L 643-2.
C. civ., article 1709: The hiring of assets is a contract by which one of the parties binds himself to have the other enjoy an asset during a certain time, and at a
certain price which the latter binds himself to pay him. – Collart Dutilleul F.,
Delebecque Ph., Contrats civils et commerciaux, p. 352, n°409 seq. on leases of
movable assets.
C. civ., art. 1719: A lessor is bound, by the nature of the contract, and without need
of any particular stipulation: 1° To deliver the asset leased to the lessee “and, where
the main dwelling of the latter is concerned, a decent lodging” 2° To maintain that
asset in order so that it can serve the use for which it has been let; 3° To secure to
the lessee a peaceful enjoyment for the duration of the lease; 4° To secure also the
permanence and quality of plantings. – C. civ., art. 1720: (1) A lessor is bound to
deliver the asset in good repair of whatever character. (2) He must, during the term
of the lease, make all the repairs which may become necessary, other than those
incumbent upon lessees.
Huet J., Les principaux contrats spéciaux, p.738 seq., n° 21160 seq. – Collart
Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, p. 410, n° 491 seq.
Huet J., Les principaux contrats spéciaux, Traité de droit civil sous la dir. de J.
Ghestin, LGDJ 2e éd 2001, p. 764 seq., n° 21176 seq. – Collart Dutilleul F.,
Delebecque Ph., Contrats civils et commerciaux, p.392, n° 472 seq.
C. civ., art 1728: A lessee is bound to two main obligations: 1° To make use of the
asset leased as a prudent administrator and according to the purposes intended by the
lease, or according to those presumed under the circumstances, failing an agreement;
2° To pay the rent at the agreed times.
For example, leases that last longer than 12 years must be registered at the « Conservation des hypothèques ». – See Huet J., Les principaux contrats spéciaux, Traité de
69
the lessee has an “immovable” right in rem to the asset for the duration of
the lease.409 However, both these leases only apply to immovables.410
In a similar way, for short term leases, the lessee, as a simple possessor
with obligatory rights, has been given the same kind of protection against
infringements by third parties, as has the possessor or the owner of an asset.411 However, this is not a protection in rem, but only a possessory shield
against material infringements by third parties.
Two specific contracts should be mentioned here, because of their hybrid status of so-called “real contracts” (contrat réel). The first kind of such a
real contract is the “depository contract”,412 where the contract only comes
into existence by the physical transmission of the goods. This contract is
considered to be a “real contract” by virtue of the means of its formation.
Yet, this contract generates only obligatory rights. It can be defined as a
contract under which the depository is asked by a depositor to mind an asset and to return it to the depositor when requested.413 The depository only
holds the movable for the depositor, who is deemed to remain in possession
(C. civ., art. 2266 new – former C. civ., art. 2236).414
Another such contract is the contract of loan (prêt).415 This contract is
also a real contract by formation, but it generates only obligations between
the contracting parties.
Accessory rights in rem also entitle a person to possess a movable. This
is the case of pledges (gage), which are contracts where the debtor transfers
an asset to a creditor as security for his debt. Pledges can secure a civil debt
409
410
411
412
413
414
415
droit civil sous la dir. de J. Ghestin, LGDJ 2e éd 2001, p. 685, n° 21112. – See also
emphyteotic leases (C. rur., art. 451-1 seq.).
Such an “immovable” right entitles the holder to use legal techniques specifically
created for immovables, such as jurisdiction rules, prescription rules, etc.
See for other types of leases of immovables with in rem rights: Collart Dutilleul
F., Delebecque Ph., Contrats civils et commerciaux, p. 341, n° 389 seq.
C. civ., art. 2278 (former C. civ., art. 2282): (1) Possession is protected, regardless
of the substance of the right, against disturbance which affects or threatens it. (2)
Protection of possession is also granted to a person who holds an asset against all
others than the person from whom he holds his rights.
C. civ., art. 1915 seq. – Collart Dutilleul F., Delebecque Ph., Contrats civils et
commerciaux, p. 730, n° 792 seq.
Huet J., Les principaux contrats spéciaux, p. 1555 seq., n° 33101 seq.
C. civ., art 2266 – former art. 2236: (1) Those who possess for another never acquire
ownership by prescription, whatever the time elapsed may be. (2) Thus a tenant, a
depositary, a usufructuary, and all those who precariously hold the asset of an owner,
may not prescribe it.
C. civ., art. 1874 to 1908. – Huet J., Les principaux contrats spéciaux, p. 913 seq.,
n° 22100 seq.
France
70
(C. civ., art. 2333 seq.) or a commercial debt (C. com., art. L 521-1 seq.).
In both cases, although the contract creating the pledge creates only obligatory rights between parties, yet with respect to third parties, the holder
of the asset possesses a property right (i.e. real right), the right of pledge,
which confers priority rights on the asset if the debtor fails to pay the
debt.416
3.2.
The right to acquire a movable
The right to acquire a movable asset is an obligatory right under French
law.417 This right also includes any form of pre-contractual agreements418
such as pre-emption rights,419 options to buy or to sell, the right to repurchase (C. civ., art. 1659-1673),420 etcetera. In particular, a unilateral
promise to sell (promesse unilatérale de vente) is a simple contract that sets
the conditions of a contractual offer for a fixed period of time.421 The beneficiary of the promise only has a claim to sign a contract, i.e. an option to
buy the asset. The promise itself does not have any in rem effects.422
4.
Rules relevant to the transfer of movables
4.1.
Field of application
The rules relevant to the transfer of movables depend on the type of movable in question.
416
417
418
419
420
421
422
C. civ., art. 2333. – C. com., art. L 521-3. – Since the reform of this field in 2006
it is no longer necessary to transfer the asset to the creditor. A simple registration of
the pledge on a special ledger is enough.
Bénabent A., Les contrats spéciaux civils et commerciaux, p. 70, n° 94.
Ghestin J., Desché B., La vente, p. 151, n° 140 seq.
Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, p. 71,
n° 67.
n° 196.
Ghestin J., Desché B., La vente, p. 156, n° 145. – Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, p. 63, n° 59. – Bénabent A., Les
contrats spéciaux civils et commerciaux, p. 68, n° 89.
Bloch P., L’obligation de transférer la propriété dans la vente, RTD civ. 1988, p. 673,
p. 681, n° 18.
71
If the movable is corporeal, the general rule is that of the transfer solo
consensu.423 The new owner is only presumed to be the rightful owner however, if he is also in possession of the asset (C. civ., art. 2276424).425
If the movable is incorporeal, French law states a number of formalities
that must be respected to ensure that the transfer is made public.426 Even
in this situation however, the transfer of ownership between the contracting parties is immediate at the time of contracting. Only third party effects
require that such formalities be accomplished. This applies to assignment
of claims (C. civ., art. 1690427 – C. mon. fin., art. L. 313-23 seq.),428 to the
transfer of intellectual property rights,429 to shares,430 to negotiable instruments and to other intangible goods. This rule includes ships,431 airplanes432
and cars.433
4.2.
Definitions
Assets are considered to be movable if they can be moved, even if at the
present time they are fixed to the ground.434 Nevertheless, certain assets are
considered to be movable either because they do not fall into the category
423
424
425
426
427
428
429
430
431
432
433
434
Huet J., Les principaux contrats spéciaux, p. 178, n°11202.
Former C. civ., art 2279.
See 5.1.1: The Unititular or Uniform Concept of the Transfer of Ownership.
Huet J., Les principaux contrats spéciaux, p. 175, n° 11197.
C. civ., art. 1690: (1) An assignee is vested with regard to third parties only by
notice of the assignment served upon the debtor. (2) Nevertheless, the assignee
may likewise be vested by acceptance of the assignment given by the debtor in an
authentic act.
les relations civiles et commerciales franco-allemandes, préf. F. Ranieri, Bibl. dr.
privé t. 348, LGDJ 2001, p. 181, n° 293 et suiv. – Ghestin J., Billiau M., Loiseau
G., Le régime des créances et des dettes, LGDJ 2005, p. 344 seq.
See for example, C. prop. intell., art. L 131-3 seq. (droit d’auteur).
Various rules apply depending on the type of shares, such as registration or notification duties.
Example: C. dom. pub. fluvial et de la navigation intérieure, article 78 seq. – See the
recent case of the Calypso: Cass. com., 11 déc. 2007: D. 2008, 888. – D’Avout L.,
Quelques observations sur la valeur des publictés réelles en droit français (ou, pourquoi, en matière de meubles, l’inscription ne vaut pas titre), D. 2008, p. 888.
C. av. civ., art. L 121-6.
Terré F., Simler Ph., Les biens, p. 325, n° 408. – Cass. 1e civ., 30 oct. 2008: D. 2008,
2935; JCP G 2009, I, 127, n° 7, H. Périnet-Marquet.
Theatre installed temporarily, CE, 14 déc. 1984: Gaz. Pal. 1985, 2, somm. p. 351.
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France
of immovables,435 or because their nature has been determined by statute
(C. civ., art. 527-536).436 It is not possible for parties to a contract to themselves determine the movable or immovable nature of an asset.437
The legal definition of movables is very broad. Claims (C. civ., art. 529),
security rights relating to movable assets (usufruct rights, pledges, mortgage rights), actions relating to movable assets (action en revendication d’un
bien meuble), business property (fonds de commerce), intellectual property
rights (clienteles and copyright), and securities, stocks and shares (valeurs
mobilières) are all considered to be movable “assets”. Animals are specifically considered to be movable (art. 528 C. civ.).438 This is also the case of
money, electricity (C. civ., art. 1386-3),439 gas440 and of micro-organisms
such as bacteria.441
435
436
437
438
439
440
441
Bergel J.-L., Théorie générale du droit, Dalloz, Méthodes du droit, 3e éd. 1998,
n° 197, p. 209. – Libchaber R., La recodification du droit des biens, in Le Code civil
1804-2004, Livre du bicentenaire, Dalloz-Litec 2004, 297 (331).
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 30 seq., n° 31 seq., with further
references.
For example, the fact that a seller of a veranda (movable good) benefits from a reservation of title until complete payment does not prevent this veranda from becoming
an immovable when it is added to a house (immeuble par destination). Civ. 3e, 29 juin
1991: Bull. civ. III, n° 197, p. 115; JCP G 1992, II, 21825, note J.F. Barbiéri; RTD civ.
1992, p. 144, obs. F. Zénati; D. 1993, jurispr. p. 93, note I. Freij-Dalloz: « La nature,
immobilière ou mobilière, d’un bien est définie par la loi et la convention des parties ne peut
avoir d’incidence à cet égard ». – Mestrot M., Le rôle de la volonté dans la distinction
des biens meubles et immeubles: RRJ 1995 / 3, p. 809. – There are nevertheless limits
to the power of parties, as their choice has no effect with respect to third parties.
Only the real situation is of significance for third parties.
Antoine S., La loi n° 99-5 du 6 janvier 1999 et la protection animale: D. 1999,
chron. p. 168. – Revet Th., Commentaire de la Loi n° 99-5 du 6 janvier 1999 relative aux animaux dangereux et errants et à la protection des animaux (JO 7 janv.
1999, p. 327), RTD civ. 1999, p. 479. – Libchaber R., Perspectives sur la situation
juridique de l’animal: RTD civ. 2001, p. 239. – Nevertheless there is an exception
for farm animals (art. 522 C. civ.). – Libchaber R., La recodification du droit des
biens, in Le Code civil 1804-2004, Livre du bicentenaire, Dalloz-Litec 2004, 297 (343).
CA Paris, 26 févr. 1936: Gaz. Pal. 1936, 1, p. 852. – CA Paris, 28 déc. 1940: S. 1941,
2, p. 23 – Pillon E., Le problème juridique de l’électricité: RTD civ. 1904, p. 5
(19). – Cass. crim., 8 janv. 1958: JCP G 1958, II, 10546, note H. Delpech: “la soustraction frauduleuse d’énergie au préjudice d’autrui est assimilée au vol”.
Catala P., La matière et l’énergie, in Mélanges en hommage à François Terré: PUF,
Dalloz, Juris-Classeur, 1999, p. 557 (563).
Lucas-Baloup I., Le microbe: une res nullius cause étrangère?: Rev. Gén. de droit
médical 1999 / 2, p. 91 (93).
73
During their lifetime, movable assets can be attached to an immovable
asset and thus take on an immovable nature through incorporation (immeuble par nature) or intention (immeuble par destination).442 On the other
hand, an immovable asset can become movable443 if it is to be separated
from its immovable support444 (meuble par anticipation).445
Movables can be tangible or intangible, in other words corporeal or
incorporeal.446 Tangible movables have a physical appearance, whereas intangible movables are simple rights. Claims as such are intangible assets
unless the claim is included in a negotiable instrument that appears in a
material form. Under French company law, most negotiable instruments
appear in a “dematerialised” (i.e. non-physical) form447 and therefore follow
the rules relating to intangible rights.
442
443
444
445
446
447
C. civ., art. 524 and 525.
This applies in cases where an asset is fixed to an immovable support but is deemed
to be detached at short notice. Parties to a contract can thus apply the legal rules on
movables, and especially the specific tax rules. See, Cass. com., 4 févr. 1963: Bull.
civ., III, n° 81.
Cass. ass. plén., 15 avril 1988: Bull. civ. R., p. 198; D. 1988, jurispr. p. 325, concl.
J. Cabannes et note J. Maury; JCP G 1988, II, 21066, rapport Grégoire et note J. F.
Barbiéri; RTD civ. 1989, p. 345, obs. F. Zénati; Rev. crit. DIP 1989, p. 100, note
G.-A. L. Droz: frescos, that are immovables by nature, become movable if they are
removed from the wall they were painted on.
See C. civ., art. 520 and 521.
See supra 1.1.1 (b): Characteristics of rights in rem in contrast to obligations.
But bearer bonds are corporeal and thus are subject to the rules governing corporeal
movables: Cass. com., 25 fév. 1975: Bull. civ. IV, n° 61.
Part II:
Like many other European legal systems, French law distinguishes between
original and derivative acquisition of ownership.448 Acquisition stricto sensu
describes the process of becoming owner, i.e. the creation of an ownership right.449 Derivative acquisition relates to a right that the new holder
acquires from his predecessor,450 whereas original acquisition refers to a
situation where ownership is acquired independently of any predecessor.451
Derivative acquisition applies to assets that already belong to someone and uses legal mechanisms such as contracts, wills, accession by
incorporation,452 acquisitive prescription,453 possession454 and expropriation; whereas original acquisition is relevant to assets not belonging to
anyone (choses sans maître) and uses mechanisms such as occupation, accession by production, accession of movables and creation of assets.
Derivative acquisition presupposes the extinction of the former ownership right, as no two property rights may apply to the same asset;455 original
acquisition is the creation of a right ab initio.
All cases of acquisition require the consent of the acquirer, who can not
become an owner against his will.456 This consent can be explicit, following
a declaration by the acquirer, or tacit as shown by non-equivocal behaviour.
448
449
450
451
452
453
454
455
Many other classifications are possible: one could distinguish voluntary and involuntary modes of acquisition, universal (à titre universel) and specific (à titre particulier)
modes of acquisition, acquisition inter vivos or post death, acquisition for value or
gratuitous acquisition. Legal theory however generally distinguishes original and
derivative acquisition modes which then can fall under the other classifications that
have been mentioned.
Acquisition of ownership is not protected by the ECHR, unlike ownership itself:
Bisan C., Renucci J.-F., La Cour européenne des droits de l’homme précise le droit
de propriété, D. 2005, 870.
Malaurie Ph., Aynès L., Les biens, p. 159, n° 551 seq. – Terré F., Simler Ph., Les
biens, p. 314, n° 389.
Malaurie Ph., Aynès L., Les biens, p. 159, n° 551 et p. 160 n° 554 seq.
See infra 11.1: Accession of movables.
See supra 2: Possession.
Except the specific case of co-ownership (indivision, C. civ. art. 883 seq.), which
however is only a temporary situation that disappears retroactively when the coownership ceases.
5.456
System of transfer
5.1.
Basic characteristics and overview
75
5.1.1. The “unititular” or “uniform” concept of the transfer
of ownership
In general, French law has a uniform concept of transfer of ownership,
meaning that the various aspects linked to the right of ownership pass to
the transferee at one moment in time.457 There is no transfer in stages.
In particular, with respect to sales contracts,458 article 1583 of the Civil
Code459 provides that the contract automatically transfers the ownership
of the goods, as an effect of the intent (agreement) of the parties.460 Article
1583, thus declares the sale to be “perfect” between the parties. “Perfection”
in the conception of article 1583 of the Civil Code means that the duty
to give, i.e. transfer ownership arises and must be performed at this unique
instant in time, whether or not a transfer (as a physical act) has occurred.461
This “intellectual” transfer of ownership is called a transfer solo consensu.462
This situation is specific to French law and contrasts with, for example, the
situation in German law.
French law links the requirement of a traditio to an intellectual act, creating a civil transfer,463 whereas German law links, in general, the traditio
to a material act, physically or symbolically transferring the asset. As an
exception, even in German law, there is a civil transfer, notably in the case
456
457
458
459
460
461
462
463
n° 187. – Terré F., Simler Ph., Les biens, p. 318, n° 397 seq.
See for a general overview, Ghestin J., Desché B., Traité des Contrats, La vente,
LGDJ 1990. – Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, p. 39, n° 35.
C. civ., art. 1583: [the sale] is complete between the parties, and ownership is acquired as of right by the buyer with respect to the seller, as soon as the asset and the
price have been agreed upon, although the asset has not yet been delivered or the
price paid.
Cass. com., 17 févr. 1987: Bull. civ. IV, n° 46. – See also, Bloch P., L’obligation de
transférer la propriété dans la vente, RTD civ. 1988, p. 673.
See also, Danos F., Propriété, possession et opposabilité, préf. L. Aynès, Economica
2007, p. 363 seq.
Zenati-Castaing F., Revet Th., Les biens, p. 284, n° 178, referring also to article
938 of the Civil Code that excludes expressly “any other form of traditio”.
76
France
of the assignment of claims;464 whereas, in French law, specifically for the
assignment of claims, a material act is necessary, at least with respect to
third parties.465
This automatic transfer of ownership completely masks a substantial obligation of the transferor: the “duty to give” (C. civ., art. 1101, obligation de
donner).466 The duty to give (donner, from the Latin verb dare) means specifically “to transfer ownership” and not to donate (from the Latin verb donare).
The performance of this duty to transfer ownership entails that the
transferor specifically renounces his right of ownership of the asset. The
French Civil Code lays down a fundamental principle in article 1138:467 the
duty to give is performed at the time of conclusion of the contract and by
the sole acceptance of this contract by the transferor.468 Thus, there is no
464
465
466
467
468
les relations civiles et commerciales franco-allemandes, préf. F. Ranieri, LGDJ 2001,
Bibl. dr. privé t. 348, p. 69, n° 105.
les relations civiles et commerciales franco-allemandes, préf. F. Ranieri, LGDJ 2001,
Bibl. dr. privé t. 348, p. 190, n° 314 seq.
Critizising this situation, Zenati-Castaing F., Revet Th., Les biens, p. 299-301,
n° 187. – Tallon D., Le surprenant reveil de l’obligation de donner, D. 1992, chr.
68. – Fabre-Magnan M., Le mythe de l’obligation de donner, RTD civ., 1996, 85. –
Courdier-Cuisinier A.-S., Nouvel éclairage sur l’énigme de l’obligation de donner,
RTD civ., 2005, 521. – Comp. Pignarre G., A la redécouverte de l’obligation de
praestare – Pour une relecture de quelques articles du code civil, RTD civ. 2001,
p. 41. – Also, Pignarre G., L’obligation de donner à usage dans l’avant-projet Catala – Analyse critique, D. 2007, p. 384.
C. civ., art. 1138: (1) The obligation of delivering an asset is performed by the sole
consent of the contracting parties. (2) It makes the creditor the owner and places
the asset at his risks from the time when it should have been delivered, although the
handing over has not been made, unless the debtor has been given notice to deliver;
in which case, the asset remains at the risk of the latter.
Comp. the “dessaisine-saisine” clause in old French law, which in notarized documents, explicitly stated the double unilateral declaration of the transferor and transferee. – Also Zenati F., Transfert de propriété par l’effet des obligations, RTD civ.
1994, p. 132. – Chazal J.-P., Vicente S., Le transfert de propriété par l’effet des
obligations dans le Code civil, RTD civ. 2000, p. 477 seq. – Blanluet G., Le moment du transfert de la propriété, in 1804-2004, Le Code civil, un passé, un présent, un
avenir, Dalloz 2004, 409. – Ancel P., Force obligatoire et contenu obligationnel du
contrat, RTD civ. 1999, 771. – Bloch P., L’obligation de transférer la propriété dans
la vente, RTD civ. 1988, p. 673 (677). – Huet J., Des différentes sortes d’obligations
et plus particulièrement, de l’obligation de donner, la mal nommée, la mal aimée, in
Mélanges Ghestin, LGDJ 2001, p. 425.
77
specific declaration of the intent of the transferor to renounce his right of
ownership. In the same way, there is no specific declaration of intent of the
transferee to acquire ownership. However, both declarations are implied,
as the will of both parties is required to transfer property in the good.469
The duty to give includes the duties to deliver and to keep the asset until
delivery (C. civ., art. 1136),470 and to transfer ownership and possession
(C. civ., art. 1604).471
Nevertheless, in some cases, where a legal formality has to be respected,
French law distinguishes between the effects of the transfer with respect to
the contracting parties and the effects of the transfer in relation to third
parties.472 This occurs for the transfer of claims (assignment of receivables –
C. civ., art. 1690)473 and in cases where the transfer must be registered to
be effective against third parties.474
Additionally, with respect to third parties, the transfer of property in a
movable is only fully opposable as a right in rem, when the new owner takes
possession of the asset.475 The concept of opposabilité is complex.476 Article
1365 of the Civil Code provides that the transfer of ownership is fully
opposable against third parties, solo consensus, because opposability is an
inherent feature of ownership. Yet, because the transfer has taken place solo
consensu, third parties may not be informed of the transfer of ownership.
In general, if the asset transferred is a corporeal movable, the third party
can consider the person who is in possession of it to be its owner (C. civ.,
art. 1141).477 Possession here serves the purpose of information.
469
470
471
472
473
474
475
476
Zenati-Castaing F., Revet Th., Les biens, p. 283, n° 178 stresses that this transfer
is not a transfer by an effect of the law, as each party must agree to this transfer.
C. civ., art 1136: An obligation to transfer carries that of delivering the asset and of
keeping it until delivery, on pain of damages to the creditor.
C. civ., art. 1604: Delivery is the transfer of the asset sold into the power and possession of the buyer.
n° 189-190. – Terré F., Simler Ph., Les biens, p. 322, n° 405 seq.
les relations civiles et commerciales franco-allemandes, Bibl. dr. privé t. 348, LGDJ
2001, p. 403, n° 666 et suiv.
See for example the transfer of shares that must be registered within the books of
the company (C. civ., art. 1865).
Bufnoir C., Propriété et contrat, Paris 1924, p. 59 seq. – There are however exceptions in the case of possession corpore alieno or constitutum possessore. – See supra 2.1:
Notion of possession.
See Danos F., Propriété, possession et opposabilité, préf. L. Aynès, Economica 2007,
534 pages.
France
78
For some specific movables however, the transfer of ownership must
adhere to certain publicity requirements. This is the case of ships,478 boats479
and airplanes,480 the transfer of which must be registered in a ledger maintained by the French customs (administration des douanes). Similar rules
apply to patents, for which registration is required at the Institut national de
la propriété industrielle.481
To be complete, in legal theory, a lot of discussions have been held as to
whether the right of ownership is transferred as such, or whether there is a
double mechanism of deconstitution (i.e. extinction) and constitution of a
right: i.e. the right of ownership of the transferor is extinguished followed
by the birth of the right of the transferee.482
Such an analysis is similar to the Roman conception of the transfer of
ownership. Zenati-Castaing and Revet483 consider that this approach is logi
cal if one perceives the right of ownership as a link between the assets and
a person (subjective approach)484 and thus, the transmission only applies
to the assets and implies the extinction and simultaneous constitution of a
right for each of the two parties.
477
5.1.2. Are the same rules applicable to all kinds of obligations?
French law does not make any distinction among the different kinds of
obligations / duties to transfer ownership.485 As soon as the object of the
obligation is clearly defined (certain), the transfer takes place solo consensus,
whether the obligation to transfer ownership derives from a contract,486 a
unilateral promise, a claim for unjustified enrichment, a claim for damages,
or an obligation arising from negotiorum gestio. For the transfer to be effec477
478
479
480
481
482
483
484
485
486
C. civ., art. 1141: Where an asset which one is obliged to transfer or deliver to two
persons successively is purely movable, the one of the two who has been put in actual
possession is preferred and remains owner of it, although his title is subsequent as to
date, provided however that the possession is in good faith.
Décret du 27 oct. 1967, Article 93.
C. dom. pub. fluv., art. 101.
C. av. civ., art. L 121-11.
C. prop. intell., art. L. 613-9, al. 1.
Zenati-Castaing F., Revet Th., Les biens, p. 297, n° 187. – Vareilles-Sommières,
La définition et la notion juridique de la propriété, RTD civ. 1905, p. 443 (458).
See supra 1.2.1: Definiton of ownership rights.
Whatever the type of contract. See a dation en paiement: Cass. 1e civ., 27 janv. 1993:
Bull. civ. I, n° 39; Defrénois 1993, 730, obs Aubert; RTD civ. 1994, 132, obs. Zenati.
79
tive, both the transferor and the transferee must agree to the transfer of
ownership. This agreement is, however, implied in most cases.
If the transfer results from a decision or order of a court or another
public authority, the transfer takes place as soon as this decision is definite.
In the law of successions,487 the transfer from the de cujus to his heirs
takes place immediately at the time of death. If an heir does not want to
accept the succession, the renunciation then has retroactive effects.488
In all cases of transfer, the transferor loses his right of ownership, which
extinguishes, whereas the transferor acquires a right of ownership that is
created ipse jure.489 As the right of the new owner (ayant-cause) is dependent on the right of the former owner (auteur), it is a derivative acquisition.
The exact nature of this mechanism is disputed.
For some modern authors490, there is no transfer of rights of ownership,
but only the transfer of the asset (i.e. goods in the legal sense) as receptacle
of the right of ownership. In other words, the transfer mechanism represents
the death of the former right of ownership and the birth of a new right to
the assets transferred, the two rights being identical. Other authors consider, in a more classical way, without however being fully in contradiction
to the former statement, that the transfer of ownership derives directly
from the law491 and the right of ownership is transferred independently of the
asset as such.492
5.1.3. Short overview of the basic transfer requirements
The transfer of ownership may take many forms in French law. In most
cases, this transfer will be a consequence of the consent of parties to a contract. The transferor will thus renounce his ownership right to the benefit
of the transferee, who then will become the owner.
Article 711 of the Civil Code provides for the acquisition of ownership
as an effect of obligations.493 This acquisition requires two unilateral declarations: the renunciation of the transferor in favour of the transferee and
the decision of the transferee to acquire ownership of the asset.494
487
488
489
490
491
492
493
C. civ., art. 776.
See supra 5.1.3.(a): The legal requirements for the transfer.
Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, n° 187,
p. 175.
C. civ., art. 711: Ownership of property is acquired and transmitted by succession,
by gift inter vivos or will, and by the effect of obligations.
France
80
However, if there is no contract, the transfer can be the result of a
unilateral act such as a will, or result from the operation of law, as in a
succession ab intestat. Additionally, courts can decide on the transfer of
ownership by adjudication. In this last case, the judge makes the decision in
the stead of the transferor.495
If the transfer of ownership is the result of a will, here again there are
two unilateral acts: the deceased person (de cujus) decided before his death
to bequeath an asset (legs, succession à titre particulier) or his entire estate
(succession à titre universel) to a heir; the heir must agree to become the
owner of the asset or of the entire estate.
If the de cujus did not draft a will, it is an ab intestat succession. In this
case, the law presumes that the deceased person intended (presumption of
a unilateral declaration) to leave his assets to his heirs in the legal order
of succession, as provided for in the Civil Code. Here again, the heir must
agree to become the owner of the asset.
494
(a)
Legal requirements for the transfer
The transfer of ownership in French law is subject to the principle of party
autonomy,496 meaning that the parties to a contract are free to transfer
property by contract if they comply with the legal conditions laid down in
the law (C. civ., art. 711 and 1134).497
The transfer of ownership in French law requires a valid contract that
respects the conditions provided for in articles 1108 to article 1133 of the
Civil Code (on the formation of the contract) and in articles 1134 to 1167
of the Civil Code (on the performance of the contract).
In particular, article 1108 of the Civil Code states,498
“Four requisites are essential for the validity of an agreement: the consent of
the party who binds himself; his capacity to contract; a definite object which
forms the subject-matter of the undertaking; a lawful cause in the obligation.”
494
495
496
497
498
Specifically, only a judge can make such a decision in cases involving legally protected persons (incapables en tutelle), when business assets (fonds de commerce) or
immovables are to be sold. The judge also intervenes in cases where assets have to
be divided (licitation).
C. civ., art 1134: (1) Agreements lawfully entered into are the law of those who
have made them. (2) They may be revoked only by mutual consent, or for causes
authorized by law. (3) They must be performed in good faith.
Translation taken from www.legifrance.gouv.fr.
81
These four conditions are part of general contract law and will only be
explained briefly here.499
First, the Civil Code500 provides that the consent (consentement) of a
party should be free of defects such as: a mistake as to the substance of the
assets that constitutes the object of the contract; a mistake as to the person of the other party, if the contract is concluded intuitu personae; a fraud
committed by one of the parties to induce the other party to conclude the
contract; and moral or physical violence towards the other party to force
him to contract.
Secondly, each party must also be capable of contracting (capacité).
Article 1123 of the Civil Code501 states that anybody can conclude a contract, unless he is declared incompetent by law. Limits apply generally to
minors and to mentally impaired persons.502 Specific rules apply to donations, where limitations exist both for the donor and the donee.503
Thirdly, the contract must also have an object (objet) that conforms to
legal requirements. The exact meaning of the “object” of the contract is
not clear in the Civil Code. Authors504 generally distinguish between the
object of the contract,505 i.e. the type of agreement the parties want to make
(sale of goods, barter, lease) and the object of the obligation,506 which is the
499
500
501
502
503
504
505
Detailed explanations can be found in: Terré F., Simler Ph., Lequette Y., Droit
civil, les obligations, Dalloz 9e édition 2005, p. 93, n° 79 seq. – Flour J., Aubert
J.-L., Savaux E., Droit civil, les obligations, 1. L’acte juridique, Sirey 12e éd. 2006,
p. 87, n° 121 seq. – Chabas F., Leçons de droit civil, T. II, 1er vol., Obligations,
Théorie générale, Montchrestien, 9e éd. 1998, p. 103, n° 114 seq. – Voirin P., Goubeaux G., Droit civil, p. 353, n° 790 seq. – Bénabent A., Droit civil, les obligations,
Montchrestien, 10e éd. 2005, p. 21, n° 28 seq.
Bénabent A., Les obligations, p. 41, n° 54 seq. – Terré F., Simler Ph., Lequette
Y., Les obligations, p. 212, n° 204 seq. – Flour J., Aubert J.-L., Savaux E., Les
obligations, p. 143, n° 190 seq.
C. civ., art. 1123: Any person may enter into a contract, unless he has been declared
incapable of it by law.
Voirin P., Goubeaux G., Droit civil, p. 378, n° 838 seq. – Terré F., Simler Ph.,
Lequette Y., Les obligations, p. 108, n° 94 seq. – Flour J., Aubert J.-L., Savaux
E., Les obligations, p. 178, n° 225 seq.
Jubault Ch., Droit civil, Les successions, Les liberalités, Montchrestien 2005,
p. 395, n° 660 seq.
Y., Les obligations, p. 274, n° 265 seq. – Criticizing this distinction, Flour J., Aubert J.-L., Savaux E., Les obligations, p. 185, n° 234 seq.
Y., Les obligations, p. 309, n° 301 seq.
France
82
promise to do, to give or to refrain from doing something. This object of the
obligation must exist, be determined or determinable and be transferable.507
Finally, the contract must have a valid causa (cause), which is the main
motive of the legal transaction. Here again, terminology is not clear, as
authors508 distinguish between the cause of the contract509 (cause subjective,
i.e. the motive behind the conclusion of the contract), and the cause of
the obligation510 (cause objective, i.e. the counterpart of the other party’s
promise). The validity of the contract requires an existing and legal cause
conforming to public order requirements and mandatory law.
The French system follows the causal principle. This means in particular, that if the contract that underlies the transfer is void, the transfer of
property is also void ad initio.511 The transfer thus needs a valid obligation as
its causa.512 Nevertheless, if the acquirer is in possession of the asset, third
parties can trust this appearance of ownership, and thus acquire ownership
from the possessor.513
506
(b)
Legal nature of the transfer
The transfer of ownership in French law is consensual.514 This principle
results from article 1138,515 article 711,516 article 938 (donation)517 and arti506
507
508
509
510
511
512
513
514
Y., Les obligations, p. 276, n° 266 seq.
See infra, 5.2.1: Specific goods – generic goods.
Bénabent A., Les obligations, p. 133, n° 178 seq. – Flour J., Aubert J.-L., Savaux
E., Les obligations, p. 185, n° 234 seq. – Yet see a different terminology at, Voirin
P., Goubeaux G., Droit civil, p. 383, n° 850 seq.
This is an application of the general theory on « la cause du contrat » ruled by art. 1131
C. civ.
Bénabent A., Les obligations, p. 134, n° 181. – Voirin P., Goubeaux G., Droit
civil, p. 384, n° 852 seq.
See acquisition a non domino infra at 12: Rules of good faith acquisition.
Chazal J.-P., Vicente S., Le transfert de propriété par l’effet des obligations dans le
Code civil: RTD civ. 2000, p. 477. – Bloch P., L’obligation de transférer la propriété
dans la vente, RTD civ. 1988, p. 673. – Witz Cl., Analyse critique des règles régissant
le transfert de propriété en droit français à la lumière du droit allemand, in Festschrift
für Günter Jahr, Tübingen, p. 533. – Ducouloux-Favard C., Le transfert de propriété,
objet du contrat de vente en droit français, allemand et italien, Petites Affiches, 27
83
cle 1583 of the Civil Code (contract for the sale of goods).518 This means
specifically that the transfer of ownership derives directly from the law, the
law implying the agreement of the parties to the transfer of ownership.519
It also means that the right of ownership is transferred independently from
the asset as such.520
Nevertheless, the transferor must own the asset or the right he is transferring.521 French law applies the general principle nemo plus juris transferre
potest quam ipse habet.522 In other terms, one can only transfer what one
has.523 In particular, if the right of the transferor (auteur) to the asset disappears, because the contract establishing this right is avoided, the right of
ownership of the transferee (ayant cause) also disappears (resoluto jure dantis,
resolvitur jus accipientis principle524).
If the asset is charged with real rights, such as securities, the transferor
will be subject to the droit de suite of the beneficiary of the real rights. If the
515
515
516
517
518
519
520
521
522
523
524
516
517
avril 1990, p. 21. – Terré F., Simler Ph., Les biens, p. 316, n° 394. – Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, p. 175, n° 187.
C. civ., art. 1138: (1) An obligation of delivering an asset is complete by the sole
C. civ., art. 711: Ownership of property is acquired and transmitted by succession,
by gift inter vivos or will, and by the effect of obligations.
C. civ., art. 938: A gift duly accepted is complete by the sole consent of the parties;
and ownership of the articles donated is transferred to the donee without need of
any other delivery.
C. civ., art. 1583: [the sale] is complete between the parties, and ownership is acquired as of right by the buyer with respect to the seller, as soon as the asset and the
price have been agreed upon, although the asset has not yet been delivered or the
price paid.
See supra 5.1.3.(a): The legal requirements for the transfer and supra 5.1.1: The
“unititular” or “uniform” concept of the transfer of ownership.
p. 175.
Ghestin J., Desché B., La vente, p. 415, n° 371.
Roland H., Boyer L., Adages du droit français, Litec 4e éd. 1999, p. 506, n° 259. –
Terré F., Simler Ph., Lequette Y., Les obligations, p. 501, n° 499.
See also C. civ., art 2477 al. 2: A seller conveys to a purchaser only the ownership
and the rights he himself had on the asset sold: he conveys them subject to the same
prior charges and mortgages with which the asset sold was burdened. – Didier P., Les
biens négociables, in Mélanges Guyon, Dalloz 2003, p. 327.
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asset benefits from certain rights, such as guarantee rights, the transferee
can also use them. The impact of this rule is limited to the internal relations
of the parties, insofar as movables are concerned.
In respect of third parties, the rule provided by article 2276 (former C. civ.,
art. 2279) of the Civil Code lays down that a third party acting in good faith
acquires ownership of an asset that he has received a non domino.525
Additionally, rules on representation526 may alleviate the fundamental
principle of nemo plus juris. Representation is a replacement mechanism
where one person replaces another in the accomplishment of a legally significant act. Representation is not provided by the Civil Code as an independent legal institution,527 but various specific applications can be found
in the Civil Code, depending on the reason for the representation.528
Representation can be defined as a situation in which a person, the
agent or intermediary, acts in the name and on behalf of another person, the
principal, with the effect that the legal consequences of the agent’s acts are
attributed directly and exclusively to the principal.529
Representation is direct or perfect (representation parfaite) if the agent
has the power to act not only on behalf, but also in the name, of the principal. Representation is indirect (representation imparfaite) if the agent acts
on behalf of the principal, but in his own name. The agent thus declares
that he acts for a third party, but does not reveal the name of the third
party. Such a situation can be found in commercial law under the so-called
contrat de commission (C. com., art. L 132-1 seq.). This contract achieves
its effects in two stages: first the agent contracts with the other party. Then
the principal becomes a party to the contract.
The legal effects of direct representation impact upon the patrimony of
the principal.530 The agent is only an intermediary, who brings the consent
of the principal to the attention of the other party.531 Thus, the transfer of
525
526
527
528
529
530
Flour J., Aubert J.-L., Savaux E., Les obligations, p. 348, n° 426 seq. – Storck
M., Essai sur le mécanisme de la representation dans les actes juridiques, préface
Huét-Weiller, Bibl. dr. privé, LGDJ 1982. – Didier Ph., De la representation en
droit privé, préface Y. Lequette, Bibl. dr. privé, LGDJ 2000.
See however the agency contract at C. civ., art. 1984 seq.
See C. civ., art. 1984 seq. for the contract of agency (mandat), legal representation measures for minors and mentally impaired persons, representation by court
decision (C. civ., art. 219: for example, representation of a spouse by the other
spouse).
Flour J., Aubert J.-L., Savaux E., Les obligations, p. 349, n° 428 seq. – Terré F.,
Simler Ph., Lequette Y., Les obligations, p. 177, n° 173. – Huet J., Les principaux
contrats spéciaux, p. 1055, n° 31000 seq.
85
ownership, operated by an agent on instructions of the principal, has no
effects whatsoever within the agent’s patrimony. 531
On the other hand, in the case of indirect representation, the situation
is more complex. As the agent acts in his own name, logically, he is party
to the contract; yet ownership rights pass directly to the principal.532
If the agent acts without a power of representation, neither the agent
nor the principal are bound by the act of the intermediary (i.e. the agent).533
The only way to circumvent this situation is to obtain ratification by the
principal. Ratification534 is a unilateral act by which the principal agrees to
adopt the act accomplished by the intermediary. Between the agent and the
principal, this ratification has an ex tunc effet. In respect of third parties, it
only applies ex nunc if third parties have acquired rights between the moment the act was accomplished and the moment of ratification.
In some cases, the so-called “theorie de l’apparence”535 will protect third
parties if they legitimately believe that the apparent representative has the
power to act for the principal.536 Courts will thus judge that the power of
representation produces effects towards third parties.
The transfer of property rights takes place automatically at the time
of the contract, even if the asset has not been delivered to the acquirer.537
The transferor thus no longer holds the asset as an owner, but recognises
automatically that he possesses the asset for the account of the buyer (constitut possessoire).538
531
532
533
534
535
536
537
538
As a particular feature, the consent of both the agent and the principal has to be
valid: Cass. 1e civ., 19 mai 1999: Bull. civ. I, n° 160.
Terré F., Simler Ph., Lequette Y., Les obligations, p. 178, n° 173, p. 182, n° 181. –
p. 556.
Izorche M.-L., A propos du « mandat sans representation », D. 1999, chr. 369.
C. civ., art. 1998: (1) A principal is bound to perform the undertakings contracted
by the agent, in accordance with the authority granted to him. (2) He is bound for
what may have been done outside its scope, only where he has expressly or tacitly
ratified it. – Huet J., Les principaux contrats spéciaux, p. 1149, n° 31214.
Ghestin et allii, Introduction générale, LGDG, 4e éd. 1994, n° 838, p. 828 seq. –
Zenati-Castaing F., Revet Th., Les biens, p. 301, n° 187. – Danis-Fatôme A.,
Apparence et contrat, préf. G. Viney, LGDJ, bibl. dr. privé, t. 414, 2004. – Sourioux J.-L., La croyance légitime, JCP 1982, I, 3058. – Leroux E., Recherche sur
l’évolution de la théorie de la propriété apparente dans la jurisprudence depuis 1945,
RTD civ. 1974, p. 509.
Calais-Auloy B.-V., Essai sur la notion d’apparence en droit commercial, 1959, préface M. Cabrillac. – Huet J., Les principaux contrats spéciaux, p. 1151, n° 31217 seq.
Terré F., Simler Ph., Les biens, p. 151, n° 159. – See supra 2.1: Notion of possession.
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86
The contract does not create an obligation to transfer property,539 as
ownership is transferred immediately. “Traditio” (i.e. transfer of possession)
as such is not required. Neither is payment necessary in a synallagmatic
contract, unless the parties have provided otherwise.540
French law does not require a so-called “real agreement”, i.e. a declaration or agreement separate from the underlying obligation which is necessary to accomplish the transfer of ownership.
If the asset has been transferred with a retention of title clause, the seller
may empower the acquirer to sell the asset again, even though he is not
the owner. In this case, the claim for payment against the second acquirer
is transferred to the first seller.541
(c)
Limits of the solo consensu principle
These rules are not mandatory and parties to a contract may make other arrangements.542 The parties to a contract may thus decide that the transfer of
ownership be postponed to the time of delivery543 or to the time of payment
(reservation of title).544 The transfer of ownership is not retroactive to the
time of the conclusion of the contract, unless the parties decide otherwise
(C. civ., art. 1601-2).545
A clear distinction must be made between cases where the transfer is
only delayed and cases where the transfer is conditional upon the perfor545
539
540
541
542
543
544
545
Ghestin J., Réflexions d’un civiliste sur la clause de réserve de propriété: D. 1981,
chron. p. 1, spec. n° 13. – Saint-Alary-Houin C., Réflexions sur le transfert différé de la propriété immobilière, in Mélanges Raynaud, 1985, p. 733, n° 25. – Cass.
1e civ., 27 janv. 1993: Bull. civ. I, n° 39; JCP G 1994, II, 22195, note Pétel-Teyssié;
RTD civ. 1994, p. 132, obs. Zénati. – Cass. 1e civ., 10 oct. 1995: Bull. civ. I, n° 361;
JCP G 1995, IV, 2527; D. 1995, inf. rap. p. 246.
Reservation of title, see Ghestin J., Desché B., La vente, p. 647, n° 581.
C. civ., art. 2372: The right of ownership burdens the debtor’s claim with respect to
a subpurchaser or to the indemnity under an insurance policy which is subrogated
to the property.
Ghestin J., Desché B., La vente, p. 621, n° 554. – Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, n° 185, p. 174.
This is often agreed in distance contracts, so as to be sure that the asset exists at that
moment; see future goods infra, this section.
C. com., art. L 624-16 to L 624-18 and C. civ., articles 2367-2372. – Reservation of
title, see Ghestin J., Desché B., Traité des Contrats, La vente, LGDJ 1990, p. 647,
n° 581. – See infra 15: Rules for the reservation of title.
C. civ., art. 1601-2: A sale for future delivery is the contract by which the seller
undertakes to deliver the building on its completion, and the buyer undertakes to
87
mance of an obligation, such as the payment of a price. In the first set of
cases, neither party can ultimately prevent the transfer of ownership, because both have consented in advance to the transferring of the property
at a given moment in time.546
In the second case, the transfer is dependent on the occurence of a
condition, which is an uncertain event in time that suspends the existence
of the duty to give.547 If this event happens, it has a retroactive effect by
transferring the ownership at the time of the conclusion of the contract.
This hypothesis is applied in the case of a reservation of title clause that
links the transfer of ownership to the payment of the price.
Parties to a contract may also transfer only partial ownership rights,
such as usufruct rights or an asset that is burdened with a usufruct right.548
Sometimes, the solo consensu principle is set aside. This is the case of
donations, where article 931 of the Civil Code lays down that a donation
between living people (donations entre vifs) must be drafted by a notary, or
else be declared void.549 Yet, there is one exception accepted by courts: the
gift from hand to hand (don manuel).550 This gift only requires the physical transfer of the asset from the donor to the donee. The intention of the
donor is expressed through this material act. In respect to non corporeal assets, the transfer from hand to hand can be done via a bank draft.551 Certain
assets can however only be transferred by virtue of a written contract: such
546
547
548
549
550
551
take delivery of it and to pay the price of it at the date of delivery. The transfer of
ownership is achieved by operation of law by the acknowledgement of the completion of the building through an authentic instrument; it is effective retroactively on
the day of the sale.
In such a case, the transferee would be creditor of the transfer of ownership. It is a
form of jus ad rem, which does not give any power over the good, but is a personal
right that can be transferred. See Zenati-Castaing F., Revet Th., Les biens, p. 303,
n° 188. – Also Cass. com., 10 janv. 2006: RTD civ. 2006, 343, obs. Revet. – Cass.
3e civ., 6 oct. 2004: Bull. civ. III, n° 163; D. 2004, 3098, note G. Kessler; RTD civ.
2005, 121, n° 2, obs. Mestre et Fages.
Dagot M., La vente d’un bien grevé d’usufruit, JCP N 1987, I, 307. – Bénabent A.,
Les contrats spéciaux civils et commerciaux, p. 22, n° 24.
C. civ., art. 931: All acts containing an inter vivos gift shall be executed before
notaires, in the ordinary form of contracts; and there shall remain the original of
them, on pain of annulment.
Cass. 1e civ., 11 juil. 1960: D. 1960, 702, note Voirin. – Peterka N., Les dons manuels, préf. P. Catala, Bibl. dr. privé t. 355, LGDJ 2001.
Cass. com., 19 mai 1998: Bull. civ. IV, n° 161; D. 1998, 551, note Martin; D. 1999,
somm. 308, obs. Nicod; RTD com. 1998, 967, obs. Deboissy; RTD civ. 1999, 677,
obs. Patarin; JCP 1999, I, 118, n° 8, obs. Viandier et Caussain. – Comp. the transfer
88
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is the case of patents (brevets d’invention – CPI, art. L 613-8, al. 5); of trademarks (CPI, art. L 714-1, al. 4); and of aircraft (C. av. civ., art. L 121-11).
Furthermore, the solo consensu principle is only fully effective between
the parties to a contract.552 With respect to third parties, rules on registration and rules governing possession of movables553 limit the effects of the
solo consensu principle.554
Additionally, the solo consensu principle only applies when an immediate
transfer of ownership is possible, in particular only for identified assets, which
is not the case of future assets that can only be acquired when they come
into existence, or of assets that have to be individualised first (generic goods).
It is also important to note that, if for some reason the derivative acquisition of ownership fails, the acquirer may become the owner under the
rules of original acquisition.555 For example, if there is a conflict between
two buyers, article 1141 of the Civil Code,556 which is a specific application
of article 2276 (former C. civ., art. 2279) of the Civil Code,557 provides that
if a movable good has been transferred to two different buyers, preference
is given to the person who first possessed the asset in good faith, even if
his legal title came later. Therefore, even if the ownership on the asset is
transferred solo consensu, where there is a conflict between two buyers, it
will be resolved through the rules on possession.558 In a similar way, notwithstanding the solo consensu principle, rules on prescriptive acquisition
enable the acquirer to become the owner after a certain period of time.559
In some cases, where the transfer of ownership is delayed, the transferee
benefits from an immediate right of use (entrée immediate en jouissance). Any
risks befalling the asset are normally linked to the right of ownership560 (res
552
553
554
555
556
557
558
559
560
of ownership of securities (C. mon. et fin., art. L 431-2, al. 1) and the transfer of
emission quotas (C. env., art. L. 229-15, I, al. 2).
p. 176. – Bénabent A., Les contrats spéciaux civils et commerciaux, p. 99, n° 143.
p. 176. – See supra 5.1.1: The “unititular” or “uniform” concept of the transfer of
ownership.
See infra 11: Types of original acquisition.
C. civ., art. 1141: Where an asset which one is bound to transfer or deliver to two
Cass. civ., 13 nov. 1997, n° 95-20411 (inédit).
89
perit domino principle561), which in this case has not yet been transferred.
Therefore, article 1137 of the Civil Code impresses a “conservation duty”
on the holder (détenteur précaire) of the asset.562 Additionally, the contract
may provide for the transfer of risks at the time of the delivery, notwithstanding any transfer of ownership.
If the asset is destroyed after the transfer of ownership, but before the
material delivery of the asset and before payment of the price agreed, the
transferor has a duty of conservation (C. civ., art 1136),563 but the loss of
the asset is at the risk of the transferee (C. civ., art. 1138).564 The transferee
must then pay the price without obtaining the counterpart.
If however, the transferor did not tend to the asset as a reasonable person
(bon père de famille) would have, the transferee is entitled to compensation
for the loss incurred. The transferee must establish a fault (faute, obligations
de moyens) on the part of the transferor, the mere fact of the asset’s destruction not being enough to establish the transferor’s liability.
If the asset is destroyed before transfer of ownership and before delivery,
the risks of the loss are the transferor’s (res perit debitori principle).565 This
is an application of the theory of impossibility of performance of a synallagmatic contract, which states that the two parties are freed from their
obligations if the contract cannot be performed under any circumstances.
Article 1138, al. 2 of the Civil Code considers that the transferor must bear
the risks of loss if the delivery of the asset is late and if the transferee has
notified the transferor of the delay in delivery. However, the transferor is
exempted from liability if he can prove that the asset would have equally
been destroyed at the transferee’s place of business if it had been delivered
(see also, C. civ., art. 1302, al. 2 and art. 1604).566
561
562
563
564
565
C. civ., art 1137: (1) An obligation to watch over the preservation of an asset,
whether the agreement has as its object the profit of one party, or it has as its object
their common profit, compels the one who is responsible to give it all the care of a
prudent administrator. (2) That obligation is more or less extensive as regards certain
contracts, whose effects, in this respect, are explained under the Titles which relate
to them.
C. civ., art. 1136: An obligation to transfer carries that of delivering the asset and
of keeping it until delivery, on pain of damages to the creditor.
C. civ., art. 1138: (1) An obligation of delivering an asset is complete by the sole
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90
5.2.566 General issues
5.2.1. Specific goods – generic goods
Under French law, some goods cannot be transferred by contract.567 Limitations apply to public property (biens du domaine public),568 certain nontransferable rights (droits d’usage et d’habitation, articles 631 and 634 C.
civ.),569 but also to certain specific goods (C. civ., art. 1128570) such as game
and fish (during the periods when hunting and fishing are prohibited), tobacco, gunpowder, arms, works of art and gold, as well as the human body
and tombs.
Rules governing the transfer of ownership apply, in general, to an identified and individual asset. It is nevertheless possible to transfer a combination of assets that cannot be separated. This combination is referred to as a
“universalité de droits”. For example, a business (fonds de commerce) is such
a combination of assets.
In the case of generic goods,571 it is necessary to identify the asset so
that the transfer of property can take place.572 Article 1585 of the Civil
566
567
568
569
570
571
C. civ., art. 1302: (1) Where an asset certain and determined which was the object
of an obligation perishes, may no longer be the subject matter of legal transactions
between private individuals, or is lost in such a way that its existence is absolutely
unknown, the obligation is extinguished if the asset has perished or has been lost
without the fault of the debtor, and before he was under notice of default. (2) Even
where the debtor is under notice of default, if he has not assumed fortuitous events,
the obligation is extinguished in the case where the asset would also have perished
in the hands of the creditor if it had been delivered to him. (3) The debtor is obliged
to prove the fortuitous event which he alleges.; and C. civ., art. 1604: Delivery is
the transfer of the asset sold into the power and possession of the buyer.
Didier P., Les biens négociables, in Mélanges Guyon, Dalloz 2003, p. 327.
Terré F., Simler Ph., Lequette Y., Les obligations, p. 285, n° 277. – Formerly this
was justified by: C. domaine, art. L. 52: « Les biens du domaine public sont inaliénables
et imprescriptibles ». See also Civ. 1re, 2 mars 1994, D. 1994, Somm. p. 165, obs. A.
Robert. This article has now disappeared from the Code des domaines since 2006
but can be found under Articles L 3111-1 and Article L 3111-2 C. gén. de la prop.
des pers. pub.
C. civ., art. 631: a user may neither transfer nor lease his right to another person. –
C. civ., art. 634: A right of dwelling may not be transferred or leased.
C. civ., art. 1128: Only assets which may be the subject matter of legal transactions
between private individuals may be the object of agreements.
The so-called «vente en bloc» is not included here, as it applies to the whole of a set of
identified goods situated in a certain place, where the price has been fixed per unit (C.
civ., art. 1586). This type of goods does not fall within the category of generic goods.
91
Code573 regulates this situation. This article provides that, as long as the
asset has not been weighed, counted or measured, it remains at the risk of
the seller.574 The transfer of property can only take place when the asset
has been individualised.575 French law uses identification in two manners:
at the time the contract is concluded, identification (i.e. the determination of the asset) is a condition of validity of the contract (for example, for
the sale of a kilo of butter or flour).576 Precise identification of the asset is
additionally a method of performance of the contract.
Identification thus serves two purposes. First, identification enables
the transfer of property and the performance of the contract:577 as soon as
the promised quantities have been measured, ownership is transferred.
Secondly, identification is used under contracts where the asset is sold
by reference, to verify whether the selected item is conform to the contract.578 Identification can however, only be performed when the asset
exists.579
In general, identification is a unilateral act performed by the transferor.
There is no additional requirement (e.g. notification to the other party or
consent by the other party).580 If the goods that have been identified are
not in accordance with the agreement, the other party can, of course, sue
for faulty performance.581
572
572
573
574
575
576
577
578
579
580
581
573
Goré F., Le transfert de propriété dans les ventes de choses de genre, D. 1954, chr.
p. 175.
C. civ., art 1585: Where goods are not sold in bulk but by weight, number or measure,
a sale is not complete, in that the assets sold are at the risk of the seller until they
have been weighed, counted or measured; but the buyer may claim either the delivery
or damages, if there is occasion, in case of non-performance of the undertaking.
Cass. civ., 30 juin 1925, D.P. 1927, 1, 29. – Zenati-Castaing F., Revet Th., Les
biens, p. 166, n° 102 and p. 285, n° 179.
n° 134. – Bénabent A., Les obligations, p. 103, n° 144. – Terré F., Simler Ph.,
Lequette Y., Les obligations, p. 278, n° 270.
Cass. com., 25 nov. 1986: Bull. civ. IV, n° 222.
n° 232. – Huet J., Les principaux contrats spéciaux, p. 224, n° 11253.
Future goods must exist before they can be individualised: Cass. civ., 29 mars 1886:
DP 1886, 329.
But identification must be proved. It will be deemed proven if done in the presence
of the transferee (Req., 18 mai 1927: S. 1928. 1. 93), of a third party (Req., 22 janv.
1868: S. 1868. 1. 115) or of a transporter (Rouen, 28 janv. 1878, DP, 1879. 2. 102).
n° 232 seq.
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92
5.2.2. The role of party autonomy and its relationship
to third party interests
As a rule, party autonomy is central to French law on transfer of property.
Parties can decide when and how the transfer takes place.582 They thus
enjoy great freedom in the way they draft their contract.
Nevertheless, this freedom has two boundaries. On the one hand, if the
parties decide nothing, the transfer of ownership occurs automatically, ipse
jure, as soon as the parties agree on the transfer of ownership. On the other
hand, the parties cannot restrict the effects of the transfer of ownership,
notably by allowing the transferor to keep durable ownership rights to the
asset. Notwithstanding these two restrictions, there are four types of clauses
that can affect the transfer of ownership.
The first clause (terme suspensif – C. civ., art. 1185583) links the transfer
of ownership to a future event that will take place at a moment that is not
yet known. As soon as the event takes place, the transfer occurs.
The second clause (condition suspensive – C. civ., art. 1168584) links the
transfer of ownership to a future event that might take place at a moment
that is not yet known. If this event does not occur, the transfer of property
does not take place. The seller thus remains owner pendente conditione, as
the transfer of property only takes place if the condition is fulfilled. If the
condition is fulfilled, the transfer is retroactive to the day of the signing
of the contract (C. civ., article 1179585), unless the parties have provided
582
583
584
585
The transfer of property can thus be delayed. Specifically in consumer contracts, if
the consumer is entitled to retract his consent, the transfer should only take place
at the end of the period of retraction.
C. civ., art. 1185: A term differs from a condition, in that it does not suspend the
undertaking, of which it only delays the fulfilment. – Bénabent A., Les obligations, p. 229, n° 302. – Terré F., Simler Ph., Lequette Y., Les obligations, p. 1148,
n° 1202. – Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, p. 186, n° 192.
C. civ., art. 1168: An obligation is conditional where it is made to depend upon a
future and uncertain event, either by suspending it until the event happens, or by
cancelling it, according to whether the event happens or not. – Bénabent A., Les
obligations, p. 243, n° 320. – Terré F., Simler Ph., Lequette Y., Les obligations,
p. 1170, n° 1230. – Collart Dutilleul F., Delebecque Ph., Contrats civils et
commerciaux, p. 186, n° 193.
C. civ., art. 1179: A condition which is fulfilled has a retroactive effect to the day
when the undertaking was contracted. Where the creditor dies before the condition is fulfilled, his rights pass to his heir. – Bénabent A., Les obligations, p. 244,
n° 322. – Terré F., Simler Ph., Lequette Y., Les obligations, p. 1172, n° 1231.
93
otherwise. A sale that is subject to a reservation of title586 is an example of
such a clause.
The third clause is a condition subsequent (condition résolutoire),587
where the transfer of property is immediate at the time of the contract, yet
if a certain event occurs, the transfer is rendered retroactively void.588 If the
event does not occur, the sale is definite.
The last clause constitutes a sale with a repurchasing faculty (vente à
réméré – C. civ., art. 1659 to 1673).589 In this case, the seller has the right
to buy back the item he sold within a period of five years under the implied
condition that he provides compensation for all the costs of the sale and
the value added to the asset. This type of condition is often used for shares
and other bonds.590
There are nevertheless certain restrictions to party autonomy, due for
instance to the nature of the asset. For example, if the contract concerns
future assets,591 the transfer can only take place when the asset comes into
existence. In the case of generic goods, the transfer only takes place when
they have been individualised.592
Additionally, as a means of protection of third parties, certain rules
counteract the consensual principle. This is the case of article 2276 (former
C. civ., art. 2279) of the Civil Code that protects the possessor in good
faith, and also third parties who relied on this appearance.
In a similar manner, registration rules for immovable property protect
the party who first had his title registered.593 Rules on the assignment of
receivables also give precedence to the transferee who first accomplished
the formalities prescribed by article 1690 of the Civil Code.
586
587
588
589
590
591
592
593
Ghestin J., Réflexions d’un civiliste sur la clause de reserve de propriété, D. 1981,
p. 1. – Ghozi A., Nature et transmissibilité de la clause de réserve de propriété, D.
1986, chr. p. 317. – Guyenot et Fresy, Similitudes et divergences de la conception
de la réserve de propriété en droits français et anglais, Gaz. Pal. 1984, Doct. 116. –
n° 194.
Bénabent A., Les obligations, p. 246, n° 324-326. – Terré F., Simler Ph., Lequette
Y., Les obligations, p. 1174, n° 1234.
Bénabent A., Les obligations, p. 246, n° 326. – Terré F., Simler Ph., Lequette Y.,
Les obligations, p. 1174, n° 1235-1236.
n° 196.
Heinrich, La vente à réméré d’obligations, JCP éd. E, 1984, II, 14282.
See supra 5.2.1: Specific goods – generic goods. – Zenati-Castaing F., Revet Th.,
Les biens, p. 168, n° 104.
See supra 5.2.1: Specific goods – generic goods.
Cass. 2e civ., 8 janv. 1992: Bull. civ. II, n° 12.
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94
(a)
The limits of party autonomy
In French law, parties are free to choose some of the consequences of the
transfer of title. They can, for example, postpone the time of transfer of
title, for instance by inserting a time period or a condition.
On the other hand, it is not possible in French law to limit the effects of
the transfer of ownership, nor create new forms of transfer. The new owner
must have full property rights to the asset. In particular, it is not possible
to limit ownership rights in time,594 or to transfer the right of property for
guarantee purposes.595
It is also essential that the transferor is entitled to transfer the asset.
French law applies two fundamental principles: nemo plus juris ad alium
transferre potest quam ipse habet (the asset is transferred in its legal state)596
and nemo dat quod non habet (the person who does not own cannot
transfer).597 In some cases, the aforementioned “theorie de l’apparence”598
will nevertheless protect third parties.
Furthermore, due to reasons of third party protection, the transfer of
ownership can only take place in the future. Nevertheless, parties to a
contract are free to decide otherwise in their internal relationship and thus,
for example, they can decide to carry out the required acts before they (can)
take effect, e.g. an “anticipated” constitutum possessorium.
(b)
Protection of third parties
Even if the transfer of property is immediate, there are rules that protect
third party interests and in particular the fact that third parties might be un594
595
596
597
598
Terré F., Simler Ph., Les biens, p. 144, n° 150. – Except by using a resolutive
clause, see Collart Dutilleul F., Delebecque Ph., Contrats civils et commerciaux, p. 186, n° 192.
Cabrillac M., Mouly Ch., Droit des sûretés, 7e éd. Litec 2004, n° 529, p. 451. – See
on the other hand, the retention of title for guarantee purposes, infra 15: Rules for
the reservation of title.
See C. civ., art. 2477, al. 2. – Roland H., Boyer L., Adages du droit français, Litec
4e éd. 1999, p. 506, n° 259.
See supra at 5.1.3.(b): Legal nature of the transfer. – Ghestin et allii, Introduction
générale, LGDG, 4e éd. 1994, n° 838, p. 828 et suiv. – Zenati-Castaing F., Revet
Th., Les biens, p. 301, n° 187. – Danis-Fatôme A., Apparence et contrat, préf. G.
Viney, LGDJ, bibl. dr. privé, t. 414, 2004. – Sourioux J.-L., La croyance légitime,
JCP 1982, I, 3058. – Leroux E., Recherche sur l’évolution de la théorie de la propriété apparente dans la jurisprudence depuis 1945, RTD civ. 1974, 509.
95
able to know of the modification of the property right. As a rule, the general
principle of opposability (opposabilité) provides that the transfer of ownership is opposable against third parties solo consensu (C. civ., art. 1165).
Third parties thus have a duty to inform themselves of the existence of an
ownership right. Yet, as it is often very difficult for third parties to ascertain ownership rights, a number of rules are set down in the Civil Code to
protect third parties.
Article 1141 of the Civil Code lays down a general rule that, if a movable corporeal asset has been transferred twice, preference is given to the
person who has been given possession of the asset, if this person is acting in
good faith.599 This text is an application of article 2276 al. 1 (former C. civ.,
art. 2279, al. 1) of the Civil Code. It only applies to corporeal movable
assets that are not subject to any publication or registration requirement
when transferred.
It is also necessary that the second acquirer have acted in good faith,
in other terms that he acted in ignorance of the fact that ownership of the
asset had already been transferred. Additionally, the second acquirer must
possess the asset. This is not the case if he benefits from a constitut possessoire
and holds the asset corpore alieno.600 The situation would be different on the
other hand, if he possesses following a traditio brevi manu.601 Ratio legis of
this rule is to ensure publication to third parties and thus to protect these
third parties. This publicity results from possession.602 If however, the possessor is acting in bad faith, the rule prior tempore, potior jure is preferred.603
Nevertheless, in the case of some movables, it is difficult to ensure publication of the transfer. Therefore, the law provides for publication with
respect to certain movables.
If the movable is registered, such as a ship, a boat or an airplane, the
transfer of ownership can only be opposed against third parties if it has
been published in a register held by the Customs service (for ships),604
by the Commercial Court (for boats),605 or by the administrative depart599
600
601
602
603
604
605
C. civ., art. 1141: Where an asset which one is bound to transfer or deliver to two
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 158, n° 148. – ZenatiCastaing F., Revet Th., Les biens, p. 288, n° 181.
Terré F., Simler Ph., Les biens, p. 324, n° 408. – Decrét n° 67-967, 27 oct 1967,
art. 93.
Terré F., Simler Ph., Les biens, p. 324, n° 408. – C. dom. publ. fluv., art. 101.
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96
ment responsible for civil aviation (for airplanes).606 In the same spirit,
the transfer of rights to trademarks or patents must be registered with the
National Institute for Industrial Property607 or on the National Register on
Trademarks.608 On the other hand, the registration of cars has no effect on
ownership rights with respect to third parties.609
In respect of claims, their assignment (transfer) must be notified to
the debtor in order to render the transfer opposable against third parties
(C. civ., art. 1690).
5.2.3. Problems, inconsistencies, critique
French commentators610 criticize the formalities required by civil law for
the assignment of receivables (C. civ., art. 1690). Notification to the
debtor is an essential element of the assignment mechanism: even if the
transfer between the parties takes place when the contract is concluded, it
does not have any effect with respect to third parties until the notification
is performed. Such a procedure is cumbersome and leads to greater costs,
whereas the aim of protecting third parties is not really reached.
Furthermore, it is interesting to underline the fact that the transfer of
corporeal goods is possible and opposable against third parties without any
formality and even without any publicity in the case of a transfer constitutum possessorium.611 It is paradoxical that the security of the law is not
considered to be endangered in this case.
Additionally, the transfer solo consensu generates many problems that
have yet to be solved. First and foremost is the ignorance of most lawyers
as to the exact mechanism of transfer of ownership. It is commonly understood that the transfer of ownership is automatic and that in fact the
transferor has no obligation to transfer.612 As a result, this transfer appears
to be an effect of the operation of law and not of party autonomy.
606
607
608
609
610
611
Terré F., Simler Ph., Les biens, p. 324, n° 408. – C. av. civ., art. L 121-11.
Institut national de la propriété industrielle – C. prop. intell., art. L 613-9.
C. prop. intell., art. L 714-7.
Cass. 1e civ., 19 mars 1958: D. 1958, 353. – Yet see Cass. 1e civ., 30 oct. 2008: D.
2008, 2935: the acquisition of a car without its registration papers (carte grise) only
gives equivocal possession.
For a general presentation, Cashin-Ritaine E., Les cessions contractuelles de créances de sommes d’argent dans les relations civiles et commerciales franco-allemandes, Bibl. dr. privé t. 348, LGDJ 2001, p. 190, n° 314 seq. – Terré F., Simler
Ph., Lequette Y., Les obligations, p. 1219, n° 1279.
97
This appearance is, of course, false and can easily be rebutted by the
recognition of the retention of title clause that enables the transferor to
retain ownership until full payment of the price.613 Additionally, the transfer of risk to the new owner, who is not yet in possession, as delivery has
not yet taken place, creates numerous problems, which could be solved by
joining the transfer of risk to the material “traditio” (delivery) of the asset.614
612
5.3.
Valid obligation (causal or abstract system)
5.3.1. The kinds of obligations underlying the transfer of ownership
The Civil Code lists a number of ways to acquire ownership in French law
(C. civ., art. 711 and 712615).616 In general, the transfer will result from a
contract: sale of goods, barter, donation, or exchange.
Each type of contract is governed by specific rules detailed in the Civil
Code as to the conditions necessary for its validity. Nevertheless, in these
contracts, the transfer of title is always consensual. Even in the case of a
gift from hand to hand (don manuel), the intention to transfer the property
is expressed by the material “traditio” of the asset. There is no separate act
creating an obligation to transfer the asset.
Sometimes the transfer will take place by operation of law. This happens
without the express consent of the transferor. For example, the property of
a deceased person will be transferred immediately to his legal heirs if he
does not leave a will (C. civ., art. 724617). This can be explained by the
principle of “the continuation of the deceased person” in the person of his
heirs,618 or by the fact that the law makes presumptions as to the wills of ab
612
613
614
615
616
617
618
Comp. the discussion of the “obligation de donner”: at supra 5.1.1: The “unititular”
or “uniform” concept of the transfer of ownership.
See infra 15: Rules for the reservation of title.
Comp. in maritime affairs the loi n° 69-8 du 3 janv. 1969 relative à l’armement et aux
ventes maritimes, art. 31 seq.
C. civ., art. 711 and 712.
C. civ., art 724: Heirs designated by legislation are vested by operation of law in
possession of the property, rights and actions of the deceased; Universal legatees
and donees are vested in possession in the conditions provided for in Title II of this
Book. Failing them, succession is acquired by the State who needs a court order to
take possession.
Hereditas personam defuncti sustinet, see Roland H., Boyer L., Adages du droit français, Litec 4e éd. 1999, p. 305, n° 155.
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98
intestat deceased persons.619 Similar effects are produced if the property is
transferred as a result of the application of the statute of limitations, that
transfers ownership to the bona fide possessor of the asset after a certain
lapse of time.620 This is also the case of State nationalisations.621
Transfer can occur by a court order. This results, for example, from
the sale of a company in an insolvency proceeding (cession judiciaire d’une
entreprise en difficulté622).
Unilateral promises with a transfer effect are also recognised in French
law.623 This is the case, when the transfer results from a will (C. civ.,
art. 895624).625
5.3.2. Validity of the obligation – different forms
of defects regarding the obligation and their effects
If the transfer of property results from a contract, this contract can only be
declared void by a court decision. Until that decision is made, the transfer
of property is legally valid.626
The contract will be declared void if one of the conditions of validity
is missing, such as the lack of legal capacity of one of the parties, or the
existence of a mistake, a fraud or a threat at the time the contract was
concluded.627
It is to be remarked that it is generally not possible to avoid the contract
with retroactive effect on account of a mistake regarding the solvency of
the other party.628
If the contract is void, the subsequent transfer of property is also void
and the transferee loses his ownership, if he does not benefit from another
619
620
621
622
623
624
625
626
627
628
See supra 5.1.3: Short overview on the basic transfer requirements.
C. com., art. L 642-1 seq.
Malaurie Ph., Aynès L., Les biens, p. 159, n° 552-553.
C. civ., art. 895: A will is a transaction by which a testator disposes, for the time
when he is no longer alive, of the whole or part of his property, and which he may
revoke.
Malaurie Ph., Aynès L., Les biens, p. 159, n° 552-553.
See supra 5.1.3.(a): Legal requirements for the transfer.
“Irrtum über die Zahlungsfähigkeit” – Yet see Cass. 1e civ., 19 mars 1985: JCP 1986, II,
20659, note Bouteiller: the guarantor was mistaken as to the solvency of the main
debtor.
99
title.629 This voidness has a retroactive effect. As a consequence, the transferee has to give the asset back to the former owner. Restitution rules are
a direct application of the rules on voidable contracts (C. civ., art. 1304)
and are thus subject to the general statute of limitations period of five years
(C. civ., art. 2224 new version).630 As a result, each party to the contract
must return the property received to its former owner.631
Nevertheless, with respect to third parties, this retroactive principle
of restitutions has limited effects. Third parties are thus protected by the
general rules on possession: the possessor in good faith is deemed to have
acquired the ownership of the asset notwithstanding the lack of rights of
his predecessor.632
Similar effects with respect to the transfer of property result from the
termination of a contract, especially termination for non-payment and
non-conformity. The same is to be said about contracts subject to a condition subsequent.633
5.4.
Traditio
French law does not, as a rule, require “traditio” (delivery, transfer of possession) for the transfer of ownership of movables.634 Nevertheless, if the
acquirer has possession of the asset, he is presumed to be the owner.635
Therefore, the rules on acquisition and transfer of possession are central to
French property law.636
There is, however, one case where “traditio” is necessary for the transfer
of property: the gift from hand to hand (don manuel). This act is, in fact, a
substitute for the normal formality required for a donation, i.e. a notarised
document that guarantees the intention of the donor (C. civ., art. 931).
However, this material act does not execute an obligation to transfer, because as long as the “traditio” of the asset has not taken place, there is no
contract.637
629
630
631
632
633
634
635
636
637
Ass. plén., 6 janv. 1994: Bull. civ. ass. plén. n° 1.
Cass. 1e civ., 24 sept. 2002: Bull. civ. I, n° 318, p. 168; D. 2002, 369, note Aubert.
See infra 19: Consequences of the restitution of the movable to the owner.
See art. 1141 C. civ. and infra 12: Rules of good faith acquisition. – Terré F., Simler
Ph., Les biens, p. 326, n° 409.
Terré F., Simler Ph., Les biens, p. 318, n° 397 seq. – C. av. civ., art. L 121-1.
See supra, 2.3: Acquisition of possession.
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100
5.5.
Registration
In some cases there is a transfer of ownership in movables by registration.
This is the case, for example, of boats638 and airplanes.639 It is also the
case for shares.640 In rare circumstances the act of registration is considered
to be a “constitutive” act, actually transferring ownership.641 In general,
nevertheless, it has only a “declaratory” nature (i.e. reflecting a transfer of
ownership that has already taken place).642
5.6.
Consensual system
In French law, ownership rights generally pass with the conclusion of the
contract. This system departs from the Roman tradition and tends to promote party autonomy.643
Nevertheless, parties can decide to link the transfer of ownership, not
to the conclusion of a contract, but to the effective performance of the
contract (e.g. the reservation of title).
The solo consensu principle only applies when a transfer of ownership
is possible, in particular only in respect of identified assets. This is not the
case for future assets or for assets that have to be individualised first, such
as generic goods. There is a principle that rights in rem can only refer to
a particular, individual asset. The transfer of “ownership” is linked to an
“identification” of the asset.
638
639
640
641
642
643
For ships: Terré F., Simler Ph., Les biens, p. 324, n° 408.; Decrét n° 67-967, 27 oct
1967, art. 93. – For boats: Terré F., Simler Ph., Les biens, p. 324, n° 408. – C. Dom.
Publ. Fluv., art. 101.
Terré F., Simler Ph., Les biens, p. 324, n° 408. – C. av. civ., art. L 121-10.
Terré F., Simler Ph., Les biens, p. 353, n° 447. – C. mon. et fin., art. L 431-1 and L
431-2 – Blanluet G., Le transfert de propriété des actions, Dr. et patr. oct. 2004,
p. 81.
I.e. for aircraft.
I.e. for cars.
From a historical standpoint, the Civil Code merely adopted the system that was
applicable in practice before the Revolution (Ancien Droit). The old French law had
maintained the Roman law requirement of a “traditio” of the asset, yet in practice
this traditio had become abstract. Jurists thus replaced the material traditio by a
clause in the contract (clause de dessaisine-saisine). The acquirer became owner at
the time of the contract, even if the asset was still held by the seller. The Civil Code
merely confirmed this system. – Terré F., Simler Ph., Les biens, p. 318, n° 398 seq. –
n°186.
101
Furthermore, if the sale refers to future assets, the transfer of ownership is subject to the same rules that apply to generic goods: the transfer
is only possible once the asset exists.644 There has been some discussion as
to the moment at which this transfer takes place: either at the time the
asset comes into existence or at the time the asset is delivered to the buyer.
Court decisions seem to prefer the first solution: the transfer takes place
once the asset has been created and can be delivered, even if delivery has
not effectively taken place.645
If the goods are not yet owned by the transferor, article 1599 of the Civil
Code provides that this sale is void.646 In this case, the right to avoid the
contract belongs only to the buyer.647 Nevertheless, if the seller acquires
ownership of the asset before the buyer has exercised this right, the contract
is retroactively validated and the transfer of ownership takes place at the
moment the seller becomes the owner.648
If the contract provides for alternative obligations (C. civ., art. 1189),649
the transfer of ownership is linked to the choice of the person who can decide which obligation shall be performed.650 In general, the choice is left
to the debtor (C. civ., art. 1190).651 The transfer of ownership only takes
place at the time of the choice.
If one of the assets, being the object of one of the alternative obligations, has perished, the transfer of ownership of the other asset then takes
place automatically (C. civ., art. 1193).652 If the choice of which obligation
shall be performed is left to the creditor, the transfer is also automatic, as
soon as the creditor has expressed his preference. Yet if the asset disap644
645
646
647
648
649
650
651
652
Goré F., Le moment de transfert de propriété dans les ventes à livrer, RTD com.
1947, p. 4.
Cass. req., 28 nov. 1900: D. 1901, 1, 65.
C. civ., art. 1599: The sale of an asset belonging to another is void: it may give rise
to damages where the buyer did not know that the asset belonged to another.
Cass. 1e civ., 12 juil. 1962: D. 1963, 246. – And infra 5.9: The right to dispose.
C. civ., art. 1189: The debtor of an alternative obligation is discharged by the delivery of one of the two assets which were included in the obligation.
Terré F., Simler Ph., Lequette Y., Les obligations, p. 1179, n° 1239. – Bénabent
A., Les obligations, p. 103, n° 144.
C. civ. art. 1190: The choice belongs to the debtor, where it was not expressly
granted to the creditor.
C. civ. art. 1193: (1) An alternative obligation becomes outright, where one of the
assets promised perishes and may no longer be delivered, even through the fault of
the debtor. The price of that asset may not be offered in its place. (2) Where both
have perished, and the debtor is at fault as to one of them, he shall pay the price of
the one which has perished last.
102
France
pears due to the fault of the debtor, no automatic transfer of ownership
takes place in respect of the remaining asset, as the creditor still has the
right to claim either compensation for the perished asset or the alternative
remaining asset.
If the contract is subject to a condition precedent (condition suspensive),
meaning that the contract only comes into force if and when this future
condition is met, the transfer of property will only take place at the time
the condition comes into existence.653
As mentioned before,654 the consensual principle is neither mandatory
nor applicable erga omnes without restrictions. The solo consensu principle
is only fully effective between the parties to a contract.655 With respect to
third parties, rules on registration and rules governing possession of movables656 limit the effects of the solo consensu principle.657 Yet, the passing of
ownership upon the conclusion of the contract is – in practice – regularly
the case.
This immediate transfer of ownership has many consequences. The
transfer of ownership upon the conclusion of the contract gives the buyer
the right to dispose of the movable (e.g. to resell it) even though the price
has not yet been paid. On the other hand, the seller is protected against
non-payment of the price. He has a right to retain the asset if the contract
specifies that payment is immediate658 and he has a legal lien on the asset
to guarantee the payment of the price.659
Normally, as the seller no longer has any ownership rights to the asset,
he has lost the right to use it (usus) and to reap the fruit (fructus), unless
the agreement between the parties provides otherwise. As the acquirer is
now the owner, he is entitled to recover the asset if it is stolen from the
transferor’s premises between conclusion of the contract and delivery and
also to claim for unjustified enrichment when the object is unlawfully used
by a third party during the period, if any, between conclusion of the contract and delivery.
653
654
655
656
657
658
659
See supra 5.2.2: Role of party autonomy especially in relation to third party interests.
See supra 5.1.3.(b): Legal nature of the transfer.
p. 184. – Bénabent A., Les contrats spéciaux civils et commerciaux, p. 99, n° 143.
p. 184.
n° 339.
C. civ., art. 2332-3, al. 1er, 4°. – Cabrillac M., Mouly Ch., Droit des sûretés, p. 540
n° 647 seq.
5.7.
103
Real agreement
French law does not require a “real” agreement as such, nor any form of juridical transaction that could be compared with it. As explained previously,
the transfer of ownership passes solo consensu, as a form of “civil traditio”.660
However, this civil traditio does entail a double unilateral declaration of
intent, whereby the transferor renounces his right of ownership and the
transferee agrees to become the owner.661 This double unilateral declaration
is masked by the fact that acceptance of the terms of the contract suffices
to transfer ownership.662
There is however one exception that requires a real agreement: the
mechanism of the “don manuel”, which enables the transfer of a gift from
hand to hand. Yet, even in this case, the transfer of ownership passes solo
consensu, the “traditio” of the asset appearing simultaneously as both the
condition precedent to and the performance of the transfer. Such a contract, created by the material transfer, is a real contract (contrat réel).663
5.8.
Payment
Under French law, unless there is an agreement to the contrary, there is no
requirement that the transfer of (full) “ownership” requires payment.664 A
sales contract in French law brings about two obligations: one for the seller
to deliver the asset concerned and another for the buyer to pay the price
agreed upon (C. civ., art. 1582).665 Unless the parties to the contract have
expressly agreed on a reservation of title666 until full payment of the price,
the transfer of ownership is immediate.
660
661
662
663
664
665
666
See supra, 5.1.1 The “unititular” or “uniform” concept of the transfer of ownership.
See supra, 5.1.1: The “unititular” or “uniform” concept of the transfer of ownership.
See supra, 5.1.1: The “unititular” or “uniform” concept of the transfer of ownership.
See transfer solo consensu supra, 5.1.1: The “unititular” or “uniform” concept of the
transfer of ownership. – C. civ., art. 1583: [the sale] is complete between the parties,
and ownership is acquired as of right by the buyer with respect to the seller, as soon
as the asset and the price have been agreed upon, although the asset has not yet been
delivered or the price paid.
C. civ., art. 1582: (1) A sale is an agreement by which one person binds himself to
deliver an asset, and another to pay for it.
See infra 15: Rules on the reservation of title.
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104
Both parties are nevertheless entitled to suspend the performance of
their obligation if the other party does not perform the contract (exceptio
non adimpleti contractus).667
5.9.
Right to dispose
The transferor must own the asset or the right he is transferring,668 or be
entrusted with the right to dispose of the asset by the owner of the asset.
French law applies the general principle nemo plus juris transferre potest quam
ipse habet.669 In other terms, one can only transfer what one has.670
Article 1599 of the Civil Code provides that the sale of goods belonging to somebody else is void. The right to have the contract declared void,
however, belongs only to the buyer.671 If the seller acquires ownership of the
asset before the buyer has exercised this right, the contract is retroactively
validated and the transfer of property takes place at the moment the seller
becomes the owner.672
The impact of this rule is limited to the internal relations of the parties. With respect to third parties, the rule provided by article 2276 (former
C. civ., art. 2279) of the Civil Code lays down that a third party, acting in
good faith, acquires ownership of an asset he has received a non domino.673
6.
Rules for double and multiple selling
In the case of double selling, French law is very clear. Article 1599 of the
Civil Code provides that the sale of an asset belonging to another person
is void.674 If A sells the same asset to B and afterwards also to C, then in
application of article 1599 of the Civil Code, the contract between A and
C is void and, therefore, C cannot become the owner.
Nevertheless, in the case of movables, this rule is set aside by the rules
on good faith acquisition (C. civ., art. 2276 al. 1 – former C. civ., art. 2279
667
668
669
670
671
672
673
674
Terré F., Simler Ph., Lequette Y., Les obligations, p. 623, n° 630 seq.
See also C. civ., art 2477, al. 2. – Didier P., Les biens négociables, in Mélanges
Guyon, Dalloz 2003, p. 327.
Cass. 1e civ., 12 juil. 1962: D. 1963, 246.
C. civ., art. 1599: The sale of an asset belonging to another is void: it may give rise
to damages where the buyer did not know that the asset belonged to another.
7. Which are the rules for selling in a chain?
105
al. 1). This means in particular that the current possessor is deemed to be
the owner. Ownership by B or C depends on whether the one or the other
is in possession of the asset and acting in good faith. If C is in possession,
he cannot acquire ownership if he is acting in bad faith, i.e., if he knows
that the asset has already been sold once.675 If C is acting in bad faith, he is
also liable towards B for having prevented the performance of the contract
between A and B.676 If A is still in possession, B acquires ownership.
If the seller A has handed the asset over to B, A will be in default in
relation to the second buyer C, since this contract cannot be fulfilled. A
will thus be contractually liable to pay damages to C.677
7.
Which are the rules for selling in a chain?
Selling in a chain encompasses the following situation: A sells to B and B
to C, A delivers the asset directly to C. In such a situation, B and C successively become owners. There is no direct transfer from A to C. This
rule results from the mechanism of transfer solo consensu: the transfer of
ownership is automatic at the time of conclusion of the contract, even if
the asset is not yet delivered.
7.1.
General rules, valid contracts
If an asset is sold in a chain, every acquirer derives his ownership rights
directly from his immediate seller. French law applies the rule “nemo plus
juris”,678 meaning that a person can only transfer as many rights as he receives from his own transferor.
Therefore if A sells to B and B sells again to C then, even if A delivers
the asset to C, C only derives his rights from B. This means in particular
that B is only liable towards C in the limits of the contract between B and
C. In some cases, C can invoke the liability of A, but only within the conditions set down in both contracts A / B and B / C.
675
676
677
678
Application of tort law under article 1382 of the Civil Code.
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106
7.2.
Rules when contracts fail
In general, if a contract of sale is void ab initio, ownership cannot pass to
the buyer. Similiarly, ownership cannot pass to the buyer in case of avoidance of a voidable contract, since this has a retroactive effect in French law.
Hence, the transferee is considered never to have been the owner, even if
the asset has been handed over to him.
If the asset has already been handed over to the transferee, it has to be
returned to the transferor. The transferor can sue for the surrender of the asset both by an action based on ownership (revindication – action pétitoire),
but also by an action ex unjust enrichment (action de in rem verso).
Nevertheless, the rules on the limitation of actions can come into conflict with these principles. In particular, depending on whether the contract
pertains to a movable or an immovable asset, the parties can act within a
period of five years (movables)679 or thirty years (immovables).680
Until the 19th of June 2008, depending on the reason for which the
contract was void, the parties could act within a period of five years (nullité
relative) and thirty years (nullité absolue). In this respect, the avoidance on
account of error, wilful misrepresentation and threats had to be brought by
suit within five years of the discovery of the cause of voidness.681
If the reason (causa) or the object of the contract was illegal or contrary
to accepted standards of behaviour, the contract could be contested during
a period of thirty years from the day on which it was concluded.682 This
system has now disappeared from French law, the prescription period now
depending upon a distinction as to the type of asset involved. For movables,
the period of limitations is currently five years.
Some case constellations that illustrate the legal situation follow.
If the contract between A and B is invalid, but the contract between
B and C is valid, then C has acquired a non domino from B. In this case,
B could not transfer the asset to C (nemo plus juris principle and nemo dat
quod non habet principle). Rules on good faith acquisition thus apply to the
ownership of C,683 and C is presumed to be owner (C. civ., art. 2276 al. 1
new version).
679
680
681
682
683
C. civ., art. 2224 (new version): Les actions personnelles ou mobilières se prescrivent par
cinq ans à compter du jour où le titulaire d’un droit a connu ou aurait dû connaître les faits
lui permettant de l’exercer.
C. civ., art. 2227 (new version): Le droit de propriété est imprescriptible. Sous cette
réserve, les actions réelles immobilières se prescrivent par trente ans à compter du jour où
le titulaire d’un droit a connu ou aurait dû connaître les faits lui permettant de l’exercer.
8. Transfer or acquisition by means of indirect representation
107
If the contract between B and C is invalid, but the contract between A
and B is valid, then B has the right to transfer ownership. It is not a case
of acquisition a non domino. C does not acquire ownership rights as against
B. Article 2276 al. 1 (former C. civ., art. 2279 al. 1) of the Civil Code does
not apply. Nevertheless, rules on acquisitive prescription can be used. C
then becomes the owner after a period of five years for movables (C. civ.,
art. 2224 new version).
If both contracts are invalid, neither B nor C acquires ownership by contract. Nevertheless, rules on acquisitive prescription can be used. C could
then become owner after a period of five years (C. civ., art. 2224 new version).
8.
Transfer or acquisition by means of indirect
representation
Representation is indirect (représentation imparfaite) if the agent acts on
behalf of the principal, but in his own name.684 The agent thus declares
that he acts for a third party, but does not reveal the name of the third
party. Such a situation can be found in commercial law under the so-called
contrat de commission (C. com., art. L 132-1 seq.). This contract deploys its
effects in two stages: first, the agent contracts with the other party; then
the principal becomes a party to the contract. As the agent acts in his own
name, logically, he is party to the contract, yet ownership rights pass directly
to the principal.685 The agent only detains the asset for the principal.686
If the intermediary is insolvent, the principal can revindicate any goods
that the intermediary was supposed to sell (C. com., art. L 624-13687). On
the other hand, the principal may not exercise against the third party the
rights acquired by the intermediary on the principal’s behalf – or the other
way round.688
684
685
686
687
See also supra 5.1.3.(b).
Terré F., Simler Ph., Lequette Y., Les obligations, p. 178, n° 173, p. 182, n° 181. –
p. 556.
Cass. com., 7 mars 2000: Bull. civ. IV, n° 46. – Auckenthaller F., Commettant,
commissionnaire à la vente: détermination du véritable titulaire de la créance envers
le tiers contractant, D. 1998, Chr. 53.
Articles L 624-9 to L 624-18 of the Commercial Code were last modified by the
ordonnance n° 2008-1345 du 18 déc. 2008. C. com., art. 624-13: Peuvent être revendiquées les marchandises expédiées au débiteur tant que la tradition n’en a point été effectuée
dans ses magasins ou dans ceux du commissionnaire chargé de les vendre pour son compte.
Néanmoins, la revendication n’est pas recevable si, avant leur arrivée, les marchandises
ont été revendues sans fraude, sur factures ou titres de transport réguliers.
France
108
9.688
Consequences in the case of insolvency
of one of the parties involved
9.1.
General issues
The rules on the insolvency of one of the parties to a contract can be found
in the law on insolvency689 that has been codified in the Code de commerce
under the articles L 611-1 to article L. 670-8.
Like in other European countries, the insolvency proceeding is governed
by a number of general principles and, in particular, all creditors have to
be treated equally. To comply with this principle, article L 622-7 of the
Commercial Code lays down that the judgment that opens the insolvency
proceeding automatically prohibits the satisfaction of any claims existing
at that date.
The opening of an insolvency proceeding does not lead to the automatic termination of the contracts concluded by the insolvent debtor.690
Similarly, it has no effect on the right of ownership as such: the owner of an
asset has, in principle, the right to revindicate his property held by the debtor.691 Nevertheless, the commencement of the proceedings has different
effects on the contract depending on whether the contractual obligations
have been performed completely by both parties or just by one of them.
If both parties have not performed their obligations in full, the insolvency administrator has the exclusive right to chose whether he wants to
fulfil the obligation and thus claim the counterpart, or whether he wants
to repudiate the contract (C. com., art. L 622-13, II).692 If no insolvency
administrator is appointed, this choice is left to the insolvent debtor.
688
689
690
691
Cass. civ., 20 juillet 1871: DP, 1871.1.232: « … le commettant qui en s’effaçant pour
ne laisser apparaître que le commissionnaire, a renoncé à toute action contre les tiers, de
même que les tiers n’ont aucune action contre lui. » – Cass. com., 15 juil. 1963: Bull.
civ. III, n° 378.
Loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaire
des entreprises modifiée par la loi n° 94-475 du 10 juin 1994. This law was entirely
revised by the law n° 2005-845 du 26 juil. 2005. – Roussel Galle Ph., Réforme du
droit des entreprises en difficulté par la loi de sauvegarde des entreprises du 26 juillet
2005, Litec 2005. Two new texts have recently modified this part of the Commercial
Code: ordonnance n° 2008-1345 du 18 décembre 2008 and ordonnance n° 2009112 du 30 janv. 2009.
C. com., art. L 622-13, al. 6.
Nevertheless, Cass. com., 8 mars 1994: Bull. civ. IV, n° 101, limiting the right of a
seller to revindicate within three months after the commencement of an insolvency
proceeding (C. com., art. L 624-9).
9. Consequences in the case of insolvency of one of the parties involved
109
The other party can repudiate the contract, if a summons addressed
to the administrator by registered letter is left unanswered after a month
(C. com., art. L 622-13, II). As an exception to the general rule, in this
case, the termination of the contract is not retroactive.693
There is some discussion as to what an “unfulfilled” contract (contrat en
cours) is.694 It is generally accepted that a sales contract concluded before
the proceedings and providing that the price is to be paid at a later date,
is not an unfulfilled contract, because the transfer of ownership has taken
place. Furthermore, a contract with a reservation of title clause, where the
price has not been paid, is not an unfulfilled contract.695
If the administrator chooses to continue the contract, the obligation
promised by the insolvent debtor must be performed.696 If the debtor is
obliged to pay a sum of money, it must be paid in one instalment. The other
party cannot refuse to perform the contract, even if other obligations due
prior to the proceedings were not fulfilled. This party can only register in
the list of debts its claim relating to those other obligations.697
If the transaction was completed shortly before the opening of the insolvency proceedings, then it may be, in certain circumstances, voidable.698
These contracts are voidable both under specific insolvency rules and under
the actio pauliana (action paulienne). This is the case when there is a fraudulent preference in favour of one creditor or a gratuitous transfer.699
692
9.2.
Insolvency of the transferor
If the transferor is insolvent, it is necessary to determine whether the contract has been performed or not.
If only one of the parties has discharged his obligation in full, the legal situation depends on whether the transfer of ownership has taken place or not.
The transferee, who is in possession of the asset, is normally protected
against the transferor’s general creditors from the moment of conclusion of
the contract, unless the contract has been concluded in fraud of the rights
692
693
694
695
696
697
698
699
C. com, art. L 622-13: “L’administrateur a seul la faculté d’exiger l’exécution des contrats
en cours en fournissant la prestation promise au cocontractant du débiteur …”
In general civil law, the termination of a contract is retroactive.
Roussel Galle Ph., Réforme du droit des entreprises en difficulté par la loi de
sauvegarde des entreprises du 26 juillet 2005, Litec 2005, p. 163, n° 253.
Cass. com., 5 mai 2004: D. 2004, AJ 1525, obs. Lienhard.
C. com., art. L. 622-13 II.
C. com., art. L. 622-13, I.
C. com., art. L. 632-1 seq.
See C. com., art. L 632-1 and art. L 632-4.
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110
of the creditors.700 Nevertheless, the acquirer must pay the price to the
bankrupt’s estate.
If the asset has not yet been delivered, or if the obligation of the transferor has not been performed (i.e. in the cases of a sale of future or generic
goods), the insolvency administrator has the right to decide whether he
wants to perform the contract or not.701
If the insolvent transferor does not yet own the asset(s) but has already
contracted to buy them from a previous seller, under a reservation of title,
the transferee is protected with regard to these goods as in an acquisition
a non domino.702
In all these cases, the transferee is only protected as long as he has paid a
fair price for the asset transferred. In this respect, articles L 632-1 to L 632-4
of the Commercial Code list a number of contracts that are considered to
be void if they have been concluded during the period following the date
on which the debtor became unable to fulfil his financial obligations (date
de cessation des paiements). For example, the transferee is not protected if he
is party to a gratuitous contract. The same goes for contracts which favour
one party exclusively and securities taken within the same period. Article L
632-3 of the Commercial Code specifically considers a contract to be void
if the transferee knew that the transferor was insolvent.
9.3.
Insolvency of the transferee
If the transferee is insolvent, insolvency rules only provide for synallagmatic commutative contracts that may have an effect on the rule of equality between creditors, such as contracts of sale and barter. In the case of
a donation, where the transferee benefits from new assets, insolvency law
does not intervene.
If the seller has not yet delivered the asset, he can refuse to do so until
full payment (privilège du vendeur).703
If the transferor, creditor of the bankrupt debtor, has not been paid
for the asset transferred, French law distinguishes between the situations
where, on the one hand, either a reservation of title has been agreed upon,
or the creditor has a security right and, on the other hand, the situation
where the creditor has neither.
700
701
702
703
Cass. com., 3 févr. 1998: Bull. civ. IV, n° 53. – See C. com., art. L 632-1 to L 632-4.
C. com., art. L 622-13 II: “L’administrateur a seul la faculté d’exiger l’exécution des
contrats en cours en fournissant la prestation promise au cocontractant du débiteur …”.
Yet see C. com., art. L. 622-13 I.
10. Passing of risk and passing of ownership
111
If a reservation of title has been agreed upon, the transferor has the right
to revindicate the asset, as the debtor has never been owner of the asset. A
number of conditions must nevertheless be respected.704
If the creditor has a secured right to an asset of the debtor, insolvency
rules protect the secured creditor. If the creditor has no secured rights (créancier chirographaire), then he will only be paid from whatever assets are
remaining at the end of the proceedings. If the insolvent debtor has already
performed his obligation towards the creditor, then this party must also
discharge his obligation to the bankrupt debtor’s estate.
10.
Passing of risk and passing of ownership
The general principle of French law705 is to transfer the risks to the current
owner of the asset (res perit domino). In this respect, the buyer immediately
becomes the owner and responsible for the risks of loss of the asset as soon as
the contract is concluded, even if the asset has not been delivered (C. civ.,
art. 1138).706 This rule is however, not mandatory.707
In the case of a reservation of title, as the seller remains the owner until
the price is paid, he is responsible for the risks.708 This may be changed by
contract between the transferor and the transferee.
Nevertheless, French law distinguishes between risks arising from the
contract and risks pertaining to the asset. If the contract can not be fulfilled
(risques du contract), the debtor of the obligation that cannot be performed
bears the risks (res perit debitori).709
If, on the other hand, the asset that is the object of the contract is lost
or destroyed (risques de la chose), the current owner bears the risks (res perit
domino).710
704
705
706
707
708
709
710
See infra 15: Rules on reservation of title.
These rules only apply to internal sales. The Vienna Convention on the International Sale of Goods provides otherwise.
Cass. 1e civ., 19 nov. 1991: Bull. civ. I, n° 325: books lost during their transport to
the buyer.
See article L. 132-7 du Code de commerce: “La marchandise sortie du magasin du
vendeur ou de l’expéditeur voyage, s’il n’y a convention contraire, aux risques et périls de
celui à qui elle appartient”.
Cass. com., 19 oct. 1982, arrêt Mecarex: Bull. civ. 1982, IV, n° 321; D. 1983, inf. rap.
p. 12; RTD civ. 1984, p. 515, obs. Huet.
Cass. 3e civ., 27 janv. 1976: Bull. civ. 1976, III, n° 34.
n° 202. – Huet J., Les principaux contrats spéciaux, p. 188, n° 11215.
112
France
There are a number of exceptions to the rule res perit domino. The most
important is probably the following: if the seller has been summoned to
deliver the asset (C. civ., art. 1138 in fine), the seller responsible for late
delivery bears the risk of the loss of the asset (res perit debitori).711 He thus
cannot claim the price of the asset if the risk is realised.712
711
712
R. Libchaber, Demeure et mise en demeure en droit français, in Les sanctions de
l’inexécution des obligations: Bruylant-LGDJ, 2001, p. 113.
Part III:
11.
Types of original acquisition
Original acquisition can be defined as the situation in which the current
owner of an asset has no legal link to the previous owner. This situation
can result either from the fact that there was no previous owner or from the
fact that the previous owner lost his ownership rights through no intent
of his own.
In general, such original acquisition applies to goods that have no master
(choses sans maître and res derelictae). There is no transmission of ownership:
the acquirer becomes the owner as a consequence of a factual situation, not
thanks to the renunciation of the right of another person.
This situation also occurs when the asset is irrevocably attached to a
dominant movable (accessio) or immovable (fixtures). Three types of assets
fall within this category: accessory, “accession” and global.
The first, accessory assets are those which are dependant upon another
asset, without however, losing their distinctiveness713 (C. civ., art. 567714).
This dependency results either from the fact that the accessory asset is a
product of the first asset (genetic relationship715), or from the fact that
the accessory asset is functionally related to the first asset. In both cases,
the second is in the same legal situation as the first (accessorium sequitur
principale716).
The secondary asset follows the same regime as the main asset: ownership is the same and security rights are established in respect of both assets.
As a result, fruit and products (accessories) produced by a main asset belong
to the owner of the main asset.717 Legal qualifications as to the type of asset
(movable or immovable) lead to the same conclusion in respect of the ac713
714
715
716
717
C. civ., art. 567: The part to which the other has been joined only for the use,
ornamentation or completion of the first part is deemed to be the main part.
Zenati-Castaing F., Revet Th., Les biens, p. 179, n° 113; p. 276, n° 173. See
however, a similar rule in favour of the possessor: the possessor acting in good faith
becomes the owner of the fruit, infra 19.1: Entitlement to benefits resulting from the
movable.
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114
cessory asset as the main asset. This situation is particularly important for
movables that are accessory to immovables, such as immeubles par destination718 and fruit.
The second situation, accession, is a phenomenon where two assets are
united to create a single asset, in which both components are indistinguishable as individual assets.
Finally the situation of a global asset (universalité), relates to the fact
that a series of assets may be fictitiously considered as a single asset, although each of the individual assets remains distinguishable. Two types of
global assets are recognised by French law: the factual global (universalité
de fait)719 and the legal global asset (universalité de droit).720
Original acquisition can have many causes: various types of possession
of the asset (occupation and prescription); various types of accessory relationships of one asset to another asset (accession). Original acquisition also
applies to the creation of a new asset,721 whereas the new asset belongs to
its creator.722 Production as such is a specific mode of original acquisition.723
Original acquisition has one main advantage: the rights of the acquirer
are totally new and bear no relationship to any former rights to the asset.
The asset is “cleaned” (purge) of any other rights.
11.1.
Accession of movables
If a movable is incorporated into another movable, French law speaks of
“accession” (C. civ., art. 546).724 The legal title of the new owner derives
718
719
720
721
722
723
724
See supra 1.1.1.(b): Characteristics of rights in rem in contrast to obligations and
infra, 11.2: Commixture and confusion.
Cornu G., Droit civil, les biens, Montchrestien 13e éd. 2007, p. 42.
Cornu G., Droit civil, les biens, Montchrestien 13e éd. 2007, p. 11.
Zenati-Castaing F., Revet Th., Les biens, p. 278, n° 173, applying the same reasoning to the replacement of one good by another through the mechanism of real
subrogation (subrogation réelle).
Or to the person who ordered the asset to be created, cf. the ownership rights of the
employer to creations of his employees (CPI, art. L 611-7), the ownership rights
of the person who provided the material (C. civ., art. 540), except if the work employed had a much higher value than the material used (C. civ., art. 570). See infra
11: Accession of movables.
Becquet S., Le bien industriel, préf. Revet, Bibl. dr. privé t. 448, LGDJ, 2005.
Larroumet Ch., Les biens – Droits réels principaux, p. 608, n° 968, who considers
this concept useless for movables.
115
from the physical changes brought to the movable. This legal phenomenon
only applies to corporeal movables.725
Accession appears in two cases, either as an incorporation of one movable into another (accession par incorporation), or by the growth of a first
movable through its own production (accession par production).
Article 551 of the Civil Code726 provides that the owner of an asset
automatically becomes the owner of everything that is incorporated or attached to the asset, unless the parties provide otherwise.727 Nevertheless,
the current owner must compensate the costs that the previous owner incurred on the incorporated asset.728
The Civil Code lists a number of specific rules applicable to movables
(C. civ., art. 565 to art. 577). The main difficulty encountered is to determine which of the owners of the two objects is to become the owner of
the new asset. The Code specifies that the solution is to be governed by
principles of natural equity (C. civ., art. 565729), yet lists a series of examples
for resolving each particular case. In none of these cases, is good faith a
condition of acquisition of ownership.
However, these rules are rather theoretical. In most cases, the work
done on an asset will be performed as a result of a contract and these property issues will be resolved in the contract. If there is no contract, the possessor in good faith becomes owner; and here again these specific rules on
accession of movables do not apply.
11.2.
Commixture and confusion
Commixture can be defined as the confusion / commingling of two goods
belonging to two different owners.730 This is not to be mistakenly understood as the situation in which a movable becomes part of an immovable
asset and can be qualified as an immeuble par destination (C. civ., art. 524
and 525).
725
726
727
728
729
730
Paris, 13 janv. 1993: D. 1993, inf. rap., 90.
C. civ., art. 551: Everything which unites and incorporates itself with an asset belongs to the owner, according to the rules hereafter laid down.
Cass. 3e civ., 6 nov. 1970: D. 1971, 395.
Cass. 3e civ., 12 mars 1985: Bull. civ. III, n° 50.
C. civ., art. 565 al. 1: Where the right of accession applies to two movable assets
belonging to two different masters, it depends entirely on the principles of natural
equity.
Comp. C. civ., art. 572 seq.
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France
In such a case, three conditions must be met: first, the owner of the
immovable asset and of the movable asset must be the same;731 secondly,
the owner must wish to immobilize the movable; thirdly, there must be an
objective link between the movable and the immovable (either the movable is necessary for the use of the immovable, or the movable cannot be
detached from the immovable without being destroyed). The owner of the
immovable asset does not acquire ownership of both goods, as the whole
process requires that the owner of the immovable asset already be the owner
of the movable asset.
On the contrary, rules on commixture only apply to assets with different
owners. There is no differentiation as to whether the assets are of the same
kind or not, but in all cases separation must be impossible.
In general, the owner of the main asset becomes the owner of the whole
new asset, if he pays compensation to the other owner for the value of
the secondary asset (C. civ., art. 566732). Different criteria can be taken
into account to determine the principal or secondary nature of an asset.
The Civil Code cites: the solely decorative function of the secondary asset
(C. civ., art. 567733); the respective value of each asset or its size (C. civ.,
art. 568734); the labour involved in creating the new asset (C. civ., art. 570
and art. 571735). In some cases nevertheless, the Civil Code institutes common ownership of the new asset (C. civ., art. 572 to art. 577736).
731
732
733
734
735
736
Cass. 1e civ., 5 mars 1991: JCP 1991, IV, 169.
C. civ., art. 566: Where two assets belonging to different masters, which have been
so joined as to form one whole, are nevertheless separable, so that one may subsist
without the other, the whole belongs to the master of the asset which forms the main
part, subject to the obligation of paying to the other the value, appraised at the date
of payment, of the asset which has been joined.
C. civ., art. 567: The part to which the other has been joined only for the use,
ornamentation or completion of the first is deemed the main part.
C. civ., art. 568: Where, however, the asset joined is of much more value than the
main asset and where it was used without the knowledge of the owner, the latter
may request that the asset joined be separated in order to be returned to him, even
where there may result some deterioration of the asset to which it has been joined.
C. civ., art. 570: Where a craftsman or any person whatever has used material which
did not belong to him to make an asset of a new kind, whether the material can
resume its original form or not, he who was the owner of it has the right to claim
the asset made out of it by repaying the price of the labour appraised at the date of
repayment. – C. civ., art. 571: Where however the labour was so important that it
greatly exceeds the value of the material used, the service will then be deemed the
main part and the workman has the right to keep the asset wrought, by repaying the
owner the value of the material, appraised at the date of repayment.
See infra 11.4: Further general aspects.
11.3.
117
Specification and processing
Specification is the creation of new goods, where labour is involved in
creating the new asset (C. civ., art. 570 and art. 571). The rules applicable
in commixture cases also apply here.
11.4.
Further general aspects
Common ownership is regulated as follows. In all cases, the respective value
of the commingled assets is taken into account to calculate the portion
of co-ownership, which is allocated to each owner (pro rata calculation).
Common ownership can always be terminated by auction for the common
benefit of all owners (C. civ., art. 575).
In all cases, if materials were used without the knowledge of their owner
to make an asset of a different kind, the owner of the materials may claim
ownership of that asset. He also has the option of requesting restitution of
his material in the same kind, quantity, weight, measure and good quality,
or its value appraised at the date of restitution (C. civ., art. 576).
These rules differ from the rules on unjust enrichment, as they do not
take into account the enrichment of the user of the materials, but only the
fact that the owner of the materials has been deprived of an asset. Compensation is based on the value of the goods. The Code does not provide
for the specific situation in which third parties with limited rights in rem are
deprived of their asset. General rules on compensation will thus apply.737
As to those who have made use of materials belonging to others without
their knowledge, they may also be ordered to pay damages, or can even be
subject to criminal prosecution (C. civ., art. 577738). In such situations, the
good faith of the party concerned is taken into account.
Article 572 of the Civil Code states that, if a person has partly used
material that belonged to him, and partly material that did not belong to
him, to make an asset of a new kind, without either of the two materials
being entirely destroyed, but in such a way that they cannot be separated
without inconvenience, then the asset is common to the two owners: as to
one, on account of the material that belonged to him; and as to the other,
on account of both the material that belonged to him and the price of his
labour, at the date of the auction sale provided for in article 575 of the Civil
Code (C. civ., art. 572).
737
738
See infra, 19: Consequences of restitution to the owner.
C. civ., art. 577: Those who have made use of materials belonging to others, and
without their knowledge, may also be ordered to pay damages, if there is occasion,
without prejudice to criminal prosecution, if need be.
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France
In cases where an asset has been formed by the commingling of several
materials belonging to different owners, of which none can be considered to
be the main material, then if the materials can be separated, the owner of
the materials commingled without his knowledge may request that they be
separated. If the materials can no longer be separated without inconvenience,
the two owners acquire common ownership, in proportion to the quantity,
the quality and the value of the materials belonging to each of them (C. civ.,
art. 573).
If the material belonging to one of the owners was far superior to that
of the other in quantity and price, then the owner of the more expensive
material may request the asset resulting from the commingling. In such a
case, the owner of the new asset must repay the other owner the value of
his material, appraised at the date of repayment (C. civ., art. 574).
These rules are however, not mandatory and the parties may agree otherwise.
If the asset has been sold under retention of title, where the seller remains the owner, there is a specific legal constellation whenever the buyer
transforms the asset. If the asset has been mixed with other similar assets
(fongibilité), the seller can revindicate an asset of a similar kind and quality
(C. civ., art. 2369739).
In the case of incorporation, the seller can claim for restitution, if the
asset can be separated from the rest without damage (C. civ., art. 2370740).
Revindication extinguishes the right of the seller to the value of the asset revindicated. Yet if the asset has grown in value, the difference in value
must be paid to the buyer (C. civ., art. 2371741).
If the asset has been resold or lost by the buyer, the first seller has a claim
to the price of the goods resold or to the insurance claim. The mechanism
here is a subrogation réelle.742
Similar rules are applied to all third parties’ rights in rem to original assets.
739
C. civ., art. 2369: The reserved title on fungible goods may be exercised, up to the
amount of the debt remaining due, in respect to property of same nature and quality
detained by the debtor or on his behalf.
740 C. civ., art. 2370: The incorporation to another asset of an asset whose title is retained is not a bar to the rights of the creditor whenever those assets may be separated
without suffering damage.
741 C. civ., art. 2371: (1) Failing payment in full on due date, a creditor may claim the
restitution of the asset in order to get back the right to dispose thereof. (2) The value
of the returned asset shall be deducted, as payment, on the outstanding secured debt.
(3) Where the value of the returned asset exceeds the amount of the secured debt
still due, the creditor owes the debtor a sum equal to the difference.
742 Crocq P., La réserve de propriété, JCP G 2006, supplément au n° 20 du 17 mai 2006,
n° 6, § 8.
12.
119
Rules of good faith acquisition
(acquisition a non domino)
A is the owner of a movable. The movable is “transferred” by non-owner B
to the potential “good faith acquirer” C. An asset is acquired a non domino
when the current holder (buyer, donee) has contracted with a transferor
who did not own the asset at the time of the contract. No transfer of property could thus take place on the basis of the contract (nemo plus juris
principle).
Rules on bona fide purchase (i.e. acquisition a non domino) protect the
transferee who did not know or could not have known that his acquisition
was encumbered with the ownership rights of a third party. In this respect,
possession by the transferor serves a publication of the right of ownership in
respect to third parties (i.e. the transferee), who thus do not need to make
any verification as to the rights of the transferor.
12.1.
Article 2276 al. 1 of the Civil Code (former C. civ., art. 2279) resolves
the conflict between the initial owner and the current holder. This article
provides that « in the case of movables, possession is good title ».743 This article
covers all of the following cases: seller B was never the owner; seller B’s
right (to dispose) was avoided with retroactive effect; B’s contract with his
supplier (seller S) was terminated with “ex nunc” effect; double sale.744
Article 2276 al. 1 of the Civil Code has two meanings: on the one hand,
it means that possession of a movable gives a deed of ownership (instrumentum) and that possession is therefore material proof of ownership. On the
other hand, this provision means that possession entitles one to ownership
(negotium), or in other terms, that possession creates a right to ownership,
i.e. the possessor C becomes the owner even if he has not contracted with
the rightful owner. As a consequence, this second rule bars any revindication by the rightful owner (i.e. A).
Furthermore, if an asset has been acquired “a non domino”, article 2276
al. 1 of the Civil Code leads to waiving the “nemo plus juris” rule by giving
preference to the possessor acting in good faith, over the rightful owner.
The rightful owner (i.e. A) therefore cannot revindicate his asset.745
743
744
745
C. civ., art. 2276 (former C. civ., art. 2279) al. 1: In matters of movables, possession
is equivalent to title.
See supra 6: Rules for double and multiple selling.
Req., 21 nov. 1927: DP 1928, I, p. 172, rapp. Bricourt.
120
France
This rule helps to solve the conflict between successive buyers of the
same asset, or in relation to a seller who is a beneficiary of a reservation of
title clause.746 Specific rules apply to stolen or lost goods.747
Article 2276 only applies to corporeal movables748 that can be the
object of a contract.749 Immaterial goods do not normally fall within the
scope of this article. In particular, money, claims, negotiable instruments
and universas rerum750 are not within the scope of article 2276.751 Neither
are movables that have to be registered, such as boats752 or planes. As an
exception, article 2276 applies to cars.753
Article 2276 al. 1 C. civ. only applies to assets that are in private ownership, which is not the case of movables belonging to the State.754 As an
additional exception, this article does not apply to works of art.755
746
747
748
749
750
751
752
753
754
755
Cass. com., 1er oct. 1985: Bull. civ. IV, n° 224.
See infra 12.6: Sprecific requirements regarding the way the original owner lost the
movable and 12.8: Treatment of lost and stolen goods.
Cass. req., 25 nov. 1929: D.H. 1930, 3. – Cass. com., 19 janv. 1960: Bull. civ. III,
n° 30; JCP 1960, éd. G, IV, 34 (excluding immeubles par destination). – Cass. 3e civ.,
4 juil. 1968: Bull. civ. III, n° 321; Gaz. Pal. 1968, II, 298 (excluding meubles par
anticipation).
Any assets that cannot be transferred, such as public property or non transferable
goods, do not fall within the field of application of this rule.
See the case of legal combinations such as businesses (fonds de commerce): Cass.
1e civ., 2 mars 1960: Bull. civ. I, n° 141: « un fonds de commerce est une universalité
mobilière de nature incorporelle; il en résulte que les dispositions de l’article 2279 ne sont
pas applicables … » and also family heirlooms co-owned by all the heirs (souvenirs de
famille): Cass. 1e civ., 29 nov. 1994: Bull. civ. I, n° 354. l’article 2279 « ne s’applique
qu’aux meubles corporels individualisés, ce qui exclut les universalités mobilières, tels les
souvenirs de famille, dont la propriété est indivise entre le possesseur et d’autres personnes ». – See supra 1.1.3: Other property rights in movables.
Cass. civ., 4 janv. 1876, Lefèvre et autres, DP, 1877, I, 33: excluding bearer bonds and
shares.
Cass. com., 20 nov. 1951: Bull. civ. II, n° 340, cassant Aix 10 fév. 1947: D. 1948, 78,
note Ripert; J.C.P. 48, II, 3751, note Hémard.
Cass. 1e civ., 11 juil. 1960: Bull. civ. I, n° 382; D. 1960, p. 702, note Voirin. – Note
Bénabent sous Cass. 1re civ., 5 oct. 1972: J.C.P. 73, II, 17485. – Yet see Cass. 1e civ.,
30 oct. 2008: D. 2008, 2935: the acquisition of a car without its registration papers
(carte grise) only gives equivocal possession.
See for example, museum pieces: Cass. req. 17 juin 1896: D.P. 97, 1, 257, note
Guenée. – Cass. 1e civ., 2 avril 1963: Bull. civ. I, n° 203.
Droz G., La convention Unidroit sur le retour international des biens culturels volés
ou illicitement exportés (Rome, 24 juin 1995), Rev. crit. DIP 1997, p. 239.
12.2.
121
Good faith acquisition only for value?
Good faith acquisition is possible whether the acquisition was for value or
was gratuitous.756 The transferee is protected whether the price has been
paid or not, unless the asset was transferred under reservation of title. The
only asset of importance is the bona fide possession of the acquirer.757 A
person is acting in good faith, if he is convinced that he has become the
bearer of the right through a valid title deed (art. 550 C. civ.).758
12.3.
Possession or physical control by the transferor “B”
Article 2276 of the Civil Code does not require that the transferor of an
asset also be the former possessor of the asset. The rules on the protection
of good faith acquisition only apply to the possession of the transferee.
If, by chance, the transferor is also the possessor of the asset and acting
in good faith, article 2276 simply confirms the ownership of the transferor.
As a consequence, the property right of the transferee would be acquired
simply a domino. Furthermore, in this case, possession by the transferor
creates a legal appearance upon which third parties, and in particular the
transferee, can rely.759
There is nevertheless a distinction between mere “detention” (physical
control) and “possession”. Only the possessor has the intention to keep the
asset as his own. The possessor must have the intention to possess; the will
of another person cannot render anyone a possessor, except in the case of
minors, protected persons and agency.760
The “detentor”, who just holds the object, does not have such an intention. In this respect, the transferor simply holding the asset in his possession
for somebody else (possession corpore alieno – C. civ., art. 2255 – former
C. civ., art. 2228)761 is a detentor. Therefore if this detentor transfers the
ownership of the asset, the transferee acquires this ownership a non domino.
As a result, the rule provided by article 2276 of the Civil Code enables the
756
757
758
759
760
761
However, if a fraud was committed upon creditors, these creditors can use the action
paulienne (C. civ., art. 1167), without having to prove the complicity of the third
party beneficiary of the donation.
If there is a reservation of title, there is no bona fide possession, as the holder knows
that he is not the owner.
Cf. the German term “Rechtsscheinwirkung des Besitzes”.
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122
transferee acting in good faith to become the rightful owner when he enters
into possession of the asset.
12.4.
Physical control or possession by the acquirer “C”
As a general rule, possession of the asset by the acquirer / transferee C is the
fundamental requirement for the protection of a transferee who acquires
an asset a non domino. Article 2276 of the Civil Code lays down three
conditions.
First, the initial owner of the asset (A) must have surrendered his possession of his own accord.762 This means, in particular, that the initial owner
of the asset, A, lent, rented or delivered the asset to a buyer B (in performance of a void contract or of a contract with a condition subsequent)
and later wants to regain possession. Such a case appears where a sales
contract contains a reservation of title clause, yet the buyer B sells the asset
to C without having paid the price to A. The initial seller did not transfer
ownership,763 however he transferred possession. Therefore, article 2276 of
the Civil Code can apply to the transferee C.
Secondly, the current holder of the asset (i.e. transferee C) must possess
animo domino, as if he were the rightful owner.764 This means, in particular,
that the transferee’s possession must be peaceful, public, continuous and
without ambiguity.765 These conditions are required to exist at the time the
current holder enters into possession.766 In other words, if the transferee
discovers at a later time that his ownership is doubtful, this has no effect
on the quality of the possession.
Thirdly, the current holder C must be a holder acting in good faith.767
This means that the possessor must believe at the time he enters into pos762
763
764
765
766
If he lost possession against his will (theft or loss of the asset), he is protected by
article 2276 al. 2 of the Civil Code.
Ortscheidt P., Possession et clause de réserve de propriété en droit français et allemand: Rev. int. dr. comp. 1983, p. 767, n° 53 et s. – Cass. 1re civ., 16 janv. 1980:
JCP G 80, IV, 124; Bull. civ. I, n° 31; Gaz. Pal. 1980, 1, somm. 245; D.S. 1980,
inf. rap. 232; Rev. trim. dr. civ. 1980, p. 785, observ. Giverdon. – Cass. 1e civ., 13
fév. 1980: JCP G 80, IV, 167; Bull. civ. I, n° 57; D.S 1980, 491, note A. Robert;
D.S. 1980, inf. rap. 438, observ. Bénabent; Gaz. Pal., 1980, 2, somm., p. 357. – Cass.
1e civ., 4 avril 1984: JCP G 84, IV, 184.
Cass. 2e civ., 5 avril 1960: Bull. civ. II, n° 252.
Cass, 1e civ., 27 nov. 2001: D. 2002, p. 119, note Chartier, RTD civ. 2002, p. 121,
obs. Revet: “les règles de prevue de la propriété entre époux séparés de biens, édictées par
l’article 1538, excluent l’application de l’article 2279”.
Cass. 1re civ., 4 janv. 1972: Bull. civ. I, n° 4.
123
session768 that he holds his right from the rightful owner.769 In particular, C
must not know of the retention of title clause agreed upon between A and
B. Good faith is presumed (C. civ., art 2274 – former C. civ., art. 2268). On
the other hand, the transferee does not have to prove a valid title deed.770
If these three conditions are fulfilled, article 2276 of the Civil Code
leads to the following consequences.
The current holder C is considered to be the owner of the asset and
the previous owner A cannot revindicate the asset. This acquisition of
ownership is immediate and operates at the time the transferee C enters
into possession. It does not require any declaration on the part of the current holder C.
It is nevertheless necessary to add that revindication by the rightful
owner A is only excluded if the current holder C effectively possesses the
asset at the time of the revindication.771 This is not the case if the transferor
B holds the asset through a constitutum possessorium for the transferee C. On
the other hand, it is possible that the acts of possession be accomplished
by a third party D772 (other than the transferor) acting in the name of the
possessor (possession corpore alieno).773
This acquisition of ownership is an original form of acquisition. The
current owner holds his rights by operation of the law and not from the
previous owner.
767
12.5.
768
Specific requirements with respect to the
circumstances of the “transfer”
It is of no importance whether the asset was sold through “ordinary course
of business” in a “market overt” (i.e. a public market) or at a public auction,
767
768
769
770
771
772
773
Cass. req., 1er fév. 1893: D.P. 94, 1, 278. – Cass. com. 7 janv. 1953: Bull. civ. III,
n° 10. – Cass. 1re civ., 27 nov. 1973: Bull. civ. I, n° 324; JCP G 74, IV, 15.
Cass. 1e civ., 27 nov. 2001, bronze Camille Claudel: Bull. civ. I, n° 295; D. 2002,
p. 671, note Gridel.
Cass. 1re civ., 23 mars 1965: Bull. civ. I, n° 206: « En matière d’application de l’article
2279 du Code civil, la bonne foi … s’entend de la croyance pleine et entière où s’est trouvé
le possesseur au moment de son acquisition des droits de son auteur, à la propriété des biens
qu’il lui a transmis; le doute sur ce point est exclusif de la bonne foi ». – Cass. 1e civ., 14
mai 1996: Bull. civ. I, n° 199.
Cass. civ., 7 fév. 1962: Bull. civ. I, n° 91.
Cass. com., 13 fév. 1990: Bull. civ. IV, n° 45; D. 1990, somm. 388, obs Aynès.
I.e. the asset is under the physical control of a third party.
Cass. com., 11 mai 1993: Bull. civ. IV, n° 184. – Contra Cass. soc., 3 janv. 1964: Bull.
civ. IV, n° 9.
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124
unless the asset was lost or stolen from the original owner.774 There are no
specific rules with respect to consumers.
12.6.
Specific requirements regarding the way
the original owner “A” lost the movable
It is necessary that the original owner A have entrusted the asset to the
transferor B, who was supposed to hold the asset for the original owner,
without having the right to dispose of it. The loss of possession775 by the
original owner must thus be voluntary.776 If the owner of the asset has been
dispossessed against his will, he does not forfeit the right to revindicate.
As against a thief or finder of the asset, the rightful owner may revindicate the asset during a period of thirty years. As against a possessor, revindication may take place during a fixed period (délai préfix) of three years
from the date of the loss or the theft (C. civ., art 2276, al. 2). However, the
rightful owner must indemnify the possessor for the price paid, if the sale
took place at a fair, in a market or in a shop selling similar items (C. civ.,
art. 2277, al. 1 – former C. civ., art. 2280, al. 1).
French law does not distinguish on the basis of the type of defect befalling the original contract between A and B, as the defects only deploy
their effects in the law of obligations and do not spill over into the law
of property. Rules on restitution are the same whatever the causa of the
restitution (see infra 19.).777
12.7.
Good faith requirements
The acquirer C must act in good faith with respect to the transferor’s right
of ownership, yet it is sufficient that he believed bona fide that the transferor B is entitled to dispose of the asset.778 The good faith of the acquirer
is presumed (C. civ., art 2274 – former C. civ., art. 2268).
774
775
776
777
778
See infra 12.8: Treatment of lost or stolen goods.
It is however,only the loss of the corpus, not of the animus, because the transferor
holds the asset corpore alieno, cf. supra 2.1: Notion of possession.
See the case of a common error (error communis): Cass. 1e civ., 22 juill. 1986: Bull. civ.
I, n° 214. – This condition is disputed: Zenati-Castaing F., Revet Th., Les biens,
p. 663, n° 456 write that the good faith condition should not be a prerequiste to an a
non domino acquisition. They consider that the possessor is ipso facto in good faith, as
he believes that the asset was acquired a domino. Criminal courts consider that good
125
A clear distinction must however be made between the good faith of
the acquirer and the mistake made by the acquirer as to the ownership of
the transferor.779 These two issues are linked in measuring the good faith of
the acquirer and both an objective and subjective approach must be taken
towards the behaviour of the acquirer. It is fair to state that the transferee
has acquired the asset in the mistaken belief (and in good faith) that the
transferor is the owner. The mistake of the acquirer must be common (error communis) in the same sense that any other person placed in the same
circumstances would have made the same mistake.780 This is an objective
approach. On the other hand, good faith is evaluated taking into account
the intellectual capabilities and personality of the acquirer. This is a subjective approach. Good faith is presumed, but can be rebutted if either the
subjective or the objective approach leads to other conclusions.
As a result, the acquirer does not act in good faith if he has actual
knowledge of the lack of rights of the transferor. Courts consider additionally that gross or even slight negligence excludes good faith.781 This is the
case, for example, if the price paid by the acquirer is particularly low, or if
the acquirer, a professional, did not check the identity of the seller.782
Good faith is required at the time the acquirer enters into possession783
(rules of the law of property), and not at the time the contract was concluded (contract law rule). Therefore the law of property rule prevails over
any rules of the law of obligations, although in most cases the contract is
prior to possession and thus generally bad faith will be established at the
time of entry into possession.
12.8.
Treatment of lost or stolen goods
If the ownership of the current holder, who acquired a non domino, is recognized in preference to the initial owner in application of article 2276 al. 1
779
780
781
782
783
faith is automatic as soon as someone invoques the ownership presumption resulting
from possession (Cass. crim., 28 oct. 1998: Bull. crim. n° 383; D. 1993, somm. 34, obs.
Robert; RTD civ. 1994, 134, obs. Zenati). Civil courts do not require this condition
anymore (Cass. 1e civ., 8 déc. 1987: Bull. civ. I, n° 338; D. 1987, somm. 29, obs. Robert).
See the distinctions made by courts: erreur invincible, erreur légitime.
Cass. 1e civ., 23 mars 1965: Bull. civ. I, n° 206. – CA Paris, 22 mars 1983, Gaz. Pal.
1983.1, somm. 207. – CA Lyon, 8 juin 1989, D. 1990., somm. 86, obs. Robert. –
Djoudi J., « Revendication », Répertoire de droit civil, Dalloz, avril 2008, p. 19,
§ 121.
Cass. 1e civ., 6 déc. 1989: Bull. civ. I, n° 385; D. 1990, somm. 89, obs. Robert.
Cass. 1e civ., 27 nov. 2001: D. 2002, 671, note Gridel.
126
France
of the Civil Code, article 2276 al. 2 nevertheless introduces an exception,
if the asset has been stolen or lost. In these cases, the initial owner can
revindicate, even from a possessor in good faith. There is also a specific
legal regime for bearer bonds.784
As a general rule, the previous owner must have given up possession
against his will,785 either because he lost the asset or because the asset was
stolen.
An asset has been stolen if it falls under the strict definition of theft
provided by the Criminal Code, i.e. the fraudulent removal of somebody
else’s property.786 The loss of an asset can be defined as the involuntary loss
of possession by the rightful owner, i.e. a situation where this owner did not
renounce his right to property.
Nevertheless, article 2276 al. 2 cannot be extended to the breach of
trust (abus de confiance) or to situations of fraud (escroquerie), as the relevant notions of loss and theft are those defined very strictly by criminal
law.787
The proof of the loss or the theft must be made by the rightful owner.788
The rightful owner must also prove that the asset revindicated is identical
to the asset that he lost or that was stolen.789 This can be difficult if the asset
is generic goods. Nevertheless, it is not necessary for the rightful owner to
prove his ownership. It suffices that he proves he possessed the asset at the
time of the theft or the loss.790
If the asset is held by the finder or the thief, the rightful owner can act
in court against the finder or the thief without limitations.791 Revindication
as such, directed against the finder or the thief, is not subject to the statute
of limitations.792 The only limit to revindication follows from acquisitive
784
785
786
787
788
789
790
791
792
Decret n° 83-359 du 2 mai 1983: D. 1983. 232.
Cass. 1re civ., 1er juin 1977: JCP G 77, IV, 194; Bull. civ. I, n° 261; D.S. 1977, inf.
rap. 455; Rev. trim. dr. civ. 1978, 161, observ. Giverdon.
See, C. pen., art. 311-1: “la soustraction frauduleuse de la chose d’autrui.”
Cass. civ. 16 juill. 1884: D.P. 85, 1, 232; S. 86, 1, 407. – Cass. req. 2 mars 1892: D.P.
93, 1, 198. – Cass. civ. 19 juin 1928: D.H. 1928, 448.
Cass. 1e civ., 13 nov. 1962: Bull. civ. I, n° 478. – Cass. 1e civ., 21 janv. 1964: Bull.
civ. I, n° 38.
Grenoble 20 juill. 1949: D. 1952, 551, note Gervésie.
Cass. civ., 21 mai 1951: D. 1951, 507. – Cass. 2e civ., 5 avril 1960: Bull. civ. II, n° 252.
There is an apparent contradiction between article. 2224 of the Civil Code, which
bars actions in respect to movables after five years, and article 544 of the Civil Code
which gives a perpetual ownership right. Courts tend to give prevalence to article
544 of the Civil Code.
Cass. 1e civ., 2 juin 1993: Bull. civ. I, n° 197; D. 1993, somm 306, obs. Robert:
« l’action en revendication n’est pas susceptible de prescription extinctive. »
127
prescription rights of third parties, who become rightful owners after a period of three years.
It is also possible for the rightful owner to sue the finder or the thief
for civil damages (civil liability) within a period of ten years from the date
of the loss or the theft (C. civ., art 2226, former C. civ., art. 2270-1793).794
If the third party possesses the asset acting in good faith, the rightful
owner of a lost or stolen asset can revindicate the asset during a period
of three years from the day the asset was lost or stolen (C. civ., art. 2276
al. 2795). The rightful owner is thus protected if the asset was lost or stolen.796 The rightful owner must nevertheless prove his property rights in
this case and also prove the loss or the theft of the asset. The three year
period is an immutable period and cannot be suspended or extended.797
However, by way of exception, if the third party bought the asset in a
shop or at a market, where similar assets are sold, the rightful owner must
reimburse the price that was paid (C. civ., art. 2280 al. 1).798 In this case,
the third party can retain the asset until full payment.799 Therefore, in
general, the rightful owner will only revindicate the asset if the price paid
by the possessor was low. If the price paid is particularly low, the good faith
of the possessor can be doubted.800
793
794
795
796
797
798
799
800
C. civ., art 2226 al. 1: (1): Claims for tort liability are barred after ten years from the
manifestation of the injury or of its aggravation.
Cass. civ., 7 fév. 1910: DP 1910, I, p. 201, obs. Nast.
C. civ., art. 2276 (former C. civ., art. 2279) al. 2: Nevertheless, the person who has
lost or from whom an asset has been stolen, may claim it during three years, from
the day of the loss or of the theft, against the one in whose hands he finds it, subject
to the remedy of the latter against the one from whom he holds it.
Dorhout-Mees T.-J., La revendication des meubles perdus ou volés contre le possesseur de bonne foi, in Mélanges Savatier, p. 265.
Cass. crim., 30 oct. 1969: J.C.P. 70, II, 16333, note Goubeaux. – Cf. also Montpellier,
19 janv. 1949: JCP 1949, II, 4806, note Dijol. – Lyon, 15 mars 1954: D.S. 1954, 461,
note Gervesie et Chavrier. – Bordeaux, 22 janv. 1974: D.S. 1974, 542, note Rodière;
RTD. civ. 1974, 837, observ. Bredin.
C. civ., art. 2277 (former C. civ., art. 2280) al. 1: « Si le possesseur actuel de la chose
volée ou perdue l’a achetée dans une foire ou dans un marché, ou dans une vente publique,
ou d’un marchand vendant des choses pareilles, le propriétaire originaire ne peut se la faire
rendre qu’en remboursant au possesseur le prix qu’elle lui a coûté. »
See infra 19.4: Possessor’s right to retain the movable.
Cass. Crim., 3 déc. 1984, Bull. crim., n° 381; Gaz. Pal. 1985.2. somm. 224; D. 1985,
inf. rap. 186. – Cass.1e civ., 27 nov. 1973, Bull. Civ. I, n° 324. – Djoudi J., « Revendication », Répertoire de droit civil, Dalloz, avril 2008, p. 20, § 121.
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128
If the possessor returns the asset to the rightful owner, he then can act
against the person from whom he received the asset.801 Nevertheless, such
an action is doomed to failure in most cases, as the thief and the dishonest
transferor rarely give identification.
If the lost or stolen asset is a bearer bond or share, a decree of the 2nd
of May 1983802 enables the rightful owner to revindicate the bond or share
if he has advertised the loss or the theft both at the Chambre syndicale des
agents de change and at the issuing company.
12.9.
Right of the original owner A to buy back the asset
from the good faith acquirer C?
There is a right of the original owner to buy back the asset from the good
faith acquirer, but only in two limited cases: for lost and stolen goods. This
right can be exercised against the first acquirer acting in good faith and also
against all further acquirers.803 The original owner only has to compensate
the price paid by the acquirer acting in good faith.
As the original owner exercises his property rights, which are perpetual,
he is deemed to have never lost his ownership.804 Revindication thus has
a retroactive effect. The right of the original owner to buy back the asset
is, however, limited to a period of three years from the day the asset was
lost or stolen.
12.10. Rules on good faith acquisition free of encumbrances
A person B buys a movable from the owner A, or a person A who possesses
the authority to dispose of the movable, but the movable is encumbered
with a property right of a third party C (e.g. pledge), of which buyer B is not
aware. Can B, if he is acting in good faith with respect to the non-existence
of that encumbrance, acquire the movable free of encumbrances? What are
the exact requirements?
801
802
803
804
CA Paris, 7 février 1950, D. 1951, 456, note Lalou. – CA Paris, 3 janv. 1951, D.
1951, 456, note Lalou. – Djoudi J., « Revendication », Répertoire de droit civil, Dalloz,
avril 2008, p. 22, § 138.
Decret n° 83-359 du 2 mai 1983: D. 1983. 232. – Dross W., « Prescription et possession. – Prescription des choses mobilières », Jurisclasseur Civil Code Art. 2279 et
2280, 15 mars 2007, p. 22, § 63-64.
TI Lille, 12 janv. 1982: Gaz. Pal. 1982.1, somm. 182. – Djoudi J., « Revendication »,
Répertoire de droit civil, avril 2008, p. 19, § 118.
See supra 1.2.1.(c): Definitions and characteristics of the right of ownership.
129
This is the case when a person buys a movable from the owner, or from
someone who possesses the authority to dispose of the movable, but the
movable is encumbered with a property right of a third party.
The general rules of article 2276 al. 1 of the Civil Code protect the
acquirer who did not know, nor ought to have known, that his acquisition
was encumbered with the property rights of someone else. Therefore, B
acquires the movable free of encumbrances.
13.
Rules for “acquisitive” prescription of movable property
According to former article 2219 of the Civil Code, “prescription is a manner of acquiring or of discharging oneself at the end of a certain period of
time and subject to the conditions determined by law.”805
The new provisions of the Civil Code distinguish between acquisitive
prescription (C. civ., art. 2258 new version) and extinctive prescription
(C. civ., art. 2219 new version). Time thus serves the double purpose of
allowing someone to become an owner and enabling someone to discharge
himself of an obligation.806 In the first case, use, i.e. possession leads to
ownership; in the second case, non-exercise of right leads to its extinction.
The term “acquisitive prescription” circumscribes the acquisition of
ownership by being in possession / physical control of a movable for a longer
period of time (C. civ., art. 2258).
French law clearly distinguishes between acquisitive prescription rules for
movables and those for immovables. In the case of movables, the general rule
is immediate acquisition of ownership as soon as a person acquires possession
of an asset. However, in some exceptional cases, ownership may be acquired
later, either because such is the intent of the parties to a contract, or because
the asset was lost or stolen from the original owner, who can claim the asset
within a period of three years after the loss or the theft.807 As a general rule,
claims pertaining to movables lapse after five years (C. civ., art. 2224).
13.1.
Functions of acquisitive prescription
In general, acquisitive prescription rules exist in order to ensure legal certainty as well as to protect the certainty of legal transactions and public
805
806
807
Zenati F., Fournier S., Essai d’une théorie unitaire de la prescription civile, RTD
civ. 1996, 339.
Hébraud P., Observations sur la notion de temps dans le droit civil, in Mél. Kayser,
1979, t. II, 1.
See supra 12: Rules of good faith acquisition.
130
France
order. Legal certainty entails that factual appearances be given legal effects
as third parties do not always have the means to check the legal foundations of a situation. Additionally, such rules aim to protect the person who
effectively tends to the asset (use as compared to non-use).808
Prescriptive acquisition rules essentially fulfil two functions:
Acquisitive prescription rules permit the termination (purge) of legal
relationships that need to be wound up after a certain time, thus freeing
debtors from any legal chains.809 A debtor does not need to keep, for an indeterminate time, proof that he has fulfilled an obligation. This obligation
disappears ipso facto after a certain time. These rules seize upon a passive
attitude, where a person (the creditor) fails to assert a right and thus loses
it after some time.
Acquisition by prescription (usucapion) also serves to consolidate the
legal position of the user of an asset and therefore put an end to any dispute
that may arise in respect of an asset after a certain time. In general, acquisitive prescription rules protect the rightful owner, who is exempted from
having to prove his rights. On the one hand, these rules are based upon
an active attitude where the acquisition results from a person possessing
a right. On the other hand, it is because a person fails to exercise a right
(passive attitude) that a user can become owner by active use of the asset.
This concept has been criticized in the past as many discussions have
been held to determine whether prescription rules affect only the substantial right (le droit) or the right to act (l’action).810 Such discussions are linked
to the contradiction mentioned above811 between the perpetual right of
ownership,812 which is not subject to the statute of limitations, and the
general statute of limitations, by which the right to act is limited in time.
Specifically, in cases of acquisition by prescription, the right to bring
legal actions with respect to the asset is extinguished. Former article 2262
of the Civil Code proclaimed:
“All claims, in rem as well as in personam, are prescribed by thirty years, without
the person who alleges that prescription being obliged to adduce a title, or a plea
resulting from bad faith being allowed to be set up against him.”
Since 2008, article 2224 (new version) of the Civil Code provides that
actions relating to claims and movables must be brought to court within
808
809
810
811
812
See supra 2.2: Functions of possession: the discussion between Ihering and Savigny.
Zenati-Castaing F., Revet Th., Les biens, p. 677, n° 471: « l’effet acquisitif est substantiel, l’effet extinctif, processuel ».
See 12.8: Treatment of Lost or Stolen Goods.
See 1.2.1 (c): Definitions and Characteristics.
131
a five year period. It is, however, necessary to understand that the time
limit of five years stated in article 2224 applies to the extinction of claims
linked to movables, whereas property rights linked to movables are perpetual (C. civ., art. 544).
Yet, in the case of movables, revindication is barred either within a time
limit of three years for lost and stolen goods (C. civ., art. 2276 al. 2), if the
current possessor is acting in good faith, or immediately (C. civ., art. 2276,
al. 1), if the owner freely gave up possession of the asset. In either case, the
former owner can still bring a claim to court, within a time period of five
years, to re-establish his rights of ownership (C. civ., art. 2224).
13.2.
Requirements for acquisitive prescription
13.2.1. Assets that can be acquired
All assets can, in principle, be acquired by acquisitive prescription. Acquisitive prescription can apply to both corporeal and to incorporeal assets, but
also to real rights and obligations.813 This applies in particular to registered
goods and stolen goods.
However, some assets are excluded from the field of application, as they
belong to a category of non-tradable goods. Article 2260 (former C. civ.,
art. 2226) of the Civil Code declares,
“One may not prescribe the ownership of assets which may not be the subject
matter of legal transactions between private individuals”.814
In this respect, rights that cannot be transferred by contract (inaliénable),
cannot be transferred by prescription rules (impréscriptible) either. This exclusion applies in particular to res communis and to public property.
On the other hand, goods that are subject to a contractual clause limiting their transferability (inaliénabilité conventionnelle) may be acquired by
acquisitive prescription. The same goes for undivided goods (biens indivis),
as it is sufficient that one of the co-owners possesses the goods for the required time period.
Registration of ownership does not prevent acquisitive prescription,
even though in such cases, possession is equivocal and presumably in bad
faith, the “possessor” being aware that he is not the lawful owner. In the
813
814
However, the passive attitude of a person simply tolerating a behaviour is not
enough. Article 2262 (former C. civ., art. 2232) states “Acts which are merely allowed or simply tolerated may not give rise to possession or prescription.”
See supra 1.5: Transferability of movable assets.
France
132
case of registered goods, the time needed to acquire ownership is thus longer: it is not immediate as stated in article 2276 al. 1 of the Civil Code, but
is accomplished after a period of five years (C. civ., art. 2224).
13.2.2. Role of possession
Possession is an essential feature of acquisitive prescription, second only to
the passing of a specific period of time. Possession must not be vitiated and
four cumulative qualities are required to give legal effect (effet utile) to the
possession of a holder (C. civ., art. 2261, former art. 2229).815 Possession
must be peaceful,816 public,817 permanent818 and without ambiguity.819
Subsidiarily, good faith and a title deed also play a role in ascertaining
possession rights, but in the case of corporeal movable assets, there is no
requirement of a valid obligation or a valid “title” to acquire ownership.
Specifically, if the “title” is putative, in which case the acquirer just believes
that the contract, under which he bought the asset, is valid, whereas in
reality it is not, article 2276 of the Civil Code applies.820
815
816
817
818
819
C. civ., art. 2261 civ. – former art. 2229: In order to be allowed to prescribe, one must
have a continuous and uninterrupted, peaceful, public and unequivocal possession,
and in the capacity of an owner. – Zenati-Castaing F., Revet Th., Les biens, p. 659,
n° 452.
Possession must be obtained peacefully. Only the rightful owner can contest this
fact: Zenati-Castaing F., Revet Th., Les biens, p. 660, n° 452.
Civ. 1e, 4 mai 1977, Bull. civ. I, n° 205. Yet see, Cass. 1e civ., 7 juil. 1965: Bull. civ.
n° 459. – Cass. 1e civ., 8 mars 2005: JCP 2005, I, 181, n° 4 obs Périnet-Marquet.
Req. 15 avr. 1890: S. 1891, 1, 342. – Civ., 21 juin 1978: D. 1978, inf. rap. 246. – According to the Cour de cassation, there is discontinuity if “possession has not been
exercised on all occasions and at all times in which it should have been, taking into
account the nature of the asset, without any abnormal intervals of a certain length
which would be lacunae” (Civ., 11 janv. 1950: Bull. civ. I, n° 12; D. 1950, 125, note
Leonan). – Possession must be stable and permanent. This is presumed if possession
has started (C. civ. art 2264 – former C. civ.art. 2234): Zenati-Castaing F., Revet
Th., Les biens, p. 660, n° 452.
The possessor must behave as if he were entitled to hold the asset as a rightful owner
(Com., 18 oct. 1994: D. 1994, inf. rap. 249. – Cass. 1e civ., 14 mai 1996: D. 1996, inf.
rap. 147. – Cass. 1e civ., 10 déc. 1958: Bull. civ., I, n° 555. – Cass. 1e civ. 11 juin 1991:
Bull. civ. I, n° 199; RTD civ. 1992, 595, obs. Zenati). For example, if two people live
together it is difficult to determine which of the users of an asset is its rightful owner
and thus possesses the asset (Civ. 31 janv. 1900: DP 1900. 1. 281, note Poncet. –
Com., 12 juil. 1948: S. 1949. 1. 19). On the other hand, this situation can lead to a
co-possession of the asset. See Voirin P., Goubeaux G., Droit civil, p. 288, n° 645.
133
On the other hand, when an obligation disappears by acquisitive prescription to the benefit of the debtor, no possession is required, the passing
of time being sufficient. In fact, in this case, it is more the case of nonpossession (of the creditor) that is relevant.821
The possession of the acquirer must also encompass all elements of
possession, such as the corpus and the animus. The corpus element is the
factual, material side of possession: it is the act of possessing. The holder
of an asset performs the same material acts that the lawful owner of an
asset would perform.822 The animus element refers to the psychological,
immaterial side of possession: it is the intent to possess.823 The holder must
accomplish the material acts with the intention of behaving as the lawful
holder of the right.824
Indirect possession is possible. This is the case of possession corpore
alieno (C. civ., art. 2255 – former C. civ., art. 2228),825 which is a mere material act in respect of goods.826 This material act can be accomplished by a
third party, even if this intermediary does not represent the possessor. Such
is the case of a usufructuary,827 of a lessee828 or of a seller829 who has not yet
delivered the goods. This intermediary simply holds the asset without the
intention to act as an owner. He therefore recognises that someone else is
the owner of the asset and that by holding the asset he exercises the corpus
of this owner. The simple holder, on the other hand, does not act for this
owner, but simply uses his own rights to the asset.830
820
820
821
822
823
824
825
826
827
828
829
830
See supra 12.7: Good faith requirements.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 145 n° 133. – Terré F., Simler
Ph., Les biens, p. 148, n° 155. – Atias Ch., Les biens, p. 198, n° 306. – Yet more
nuancé: Malaurie Ph., Aynès L., Les biens, p. 143, n° 493.
Cass. req., 15 avr. 1890: DP 1890, 1, p. 188. – Cass. 1e civ., 20 déc. 1955: JCP G
1956, II, 9455, note A. Weill; Bull. civ. I, n° 453. – Cass. 1e civ., 18 juin 1959: JCP
G 1959, IV, p. 98. – Cass. 2e civ., 5 avr. 1960: Bull. civ. II, n° 252. – Cass. 1e civ.,
21 juin 1978: Gaz. Pal. 1978, 2, somm. p. 337. – Cass. 1e civ., 20 févr. 1996: JCP G
1996, IV, 872; Bull. civ. I, n° 96.
Cass. 3e civ., 21 mars 1984: Bull. civ. III, n° 78; D. 1984, inf. rap. p. 425, obs. Robert.
The usufructuary possesses for the full owner.
Bergel J.-L., Bruschi M., Cimamoni S., Les biens, p. 146, n° 134, p. 151, n° 139. –
Cass. 3e civ., 16 nov. 1976: Gaz. Pal. 1977, 1, somm. 23; D.S. 1977, inf. rap. 85.
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134
13.2.3. Role of good faith
For immediate acquisition of ownership, possession in “good faith” is required (C. civ., art. 2276 al. 1). Good faith in this context means: that the
transferee has acquired the asset in the mistaken belief (and thus in good
faith) that the transferor is the owner. The mistake of the acquirer must be
“common” (error communis) in the same sense that any other person placed
in the same circumstances would have made the same mistake.831 This is
an objective approach.
On the other hand, good faith is evaluated taking into account the
intellectual capabilities and personality of the acquirer. This is a subjective
approach. Good faith is presumed, but can be rebutted if either the subjective or the objective approach leads to other conclusions. As a result, the
acquirer does not act in good faith if he has actual knowledge of the lack
of rights of the transferor. Courts consider additionally that gross or even
slight negligence excludes good faith.832 This is the case, for example, if
the price paid by the acquirer is particularly low, or if the acquirer, who is
a professional, did not check the identity of the seller.833
Good faith is required at the time the acquirer enters into possession834
(rules of the law of property), and not at the time the contract was concluded (contract law rule). If the acquirer is acting in bad faith, ownership
can be acquired after five years (C. civ., art. 2224). In this case, one does
not take into account the quality of the possession, notably whether possession is public or whether the acquirer keeps the asset secretly. Only the
passing of time consolidates the acquirer’s right as a bar to any actions
(C. civ., art. 2224). On the contrary, if the acquirer is acting in good faith,
acquisition of ownership is immediate (C. civ., art. 2276, al. 1).
13.2.4. Prescription periods
To calculate the time needed to acquire a right, one should take into account the entire time period, subtracting the first day and counting the
last day. Article 2228 of the Civil Code (former C. civ., art. 2260) states
that “Prescription is counted by days and not by hours”. Article 2229 of
831
832
833
834
See the distinctions made by courts: erreur invincible, erreur légitime.
Cass. 1e civ., 23 mars 1965: Bull. civ. I, n° 206. – CA Paris, 22 mars 1983, Gaz. Pal.
1983.1, somm. 207. – CA Lyon, 8 juin 1989, D. 1990., somm. 86, obs. Robert. –
Djoudi J., « Revendication », Répertoire de droit civil, Dalloz, avril 2008, p. 19,
§ 121.
Cass. 1e civ., 6 déc. 1989: Bull. civ. I, n° 385; D. 1990, somm. 89, obs. Robert.
Cass. 1e civ., 27 nov. 2001: D. 2002, 671, note Gridel.
135
the Civil Code (former C. civ., art. 2261) adds that prescription “accrues
when the last day of the period is over.”
The period of prescription accrued to a predecessor can be taken into account (jonction des possessions – C. civ., art. 2265, former C. civ., art. 2235),
whether the transmission of the asset from the predecessor was single (à
titre particulier) or part of a global transmission (à titre universel), such as an
inheritance. However, if the transmission is global, possession by the new
holder is considered to be identical to that of the predecessor, as successors
are deemed to continue the person of the predecessor. Therefore, if the
predecessor’s possession was faulty, the successor will continue this faulty
possession.
On the other hand, the possession by a single successor is deemed to
be autonomous: possession by the successor as such will be considered
separately from the predecessor’s possession. These rules apply regardless
of whether the predecessor and / or the new possessor were acting in good
or bad faith.
Yet specifically, in the case of movables, if the new possessor is acting
in good faith, ownership is immediate (C. civ., art. 2276 al. 1); whereas if
he is acting in bad faith, such ownership is only confirmed after a period
of five years (C. civ., art. 2224). As an exception, if the asset was lost or
stolen, the lawful owner may reclaim (revindicatio) the asset, during a time
frame of three years (C. civ., art. 2276, al. 2), from a new possessor acting
in good faith.
French law provides certain rules concerning an interruption (renewal)
or extension of the prescription period. The prescription period can be
interrupted whenever possession of the asset ceases. In such a case, possession loses its continuity and thus the condition for prescribing disappears.
To acquire ownership, the possessor must then possess for a whole new
prescription period (C. civ., art. 2231, new version), with a limit of 20 years
(C. civ., art. 2232, new version).
Two types of interruption can occur. The first case is a natural interruption (interruption naturelle), where the possessor loses his possession either
voluntary or involuntary. If he is dispossessed against his will, he is entitled
to take action to recover possession, which in the case of movables takes
the form of a revindication.835 If this action succeeds, the interruption is
deemed never to have taken place. This interruption of the prescription
period has erga omnes effects.
The second case is the civil interruption of possession (interruption civile), where the possessor is taken to court836 by the presumptive owner. In
this case, if the claim is accepted by the court, possession ceases. However,
835
836
Actions possessoires, see supra 2.4: Protection of possession.
Many rules on civil interruptions of possession can be found in civil procedure.
136
France
if the claim is rejected or if the claimant withdraws the claim, there is no
interruption.837 In cases where the claim is vitiated by a procedural error,
possession is nevertheless interrupted (C. civ., art. 2241).838 If the possessor
recognises the right of the claimant, possession is also interrupted (C. civ.,
art. 2240, former article 2248). This interruption effect only applies to the
parties in court and to persons that have joint and severable liability with
the debtor, as well as to persons providing security for his debt.839
There are certain rules concerning a suspension of the prescription
period (C. civ., art. 2230, new version). French law distinguishes various
suspension periods depending on social circumstances. In particular, article
2235 (former C. civ., art. 2252 and art. 2278 lato sensu) states,
“Prescription does not run against non-emancipated minors and adults in guardianship, except for [not relevant for movables]”.
Similar rules apply to conditional or delayed (droits à terme) rights: “The
statute of limitations does not run: with regard to a claim that depends
upon a condition, until that condition occurs; with regard to a claim on a
warranty, until dispossession has taken place; with regard to a claim with a
fixed term, until that day has occurred.” (C. civ., art. 2233, former C. civ.,
art. 2257).
Specific rules also apply to the revocation of a donation in the event of
the birth of a child840 or between spouses.841 As a general rule, courts apply
the contra non valentem agere non currit praescripto principle: for those who
cannot act, prescription does non run against them. Causes should be major
events, such as wars or force majeure or even legal and contractual impediments (C. civ. art. 2234).
837
838
839
840
841
A claim lodged in court without the requisite jurisdiction will nevertheless validly
interrupt precription.
This is a different solution from the one laid down by former C. civ., art. 2247, which
did not accept the interruption of prescription.
C. civ., art. 2245, former C. civ. 2246.
C. civ., art. 966 C. civ. new version (L n° 2006-728 du 23 juin 2006): The right to
revoke a gift lapses five years after the birth or the adoption of the last child. This
right only belongs to the donor.
C. civ., art. 2236 (former C. civ., art. 2253): “It does not run or is suspended between
spouses and between partners of a registered partnership.” Comp. former C. civ.,
art. 2254: “Although there is no separation resulting from an ante-nuptial agreement or a judgment, prescription runs against a married woman, with regard to the
property of which the husband has the administration, subject to her remedy against
the husband”.
137
13.2.5. Extent of the acquisition
As soon as the period of time needed to prescribe ownership has elapsed,
the possessor becomes the owner of the asset without any obligation to
compensate the former owner,842 whether in terms of unjustified enrichment or non-contractual liability for damage (torts). The only exception
to this rule can be found in article 2276 of the Civil Code, which applies to
the cases of lost and stolen goods. In such cases, the acquirer may have to
return the asset to the initial owner, but then it is the original owner who
must compensate the acquirer.843
If third parties have limited rights in rem (e.g. pledge) in the movable,
such rights are lost. The acquirer, when all requirements of acquisitive
prescription are met, acquires full ownership of the movable (i.e. free of
these encumbrances).
If the acquirer is aware that these limitations exist, but erroneously
thinks he is owner, he then is acting in good faith and will acquire immediate full ownership (i.e. unlimited by the encumbrances he was aware of).
The situation would be different if he were acting in bad faith, full ownership being granted only after five years (C. civ., art. 2224).
13.3.
Prescription of ownership
In general, there are no acquisitive prescription rules for movables, as acquisition of ownership is immediate as soon as a person enters into possession
of the asset (C. civ., art. 2276 al. 1 new version). Nevertheless some assets
do not fall within the scope of this article844 and therefore can benefit from
acquisitive prescription rules. This is the case of lost and stolen goods (three
years) and of registered goods (five years).
There is no period of limitation (préscription) for the right of ownership
(see the German “Verjährung des Eigentums”). Under French law, ownership
rights are perpetual and do not disappear after a certain period.845 As mentioned above,846 the right of property lasts as long as the asset. Additionally,
the right of property does not disappear if the asset is not used.847
842
843
844
845
846
847
Form of original acquisition see supra 11: Types of original acquisition.
See supra 12.8: Treatment of lost and stolen goods.
See supra 12.1: Field of application.
T. Lamarche, L’imprescriptibilité et droit des biens, RTD civ. 2004, 403.
See supra 1.2.1.(c): Definitions and characteristics.
Req., 12 juil. 1905: GAJC 11e éd. 2000, n° 61.
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France
There is no such thing as temporary property in French law. It is not
possible to give up the right of property for a limited period of time.848 Nevertheless, in the case of movables, the perpetual characteristic of property
is not always maintained. If a movable asset is abandoned by its owner (res
derelicta), the asset has no master until another person takes possession of
it and becomes the owner by the effect of the mechanism of the so-called “occupation” (taking of possession), which is the creation of a new property right
for the third party from the moment he enters into possession of the asset.
Similarly, acquisitive prescription rules in the field of movables, through
the mechanism of article 2276 of the Civil Code (former C. civ., art. 2279),
give the new possessor of the asset a new right of property.849 In this respect,
the taking of possession (occupation) and acquisitive prescription rules are
two original ways to acquire property. Original ownership of movables can
thus be obtained through possession and through occupation.850
Yet in prescription cases, a rather unusual phenomenon occurs. Prescription is a legal mode of acquiring ownership. Property rights are established by way of law and no transmission takes place (acquisitive effect).
As a result, the old ownership right of the last owner survives, even if this
owner does not have any right of action against the new owner to revindicate the asset. It must, however, be stressed that only revindication rights
are extinguished. Contractual rights of the possessor or of his creditors are
not governed by the same regime.851
To limit the effects of such a survival of property rights, prescription
is deemed to have retroactive effects. Prescription thus delivers a right of
ownership to those who have no other legal title. The right given by prescription is said to have existed at the time of entry into possession of the
asset. Any acts done by the new owner / possessor during the period needed
to acquire ownership are valid.
Additionally, the old owner loses any right of action against the new
owner (extinctive effect).852 In civil procedure, the court does not have to
apply the statute of limitations ex officio (C. civ., art. 2247, former C. civ.,
art. 2223):853 only the parties are entitled to invoke this circumstance.
Such an argument can be invoked at all stages in the proceedings (fin de
848
849
850
851
852
853
Contra, Voirin P., Goubeaux G., Droit civil, p. 274, n° 611: admitting that property
can be transferred subject to the constitution of a time limit (terme).
See supra 12: Good faith acquisition.
However, if the extinctive effect applies to an obligation, the creditor has no action
against the debtor. Yet if the debtor pays the creditor, the de in rem verso rules do not
apply.
Except in some very limited cases defined by law.
139
non-recevoir), by a debtor, but also by the debtor’s creditors or any interested
persons (C. civ., art. 2253, former C. civ., art. 2225) through an action
oblique (C. civ., art. 1166).
The statute of limitations cannot be waived in advance, before the
elapse of the time period (C. civ., art. 2250, former C. civ., art. 2222).
Only an acquired prescription can be renounced by the beneficiary of the
prescription.854 Such a renunciation can be tacit, but must be unequivocal
(C. civ., art. 2251, former C. civ., art. 2221).
14.
Other forms of original acquisition
The main type of original acquisition is the so-called “occupation” of a
movable not owned by anyone. Ownership through occupation is an application of the effects of possession of the asset and it leads to original
ownership in the following cases.
In general, if a person possesses an asset that has no identified owner
(choses sans maître and res derelictae), he immediately becomes its owner
through occupation, if he so wishes. If, however, the asset is not considered
to have no identified owner, but was simply lost (trésor), the finder only
becomes its owner under certain circumstances (C. civ., article 716).855
As an exception, article 2276 of the Civil Code allows possessors of
identified movables, who are acting in good faith, to become owners immediately. This rule applies specifically to cases where it would be possible
to find the owner of the asset. It does not apply to cases where the current
possessor found the asset, as he would not be acting in good faith.
A person is acting in good faith, if he is convinced that he has become
the bearer of the right through a valid title deed (C. civ., art. 550).856 Good
faith is presumed (C. civ., art. 2274, former art. 2268857).858 If the bearer
knows that he is not the rightful owner of the asset, he is acting in bad
faith. If the bearer is acting in bad faith, the effects of possession are limited.
Furthermore, acquisitive prescription rules enable possessors (in bad
faith) to become owners after a certain period of time.859
854
855
856
857
858
859
See however the action paulienne open to creditors.
C. civ., art. 2274 (former C. civ., art. 2268): Good faith is always presumed and it
is up to the person who alleges bad faith to prove it.
Cass. civ., 11 janv. 1887: S. 1887, 1, 225.
See supra, same section. It is to be noted that the rule of C. civ., art. 2276 (former C.
civ., art. 2279) on immediate acquisition of the ownership of movables only applies
to possessors in good faith.
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France
Another original acquisition mechanism derives from the right of the
possessor to keep the fruit produced by an asset and thus acquire ownership
of this fruit.860 As a general principle recognised by legal scholarship,861 but
not formulated specifically, the possessor is entitled to the fruit of an asset.862
Many applications of this general principle can be found in statutory
law. For example, if a possessor has to surrender an immovable, he can keep
the fruit accrued until a claim (demande) for restitution is filed (C. civ.,
art. 1682, al. 2). In inheritance cases, in order to ensure equality between
heirs, heirs must surrender assets given to them by the deceased person, but
they can keep the fruit accrued before the death (C. civ., art. 856). Similar
rules apply to donees, where the gift would violate the reserve principle
protecting heirs (C. civ., art. 928) or in cases where the gift is revoked
(C. civ., art. 958 and art. 962).
860
861
862
For a general presentation, see infra 19.1: Entitlement to benefits resulting from the
movable.
However, the foundation of such a rule is disputed. See Zenati-Castaing F., Revet
Th., Les biens, p. 720, n° 509.
Part IV:
15.
Rules for the reservation of title
15.1.
Notion and conditions
French law863 has acknowledged the concept of retention of title since the
1980’s;864 however, the third party effects of such a clause were originally
limited to insolvency proceedings. The comprehensive 2006 reform of securities law865 fully recognised the reservation of title as a general contractual
863
864
865
In comparative and international law: Waelbroeck M., Le transfert de propriété
dans la vente d’objets mobiliers corporels en droit comparé, Bruylant 1961, 246
pages. – Stumpf H., Eigentumsvorbehalt und Sicherungsübertragung im Ausland – Recht der Mobiliarsicherheiten im Ausland, Verlag Recht und Wirtschaft
4. Aufl. 1980, 499 pages. – Fisch P., Eigentumserwerb, Eigentumsvorbehalt und
Sicherungsübereignung an Fahrnis im internationales Sachenrecht der Schweiz,
der Bundesrepublik Deutschland und Frankreichs, Huber Druck 1985, 196 pages. –
Kaiser E., Verlängerter Eigentumsvorbehalt und Globalzession im IPR: Rechtsvergleichende Darstellung von Zession und Zessionsstatut im deutschen, österreichischen, schweizerischen, französischen, englischen und US-amerikanischen Recht,
Centaurus-Verlagsgesellschaft Pfaffenweiler, 1986, 255 pages. – CCI (Eds.), Réserve
de propriété: Guide sur les législations de 19 pays, 1989, 65 pages. – Schulz M., Der
Eigentumsvorbehalt in europäischen Rechtsordnungen, Peter Lang Verlag 1998, 239
pages. – Al Dabbagh H., La clause de réserve de propriété dans les ventes mobilières
à crédit (étude de droit comparé français et irakien), PUAM 2004, 154 pages.
Many books have been written on this topic. The leading author is Pérochon F.,
La reserve de propriété dans la vente de meubles corporels, Actualités de droit de
l’entreprise 21, Avant propos. J.-M. Mousseron, Litec 1988, 332 pages. – See also
Garcin et Thieffry (Eds.), La clause de reserve de propriété, Actualités de droit de
l’entreprise 12, 1981, 308 pages. – Robine E., La clause de réserve de propriété depuis
la loi du 12 mai 1980-bilan de dix années de jurisprudence, Litec 1990, 171 pages. –
Menne M., Die Sicherung des Warenlieferanten durch den Eigentumsvorbehalt im
französichen Recht, Verlag Recht und Wirtschaft 1998, 152 pages.
Loi n ° 80-335 du 12 mai 1980 relative aux effets des clauses de réserve de propriété
dans les contrats de vente: JO 13 mai 1980, p. 1202. – Loi n° 85-98 du 25 janv.
1985 relative au redressement et à la liquidation judiciaires des entreprises: JO 26
janv. 1985, p. 1097. – Loi n° 94-475 du 10 juin 1994 relative à la prévention et au
142
France
mechanism,866 applicable outside insolvency proceedings,867 that secures
erga omnes the seller’s ownership rights to the goods against the buyer until
full payment of the agreed price.868
Retention of title can be defined as a contractual clause that delays the
transfer of ownership until the moment at which the price of the other
counter-obligation is entirely performed.869 These clauses can be used in
contracts where a transfer of ownership takes place, such as contracts of sale
(contrat de vente), but also leasing contracts (location vente),870 or construction contracts with supply of materials (contrat d’entreprise).871 A contract
only has this effect, however, if it contains an express clause concerning its
effect on the transfer of ownership.
Reservation of title has been recently codified in the French Civil Code
(C. civ., articles 2367 to 2372).872 It is also dealt with in the Commercial
Code in relation to insolvency proceedings (C. com., articles L 624-16 to
866
867
868
869
870
871
traitement des difficultés des entreprises, JO 11 juin 1994, p. 8440. – Loi du 1er juillet 1996 – codified at article L 621-122 of the Commercial Code. – Ordonnance
n° 2006-346 du 23 mars 2006 relative aux sûretés at C. civ., art. 2367 to 2372 – Until 1994, retention of title was considered as an exceptional contractual mechanism.
Before 2006, such clauses could be agreed upon in any type of contract: Cass. com.,
19 nov. 2003, n° 01-01.137: Juris-Data n° 2003-021073; Bull. civ. 2003, IV, n° 174;
Act. proc. coll. 2004, comm. 20, obs. C. Alleaume; JCP G 2004, I, 113, n° 1, obs. Ch.
Caron; D. 2003, p. 3049, obs. A. Lienhard; D. 2004, p. 801, note A. et F.-X. Lucas;
LPA 19 févr. 2004, p. 9, note H. Lécuyer; RTD com. 2004, p. 599, obs. A. MartinSerf. – Cass. com., 29 mai 2001, n° 98-21.126: Juris-Data n° 2001-010018; RTD
civ. 2001, p. 930, obs. P. Crocq; Contrats, conc. consom. 2001, comm. 133, obs. L.
Leveneur. – Cass. com., 5 nov. 2003, n° 00-21.357: Juris-Data n° 2003-020806; JCP
G 2003, IV, 3057; JCP E 2003, 1762; Bull. civ. 2003, IV, n° 162; D. 2003, p. 2965;
RTD com. 2004, p. 600, obs. A. Martin-Serf.
Al Dabbagh H., La clause de réserve de propriété dans les ventes mobilières à crédit
(étude de droit comparé français et irakien), PUAM 2004, p. 20, n° 14.
Crocq P., La réserve de propriété, JCP G 2006, supplément au n° 20 du 17 mai 2006,
n° 6, § 1. – Pérochon F., La reserve de propriété dans la vente de meubles corporels,
Actualités de droit de l’entreprise 21, Avant propos. J.-M. Mousseron, Litec 1988,
p. 13, n° 13.
C. civ., art. 2367: the retention of title clause is a clause that “suspends the transferring effect of a contrat until full payment of the obligation that is the counterpart”.
Cass. civ. 3e, 26 juin 1991: Bull. civ. n° 197 p. 115; JCP 1992, II, 21825.
Cass. com., 29 mai 2001, n° 98-21.126: Juris-Data n° 2001-010018; RTD civ. 2001,
p. 930, obs. P. Crocq; Contrats, conc. consom. 2001, comm. 133, obs. L. Leveneur. –
Cass. com., 5 nov. 2003, n° 00-21.357: Juris-Data n° 2003-020806; JCP G 2003, IV,
3057; JCP E 2003, 1762; Bull. civ. 2003, IV, n° 162; D. 2003, p. 2965; RTD com.
2004, p. 600, obs. A. Martin-Serf.
143
L 624-18). Its admissibility ensues from the general rules of contract and
property law.873 Although article 1583 of the Civil Code provides that the
contract automatically transfers ownership of the goods,874 this can be altered by the parties to a contract as a consequence of the general principle
of freedom of contract.875
The legal characterisation of the clause has, however, caused a lot of
controversy.876 Modern commentators consider that the transfer of ownership is a consequence of the law and not the performance of a duty.877
Ownership passes as an automatic effect of the contract.
Yet in this hypothesis, the clause creates a duty upon the seller to transfer ownership, this duty being conditional on payment of the price. Such a
clause suspends the transfer of ownership878 using the form of a condition
872
872
873
874
875
876
877
878
Ordonnance n° 2006-346 du 23 mars 2006 relative aux sûretés: art. 2367 to 2372
C. civ. – Crocq P., La réserve de propriété, JCP G 2006, supplément au n° 20 du 17
mai 2006, n° 6.
Schulz M., Der Eigentumsvorbehalt in europäischen Rechtsordnungen, Peter Lang
Verlag 1998, p. 135.
Pérochon F., La reserve de propriété dans la vente de meubles corporels, Actualités
de droit de l’entreprise 21, Avant propos. J.-M. Mousseron, Litec 1988, p. 5, n° 6 et
suiv. – Al Dabbagh H., La clause de réserve de propriété dans les ventes mobilières
à crédit (étude de droit comparé français et irakien), PUAM 2004, p. 32, n° 24.
Pérochon F., La reserve de propriété dans la vente de meubles corporels, Actualités de droit de l’entreprise 21, Avant propos. J.-M. Mousseron, Litec 1988, p. 11,
n° 11. – Often such clauses are complemented by subsequent conditions and penal
clauses. – See Storck M., Revendication des marchandises et sort d’un contrat de
vente conclu avec une clause de réserve de propriété, D. 1988, Chr. 131. – Witz
Cl., Analyse critique des règles régissant le transfert de propriété en droit français à
la lumière du droit allemand, in Festschrift für Günter Jahr, Tübingen, p. 533.(544).
Trigeaud J.-M., Réserve de propriété et transfert de propriété, JCP éd. CI, 1982, II,
13744. – Ghozi A., Nature juridique et transmissibilité de la clause de réserve de
propriété, D. 1986, Chr. p. 317. – Bloch P., L’obligation de transferer la propriété
dans la vente, RTD civ. 1988, p. 673. – Fabre-Magnan M., Le mythe de l’obligation
de donner, RTD civ. 1996, p. 85. – Schulz M., Der Eigentumsvorbehalt in europäischen Rechtsordnungen, Peter Lang Verlag 1998, p. 140. – Al Dabbagh H., La
clause de réserve de propriété dans les ventes mobilières à crédit, PUF Aix-Marseille
2004, p. 44, n° 45 et suiv. – Collart Dutilleul F., Delebecque Ph., Contrats civils
et commerciaux, Précis Dalloz 8e éd. 2007, p. 179, n°194.
Chazal P., Vicente S., Le transfert de propriété par l’effet des obligations dans le
Code civil, RTD civ. 2000, p. 477. – See supra 5.1.1: The “unititular” or “uniform”
concept of the transfer of ownership.
n° 6, § 6. – Pérochon F., La reserve de propriété dans la vente de meubles corporels,
144
France
precedent (condition suspensive)879 and not the form of a contractual delay
(term contractuel).880
The law of 12 May 1980881 allowed the seller to retain ownership of
the asset until complete payment of the price agreed upon. This was a
complete form of ownership, the transferor also being liable for the risks of
the asset, unless the contract provided otherwise.882 This situation has not
changed. However, this clause now also has third party effects, because it
is recognised as a security.
To make the reservation of title effective in relation to third parties,
the parties to a contract have to establish a written record of the clause.
This requirement is stated both in commercial and in civil law. Following
article 2368 of the Civil Code, this clause must be drafted in writing.883
Article L 624-16, al. 2 of the Commercial Code adds that the clause must
be stipulated at the time of delivery at the latest. Because of the consensual character of the reservation clause, the buyer’s acceptance has to be
pronounced no later than at this moment.
But this basic principle is often modified by tacit agreements, in which
the seller presents the clause on the delivery note or bill at the moment
of delivery of the merchandise. The same written document including the
reservation clause can cover several commercial operations, as long as this
is agreed between the parties. The objective of this requirement is the protection of third party creditors by reducing risks of fraud. But it does not
need to be executed as a private deed (acte sous seing privé). The mention
of this clause on any document would be sufficient (certificate of order or
delivery, bill, etc.).
The nature of this requirement is not clearly established in the law and
it is not clear whether it is a pre-condition of validity or only an evidential
requirement. However, in commercial law, it seems to be a pre-condition
879
880
881
882
883
Actualités de droit de l’entreprise 21, Avant propos. J.-M. Mousseron, Litec 1988,
p. 33 et suiv.
Cass. com., 20 nov. 1979, Mercarex: RTD com. 1980, 43. – Pérochon F., La reserve
de propriété dans la vente de meubles corporels, Actualités de droit de l’entreprise
21, Avant propos. J.-M. Mousseron, Litec 1988, p. 64, n° 67.
Ghestin J., Réflexions d’un civiliste sur la clause de réserve de propriété, D. 1981,
chr. p. 1.
Loi n° 80-335 du 12 mai 1980, modified in 1985, 1996 and 2006.
Cass. com., 20 nov. 1979: Bull. civ. 1979, IV, n° 300; JCP G 1981, II, 19615, 1re esp.,
note J. Ghestin; D. 1980, inf. rap. p. 571, obs. Audit. – Von Breitenstein D., La
clause de réserve de propriété et le risque d’une perte fortuite de la chose vendue:
RTD com. 1980, p. 43.
n° 194.
145
of validity as, for the purposes of insolvency proceedings, the clause must
be written in order to have erga omnes effects. In civil matters, it is also
likely to be a pre-condition of validity, as the French legislature only rarely
imposes formal requirements for evidential purposes.884
It follows from articles 1134 and 1583 of the Civil Code, that such a
clause must be agreed upon by the contracting parties and that a unilateral
retention of title is not possible.885 However, the acceptance of the clause
does not have to be explicit: it can be tacitly contracted by unconditionally
signing a document mentioning the reservation of title clause.886 Consequently, the French legal system retains a consensual, bilateral concept of
the reservation of title.887
Such a clause only recently received full recognition in the context of
insolvency. In particular, between 1980 and 1994, only movable goods,
such as merchandise (marchandises), fell under this clause. In 1994, the
more general concept of “assets” was introduced. It is however, not clear
whether intangible assets (fonds de commerce, software and securities) also
fall within the scope of the clause.888
Additionally, French law, until recently, contained specific rules on the
reservation of title only for movable goods. Immovable property was not
included by the legislature until 2006.889
884
885
886
887
888
889
In general, for evidential reasons, contracts must be written if they exceed a certain
amount, i.e. € 1500 (C. civ., art. 1341). However this rule does not apply to commercial contracts concluded between merchands (C. com, art. L 110-3).
Schulz M., Der Eigentumsvorbehalt in europäischen Rechtsordnungen, Peter Lang
Verlag 1998, p. 151.
Cabrillac M., Mouly Ch., Droit des sûretés, n° 731, p. 610. – see Cass. com.,
12 déc. 1984: Bull. civ. 1985, IV, n° 347. – Cass. com., 3 janv. 1995: Bull. civ., n° 3
p. 2; D. 1995, inf. rap. 44. – Cass. com., 11 juil. 1995: JCP 1995, IV, 2246, 2e arrêt.
After 1996, the seller could unilaterally stipulate this clause and the buyer could not
refuse it (see C. com., art. L 624-16). This faculty has been deleted from the law in
2006.
Regnaut-Moutier C., Redressement et liquidation judiciaires: à propos de
l’application des articles 115 et suivants de la loi du 25 janvier 1985 aux meubles
incorporels, D. 1996, 211 (214).
See C. civ., art. 2373 al. 2: Ownership of an immovable can also be retained as a
security. – However: Ortscheidt P., Possession et clause de reserve de propriété
en droits français et allemand, RIDC 1983, 767 (768). – Cass. com., 9 janv. 1996:
D. 1996, 184, note Derrida. – Also Zenati-Castaing F., Revet Th., Les biens,
p. 158, n° 98 describing the fact, that in a building contract, the owner of the land
agrees to waive the accession process with respect to the building materials. See also:
Cutajar C., Nature juridique, validité et opposabilité de la clause de renonciation à
l’accession dans les marchés privés de travaux, Petites Aff., 4. août 1997, n° 93, p. 19.
France
146
15.2.
Effects
Rules governing the reservation of title in French law are of two kinds, as
they deploy their effects both in general contract law and in insolvency law.890
Primarily, they are of a contractual nature, where the seller and the
buyer agree that the ownership of the asset sold will not pass to the buyer
until full payment of the price. The parties cannot completely suppress
the transfer of ownership, as this is fundamental to the sale of goods.891
However the parties can postpone the passing of ownership, as both jurisprudence and commentators consider that article 1583 of the Civil Code
is optional. This clause is used in most commercial contracts, thus leading
some authors to propose the systematic linkage of the transfer of ownership
to the payment of the price.892
There is nevertheless a controversy about the relationship between the
reservation of title and possession rules.893 As a rule, this clause essentially
has inter partes effects, as the assets are possessed by the buyer non-owner
thus creating a situation where third parties will apply the presumption
of article 2276 of the Civil Code.894 Following article 2276 of the Civil
Code,895 possession by the buyer creates an appearance of solvency (solvabilité apparente) that protects third parties,896 even though ownership has
not been transferred.
The French legislation also provides that the seller is protected in case
of bankruptcy of the buyer. In this case, the validity and the effectiveness of
the clause depend upon adherence to certain formal requirements (C. com.,
art. 624-16 al. 2). These provisions give third party effects (erga omnes) to
the clause, guaranteeing application in bankruptcy proceedings.
890
891
892
893
894
895
896
This has been confirmed by: Cass. com., 2 mars 1999: Bull. civ. IV, n° 50; Dr. affaires
1999, p. 597, obs. A. L.; RTD com. 1999, 751 et 2000, 455, obs. Martin-Serf. – Cass.
3e civ., 29 mars 2006: D. 2006, 1166, obs. Lienhard; RTD civ. 2006, 351, obs. Revet.
Al Dabbagh H., La clause de réserve de propriété dans les ventes mobilières à crédit,
PUF Aix-Marseille 2004, p. 20, n° 14.
Ghestin J., Réflexions d’un civiliste sur la clause de réserve de propriété, D. 1981,
chr. p. 1.
Jamin Ch., Propos démodés sur les effets d’une generalisation éventuelle de la réserve de propriété dans les ventes des.biens mobiliers corporels, Cah. dr. de l’entrep.,
1955, p. 29.
Ortscheidt P., Possession et clause de reserve de propriété en droits français et allemand, RIDC 1983, 767.
See supra 12: Rules of good faith acquisition.
Cass. civ. 28 mars 1934, D. 1934, I, 151.
Pérochon F., La reserve de propriété dans la vente de meubles corporels, Actualités
de droit de l’entreprise 21, Avant propos. J.-M. Mousseron, Litec 1988, p. 16, n° 15.
147
French Law grants the seller both the retention of ownership and a
security right. As a consequence, the seller can recover the asset or demand
preferential payment from the price of resale.
As an ownership right, the retention of property clause is first and foremost a clause that restricts the transfer of ownership. The property right
stays with the seller. As a result, the seller bears the risk of damage and loss
(res domino perit principle).897 However, the parties can customize their
relationship: thus they can agree on a clause providing the transfer of risks
to the buyer at the moment of the delivery of the good sold.
Nevertheless, as a security right, with a stipulation of reservation of title,
the destiny of the property is bound to the destiny of the debt. The clause
has an accessory character.898 At the moment of full payment of the debt,
property is transferred automatically. This limits the prerogatives of the seller.
As a consequence of the accessory character, sellers can no longer exercise a
claim for restitution after the extinction of the debt.899 Neither can the seller
transfer the guarantee independently in order to secure another debt. The
clause can only serve as a guarantee of payment of the price of the asset transferred and not of another claim.900 However, despite the accessory character
of the security, the guarantee is transferred onto the price obtained from any
resale (C. civ., art. 2372) or onto the proceeds of insurance.901
If only a part of the debt is paid by the transferee, the reservation of
property clause continues to benefit the transferor. If the property is transferred to several persons, the reservation of property and the claims to restitution are not severable (indivisible)902 and the rights can only be claimed
by all joint owners acting together. As a consequence, it seems that the
French legal system retains ownership in the strict sense.
897
898
899
900
901
902
Von Breitenstein D., La clause de réserve de propriété et le risque d’une perte
fortuite de la chose vendue, RTD com. 1980, 43.
Cass. com., 23 janv. 2001: D. 2001, a.j. 702, obs. Lienhard; JCP G 2001, p. 391.
Yet see, Cass. com., 9 janv. 1996, n° 93-12.667: Juris-Data n° 1996-000364; JCP G
1996, I, 3935, n° 19, obs. M. Cabrillac; JCP E 1996, I, 554; RTD civ. 1996, p. 436,
obs. P. Crocq; D. 1996, p. 184, F. Derrida; RTD com. 1997, p. 331, obs. A. MartinSerf; Dr. et patrimoine mai 1996, p. 85, obs. M.-H. Monsèrié; JCP G 1996, I, 3942,
n° 4, obs. Ph. Simler et Ph. Delebecque. – Cass. com., 11 mars 1997, n° 94-20.069;
Juris-Data n° 1997-001069; Bull. civ. 1997, IV, n° 70; JCP G 1997, IV, 971; D. affaires 1997, p. 510; RD bancaire et bourse 1997, p. 132, obs. M.-J. Campana et J.-M.
Calendini.
n° 6, § 6.
C. civ., art. 2372 and C. com., art. L 624-18.
Cabrillac M., Mouly Ch., Droit des sûretés, 7e éd. Litec 2004, n° 734, p. 614. –
Cass. com., 15 mars. 1988: Gaz. Pal. 1988, I, 244.
France
148
If the buyer does not pay the price as agreed, the seller can realise the
security in many ways, depending on where the asset is. In particular, if the
asset is still in the possession of the buyer, the seller can simply revindicate
it. The seller must first ask the buyer in a non-contentious way to surrender
the asset (demande aimable en revendication); only then can he revindicate
the goods.903
If the asset has been incorporated into other assets or has been resold,
the situation is somewhat different. If the asset has been mixed with other
similar assets (fongibilité), the seller can revindicate an asset of a similar
kind and quality (C. civ., art. 2369904). In the case of incorporation, the
seller can exercise his claim to restitution, if the asset can be separated from
the other object without damage (C. civ., art. 2370905).
Revindication extinguishes the right of the seller to the value of the
revindicated asset. If the asset has grown in value, the difference in value
must be paid to the buyer (C. civ., art. 2371906).
If the asset has been resold or lost by the buyer, the first seller has a
claim to the price obtained for the resold asset or to the proceeds of the
insurance. The mechanism here is a subrogation réelle907 and is a form of
extended reservation of title.
16.
Abandonment: further ways of losing ownership
The French legal system acknowledges abandonment (l’abandon) as a unilateral legal act (acte juridique unilatéral),908 by which an owner can relinquish ownership. The owner loses his property right by a simple voluntary
903
904
905
906
907
908
Cass. com., 11 juil. 2006: D. 2006, 2100, obs. Liénhard; Act. Proc. Coll. 2006,
n° 177, obs. Vallansan; RTD civ. 2006, 800, obs. Crocq.
C. civ., art. 2369: The reserved title to fungible goods may be exercised, up to the
amount of the debt remaining due, with respect to property of same nature and
quality detained by the debtor or on his behalf.
C. civ., art. 2370: The incorporation into another item of an asset whose title is
retained, is not a bar to the rights of the creditor whenever the asset may be separated
without suffering damage.
C. civ., art. 2371: (1) Failing payment in full on due date, a creditor may claim the
restitution of the asset in order to get back the right to dispose thereof. (2) The value
of the returned asset shall be deducted, as payment, on the outstanding secured debt.
(3) Where the value of the returned asset exceeds the amount of the secured debt
still due, the creditor owes the debtor a sum equal to the difference.
n° 6, § 8.
16. Abandonment: further ways of losing ownership
149
renunciation.909 This right to abandon the asset is a consequence of the
right to dispose of the asset.910 It is an extreme act, as the owner renounces
his ownership without any creation of another ownership right to the asset:
res derelictae are goods that have no owner.
An essential requirement of abandonment is the intention to abandon
(l’intention de renoncer).911 With respect to the proof of this intention, the
French system distinguishes between movables and immovables.912
For movables it will be sufficient to prove that the initial owner had
thrown away the object concerned. The corporeal movable object turns
into a “res derelicta”, which can be acquired by a third person taking possession of it.913 As to incorporeal assets, such as intellectual property rights,
they disappear if they are abandoned, as their very existence is linked to
a person.914
For immovables, there is no exception to the perpetual characteristic
of the right of property, except perhaps as regards surface ownership (droit
de superficie),915 which can be transmitted for a limited period of time.
Ownership rights do not disappear if they are not used. There is no such
thing as a resolutory statute of limitations, even if in the same period of
time a third person can gain ownership through a mechanism of acquisitive
prescription.916 Registration of immovable property rights hinders simple
abandonment of an immovable.
Several legal provisions aim to protect the environment, whenever a
movable is abandoned. For example, in the matter of disposal of motor
vehicles, public authorities can oblige the initial owner to take the vehicle back in order to sell it or to dispose of it (C. de la route, art. L. 325-1
seq.). Similar provisions can be found in respect of waste disposal (Code
909
910
911
912
913
914
915
916
See supra 1.2.2: Interests linked to the right of ownership.
Cass. civ., 10 nov. 1988: JCP. 1988, IV, n° 23.
Terré F., Simler Ph., Les biens, p. 388, n° 496, p. ex.: l’abandon de la mitoyenneté:
C. Civ., art. 656 and 667. – For immovables the simple abandonment of possession
doesn’t suffice to prove the abandonment of the property right. For immovables an
official statement about the abandonment is required. The Civil Code prescribes
methods of abandonment of imovables in certain specific cases, but not in general.
Art. 713 of the Civil Code provides that: “the property which has no master belongs
to the commune on whose territory it is situated. However, ownership is transferred
by operation of law to the Public Domain where the commune waives the exercise
of its rights”.
Terré F., Simler Ph., Les biens,, p. 388, n° 496.
Malaurie Ph., Aynès L., Les biens, Defrénois 2e éd. 2005, p. 279, n° 900-905.
See supra, 13: Acquisitive prescription.
France
150
de l’environnement, art. L. 541-1 sqq.), radioactive waste disposal (Code de
l’environnement, art. L. 542-1 sqq.), and abandonment of ships at sea and
ocean dumping (Loi relative aux navires et engins flottants abandonnés en mer).
These special provisions do not eliminate the right to abandon an asset, so
that third persons can appropriate the object by taking possession of it. But
they provide a liability ex post upon the initial owner.
17.
Transfer rules for “co-ownership”
17.1.
Forms of co-ownership
The French law system acknowledges different forms of joint ownership.
However, the fathers of the Civil Code adopted a concept of property that
was rather individual, so that common ownership was considered as unintentional and temporary. For that reason, only few provisions about co-ownership were established, in which the main principle of an always possible
partition dominated.917 Over the years, this concept of mainly individual
property changed as realisation grew that common resources or goods could
offer many advantages to the economy and society. So partly the courts,
partly legislation tried to adapt the existent provisions to the new social and
economic needs. Until 2006,918 no general and all-embracing reform was
adopted, but modifications were made by different special acts, modifying
or completing the original provisions in the Civil or Commercial Codes or
establishing a new legal co-ownership by a specific act. In absence of a classification of co-ownership in the legal provisions, the French commentators
tried to classify, but without finding a common system.
Different types of co-ownership are recognised in French law. The recent 2006 legislation distinguishes simple undivided ownership (indivision
ordinaire), co-ownership on immovables (copropriété des immeubles bâtis),919
but also legal and contractual undivided ownership. Sometimes authors
propose sub-classifications to the simple undivided ownership taking into
account the objectives of the co-ownership.920
917
918
919
920
Malaurie Ph., Aynès L., Les biens, Defrénois 2e éd. 2005, p. 199, n° 653.
Loi n° 2006-728 du 23 juin 2006.
Malaurie Ph., Aynès L., Les biens, Defrénois 2e éd. 2005, p. 200, n° 655. – Ghestin
J., Traité de droit civil / Les biens; éd. L.G.D.J 2000, n° 467 seq.
See Cornu G. G., Droit civil – Les biens, Montchrestien 13e éd. 2007, p. 136, n° 57:
The author proposes to distinguish between simple undivided ownership (indivision
ordinaire), perpetual co-ownership (copropriété perpétuelle) and co-ownership on immovables (copropriété des immeubles bâtis).
151
17.1.1. Simple undivided ownership
The most important form of co-ownership is the simple undivided ownership (indivision ordinaire). In this form, identical rights in a same object arise
for the different owners, who exercise all the property rights related to their
collective object.921 Every joint owner exercises his property right to the
entire object and not only to part of it. But he has to respect the respective
property rights of the other joint owners. There is no material dissociation
of the object.922 The individual right to the collective object is calculated
in abstract portions or quotas.923
Undivided ownership occurs very frequently. It can be established
by law, e.g. successoral undivided ownership, or by contract. Undivided
ownership can tend to partition (traditional objective of this kind of coownership, especially after succession or divorce) or it can be contracted for
a certain term. In articles 815 seq., the Civil Code contains various provisions on undivided ownership. Following the structure of the Civil Code,
they belong to the provisions of the successions. Nevertheless, they apply
to all kinds of undivided ownership.924 As a basic principle, article 815 of
the Civil Code provides that every joint owner has the right to demand a
partition of the co-ownership at every moment:
“No one may be compelled to remain in undivided ownership and a partition
may always be induced, unless it was delayed by judgment or agreement.”
The right to demand partition can be delayed or limited by contract or
judicial decision. Specifically, the delay by judgment aims to protect the
value of the object.
The Civil Code has additionally several specific provisions for co-ownerships that are established by agreement (C. civ., art. 1873-1 to 1873-18),
because this kind of undivided ownership is intended to persist during a
determinate period.
921
922
923
924
Cornu G., Droit civil, Introduction / Les personnes / Les biens, Montchréstien 12e éd.
2005, n° 1221.
Cornu G., Droit civil, Introduction / Les personnes / Les biens, Montchréstien
12e éd. 2005, n° 1225.
Terré F., Simler Ph., Les biens, Dalloz 7e éd. 2006, p. 456, n° 570.
2005, n° 1243.
152
France
Concerning the organisation of the simple undivided ownership, the
Civil Code provides several basic rules, but a lot of them can be waived and
replaced by a contractual agreement.925
As a general rule, undivided ownership only concerns the initial and
defined object or a collection of objects without extension to other assets
owned by the several joint owners. Exceptions are made for objects of the
undivided whole that are replaced by new objects. In this case, the new
object enters the whole of the undivided property and becomes part of the
co-ownership by subrogation (“subrogation réelle”).926 Fruit and revenues of
the undivided property also become part of the undivided property mass.
Art. 815-10 of the Civil Code thus provides that:
“Fruit and revenues of undivided property accrue to the undivided ownership,
in default of interim partition or of any other agreement establishing divided
enjoyment.”
Creditors of each of the joint owners would welcome the opportunity to
seize the undivided property. This is, of course, problematic with respect to
the other joint owners. Three kinds of creditors can, however, levy execution on the undivided property and be paid by deduction from the assets
before partition: creditors who might have levied execution before there
was undivided ownership (C. civ., art. 815-17), creditors who can claim
remuneration for having taken care of the conservation and management
of the undivided property927 and creditors who have claims against all the
joint owners.928 Personal creditors of an undivided owner cannot attach or
seize the undivided object (C. civ., art. 815-17). They only can instigate
partition in the name of their debtor or intervene in a partition instigated
by him (C. civ., art. 815-17).
Concerning the administration of undivided ownership, the relationship between the undivided co-owners is dominated by the principle of
unanimity. Article 815-3 of the Civil Code provides that:
“Acts of administration and disposition relating to undivided property require
the consent of all the undivided co-owners. They may give to one or several
of them general authority for administration. A special authority is required
for any act which does not belong to a normal management of the undivided
property, as well as for the conclusion and renewal of leases.
925
926
927
928
2005, n° 1241.
Cass. 1re civ., 20 fev. 2001: Bull. civ. I, n° 41.
Cass. 1re civ., 6 nov. 2001: Bull. civ. I, n° 271.
153
Where one undivided owner takes up the management of the undivided
property, with the knowledge of the others and nevertheless without opposition on their part, he is deemed to have received an implied authority, covering
acts of administration, but not acts of disposition or conclusion or renewal of
contracts.”
This principle has a very large scope and covers all kinds of acts of administration or dispositions such as, sale, donation, and creation of reality
charges, leasing or rent.
Exceptions to the principle of unanimity are made in some kinds of
situations: Article 815-4 Civil Code thus provides:
“Where one of the undivided owners is unable to express his intention, another
may be judicially entitled to represent him, in a general manner or for some
particular transactions, the terms and extent of that representation being fixed
by the judge.
Failing statutory power, contractual authority or judicial entitlement, the
acts done by an undivided owner on behalf of another are effective with regard
to the latter under the rules of management of another’s business.”
Article 815-of the Civil Code adds:
“(1) An undivided owner may be judicially authorized to do alone an act for
which the consent of an undivided co-owner would be required, where the
refusal of the latter imperils the common interest. (…)
(3) An act made within the terms fixed by the judicial authorization is effective
against the undivided owner whose consent was wanting.”
As a result, according to article 815-6 of the Civil Code, “The president
of the tribunal de grande instance may prescribe or authorize all urgent
measures which the common interest requires.”
17.1.2. Special forms of co-ownership
In the field of movables, there are very few kinds of special forms of coownership. In this respect, co-ownership of intellectual property rights following a collaboration on a joint creation (C. prop. intell., art. L. 113-3)
would fall within this characterisation.
France
154
17.2.
Rules on transfer
As a consequence of the principle of unanimity, a joint owner cannot
transfer the whole undivided property on its own. Such an act of transfer
without the consent of the rest of the co-owners is forbidden and would
not be opposable (inopposable) to the other undivided owners as long as
the partition has not yet taken place. But the act can become entirely or
partly retroactively valid, if the objects, intended to be transferred by the
void act, fall into the share of the contracting co-owner after partition.929
With respect to their own part of undivided property, the different coowners have the right to dispose of it. This follows from art. 815-14 of the
Civil Code, that provides that undivided owners who intend “to transfer, for
value, to a person outside the undivided ownership, all or part of his rights in the
undivided property or in one or several articles of that property” have to respect
certain formalities, if the property part shall be acquired by third persons.
In this case, articles 815-14 to 815-16 of the Civil Code organise a right
of pre-emption for the other co-owners. The possibility of exercising the
right of pre-emption is mainly a protection for the rest of the co-owners
to avoid that a completely unknown person enters the co-ownership.930 In
consequence, the respect of the provisions about the pre-emption rights is
protected by article 815-16 of the Civil Code, which provides that, “Every
transfer or auction made in defiance of Articles 815-14 and 815-15 is void.”
However, an action for annulment is time-barred after five years and
it may be brought only by those on whom notices were to be served (or by
their heirs), i.e. the joint owners.
The right of pre-emption is valid for all kinds of simple undivided coownerships, even though it belongs to the provisions on successions.931 The
right of pre-emption applies not only to the all undivided owners but also
to the beneficiaries of undivided property in usufruct, as far as this would be
consistent with the general rules on usufruct (C. civ., art. 815-18).
17.3.
Separation and termination of co-ownership
According to article 815 al. 1 of the Civil Code,
“[n]o one may be compelled to remain in undivided ownership and a partition
may always be induced, unless it was delayed by judgment or agreement.”
929
930
931
Cass. 1re civ., 23 avr. 1985: Bull.civ. I, n° 124.
155
The possibility to induce the partition is an absolute right of every coowner, which is enforceable against everyone.932 The right is strictly discretionary933 and does not fall under the statute of limitations.934 Because
of the absolute character of the right to induce partition the exclusion of
this capacity whilst establishing an undivided ownership is void. French
jurisprudence decided that in the matter of successions a testator cannot
effectively impose an unlimited co-ownership on the co-heirs.935 Even more
strictly, the jurisprudence refused to acknowledge the testamentary clause
that intended to exclude a partition during five years.936
The partition can be induced by simple declaration. It is a declaratory
act937 that effects the direct transfer of property from the initial owner to
the different co-owner, i.e. the transfer of property works in a retroactive
manner. This principle (principe de l’effet déclaratoire du partage) is laid down
in art. 883 of the Civil Code:
“Each co-heir shall be deemed to have succeeded alone and immediately to all
the effects comprised in his share, or falling to him through auction, and never
to have had ownership of the other effects of the succession.
It shall be the same as to the property that came to him through any other
act leading to the cessation of undivided ownership. One shall not distinguish
depending on whether the act causes undivided ownership to cease in whole or
in part, with regard only to some items of property or to some heirs.”
Although article 883 of the Civil Code belongs to the provisions on successions, it applies to all kinds of simple undivided ownerships.938 The retroactivity of the property acquisition has an important effect on the contracts
passed during the time in which the co-ownership took place. If an undivided owner has performed some transactions on the undivided property
without the consent of his co-owners and the property part, that is subject
of these transactions falls into the share of this undivided owner after the
932
933
934
935
936
937
938
Ghestin J., Traité de droit civil-Les biens, LGDJ. 2000, n° 483.
Cass. civ., 26 déc. 1966: DP 1967.1.27. – CA Nancy, 16 nov. 1961, JCP 1964, II,
13477.
Exceptions are made for acquisitive prescription: Ghestin J., Traité de droit civil-Les
biens, éd. L.G.D.J. 2000, n° 483. – Cass. civ. 3e, 27 nov. 1985: Bull. civ. III, n° 158. –
Cass. civ. 3e, 15 juin 1988: Rev. dr. imm. 1988, 489.
Cass. civ., 29 juin 1933: DH 1933, 477.
Cass. 1re civ., 5 janv. 1977: Bull. civ. I, n° 15. – CA Paris, 12 janv. 1987: D. 1987,
IR, 37.
Ghestin J., Traité de droit civil-Les biens, LGDJ 2000, n° 485.
France
156
partition, these transactions are retroactively validated.939 Nevertheless,
they are validated only partially, if a part only of the transaction’s object
falls into the share of the performing owner.
On the other hand, if the objects of these transactions do not fall into
the share of the performing undivided owner, these acts are retroactively
void.940
The strict principle of retroactivity provided by article 883 of the Civil
Code is, however, attenuated in the matter of transactions that are lawfully
performed either under the agency of the undivided owners, or under a
judicial authorization. These lawfully performed acts “maintain their effects
whatever the allotment of the property which was the subject thereof may be at
the time of the partition” (C. civ., art. 883).
Partition can be induced by each co-owner, but also by their creditors
under application of the general principle of article 1167 of the Civil Code
(action oblique). In such a case, the other co-owners can prevent partition
by buying the share of the indebted co-owner and thus paying the creditors
of this co-owner.
18.
Further rules applying to unspecified goods
18.1.
Transfer of shares in an identified bulk
Shares can be transferred in an identified bulk, but at all times the full list
of the shares must be available. General rules identified above relating to
the identification of the asset transferred apply to this case.941
18.2.
Floating charge
Floating charges as such do not exist in French law.
939
940
941
Terré F., Simler Ph., Les biens, Dalloz 7e éd. 2006, p. 470, n° 586; in case of sale:
Cass. 1re civ., 9 mai 1979: JCP G 1979, II, 19257. – Cass. 1re civ., 16 juin 1987: Bull.
civ. I, n° 197. – in case of mortgage: Cass. civ. 3e,: 21 oct. 1980, Bull. civ. III, n° 160.
Cass. 1re civ., 2 juin 1987, Bull. civ. I, n° 181. – Cass. 1re civ., 16 mai 2000, Bull. civ. I,
n° 148.
See supra 5.2.1: Specific goods – generic goods.
19.
157
Consequences of restitution of the movable
to the owner
This section deals with consequential questions that may arise when a
movable has to be restored to the owner.942 In the following, the parties
are called “the possessor” (i.e. the person who has to surrender the object)
and “the owner” (i.e. the person who can claim restitution of the object).
In case of void or avoided contracts, nullity applies retroactively. Consequently, the original situation has to be reconstituted.943 If the property has
already been transferred, as it is frequently the case (transfer solo consensu),
the transfer occurred without a legal cause944 and therefore the asset has to
be returned to the initial owner.945 As soon as the nullity is declared, the
party who received the asset has a duty of restitution (obligation de restitution).
The legal nature of this duty of restitution is controversial. As the
contract is retroactively avoided, it is considered having never existed.
Consequently, some courts analyse the duty of restitution as a kind of the
quasi-contractual de in rem verso claim or “répetition de l’indu”.946 However a
dominant majority of courts consider the duty of restitution as a contractual
claim,947 based on the avoided contract.
The duty of restitution of objects that are transferred for temporary
use depends on whether the contract is gratuitous or non-gratuitous. As a
general rule, the duty of restitution is provided by statute.
In cases of non-gratuitous leasing contracts (contrat de bail), article 1730
of the Civil Code provides that the possessor,
“must return the asset such as he received it (…) except for what has perished
or has been deteriorated through decay or force majeure”.
This principle has to be applied “where an inventory of fixtures has been
made” between the parties. If no inventory has been made, the possessor is,
942
943
944
945
946
947
See questions on protection of ownership supra under 1.4: The protection of property
rights.
Terré F., Simler Ph., Lequette Y., Les obligations, Dalloz 9e éd. 2005, p. 424,
n° 423.
Bénabent A., Les obligations, Montchréstien, 10e éd. 2005, n° 222.
See for example, Cass. civ., 6 déc. 1967: Bull. civ., I, n° 358, p. 269. – Cass. com.,
16 déc. 1975: Bull. civ., IV, n° 308, p. 256.
Cass. 1re civ., 14 avril 1991, Cont., Conc., Consom. 1991, n° 137. – Cass. com.,
4 janv. 2000, Cont., Conc., Consom. 2000, n° 79.
Cass. 1re civ., 24 sept. 2002: D. 2003, 369, note Aubert.
158
France
“presumed to have received the premises in a good state of repairs incumbent
upon lessees, and must return them in the same state, except for proof to the
contrary” (C. civ., art. 1731).
The duty to return the object in its original state includes the duty to execute routine maintenance repairs (C. civ., art. 1754), not to modify the
substance of the object948 and to compensate for deteriorations and losses
that are caused by the possessor, his household or his subtenant (C. civ.,
art. 1735), unless such deteriorations or losses are caused by decay or force
majeure (C. civ., art. 1730).
Concerning the gratuitous contract of loan, the French law recognizes
two forms: loan for use or accommodation (prêt à usage or commodat) and
loan for consumption (prêt de consommation), at article 1874 of the Civil
Code.949
In case of a loan for use or accommodation, the possessor has only a
right to use the loaned object, so that he has to return it in original state
(C. civ., art. 1874). The lender remains the owner of the asset loaned
(C. civ., art. 1877). For this kind of loan, article 1875 of the Civil Code
provides for a duty of restitution:
“A loan for use or “commodate” is a contract by which one of the parties delivers to the other an asset to be used, on condition that the borrower returns it
after making use of it”.
The object has to be returned in its original state and, if necessary, with the
fruit of the asset that have accrued in the meantime.950 The loaned object
has to be returned at the moment in which the contract expires.951 The
owner does not have to declare the possessor in default.952
In cases of open-ended loans, the general contract rules are applicable,
i.e. the contract can be terminated.953 In doing so, there must be compliance with article 1888 of the Civil Code. This article provides that,
948
949
950
951
952
953
Special legislation for residential tenancy (bail d’habitation) in art. 7-f loi du 6 juillet
1989.
C. civ., art. 1874: “There are two kinds of loans: That of assets which can be used without
being destroyed, And that of assets which are consumed by the use which is made of them.
The first kind is called loan for use or commodate; The second is called loan for consumption, or simply loan”.
Antonmattei P-H., Raynard J., Contrats spéciaux, Litec, 3e éd. 2002, n° 326.
Cass. com., 7 déc. 1993: Bull. civ. IV, n° 461.
Cass. com., 7 déc. 1993: Bull. civ. IV, n° 461.
Antonmattei P-H., Raynard J., Contrats spéciaux, Litec, 3e éd. 2002, n° 326.
159
“[t]he lender may take back the asset loaned only after the term agreed upon
or, failing an agreement, after it has served the use for which it was borrowed”.
Because of this provision, there have been problems in all situations where
the possessor had a continued need of the loaned object (e.g. residential
tenancy). For that reason the Cour de cassation decided that the provisions
of articles 1888 and 1889 of the Civil Code had to be interpreted as a
permission to the judge to determine the contractual term of open-ended
loans.954
The location where the restitution is to take place is not settled by the
Civil Code. By analogy with article 1903 of the Civil Code (loan of consumption), part of legal scholarship proposes to return the asset to the place
of the deliverance of the loaned asset, unless there were other contractual
agreements.955
In the case of a loan for consumption, the possessor can consume the
loaned object, so that he has to return an equivalent in the same kind and
quality (C. civ., art. 1892). Article 1893 of the Civil Code provides that,
“through such a loan, the borrower becomes the owner of the asset loaned; and
the loss falls upon him, in whatever manner it occurs”.
French civil law offers owners who have lost objects, or from whom they
have been stolen, a claim of restitution (action en revendication). Although
article 2276 of the Civil Code recognizes as a general rule, that in matters
of movables, possession is equivalent to a title, it also provides that,
“Nevertheless, the person who has lost or from whom an asset has been stolen,
may claim it during three years, from the day of the loss or of the theft, against
the one in whose hands he finds it, subject to the remedy of the latter against
the one from whom he holds it”.
In order to succeed with his claim, the owner has to prove that the deprivation of his asset was caused by loss or theft. Otherwise the claim would
not be admissible.956 All kinds of evidence are permitted. The owner has to
respect the period for filing the action, i.e. three years, from the day of the
loss or of the theft. The failure to file the complaint timely renders the ac954
955
956
Cass. 1re civ., 12 nov. 1998: Contrats, conc., consom 1999, comm.22, note Leveneur.
Bénabent A., Les contrats spéciaux civils et commerciaux, Montchréstien: 5e éd.
2001, n° 429 – Huet J., Traité de droit civil – Les principaux contrats, LGDJ, 2e éd.
2001, p. 957, n° 22147.
Cornu G., Droit civil Introduction-Les personnes-Les biens, Montchréstien, 12e éd.
2004, n° 1643.
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France
tion inadmissible.957 The jurisprudence and doctrine agree that this period
is not a period of prescription but a fixed period (délai prefix).958 As a result,
this period can not be interrupted or suspended by the legal provisions
about the interruption or suspending of the statute of limitations.
This short period does not apply in case of bad faith.959 If the possessor
(thief, finder, and purchaser) is not bona fide, the common prescription of
five years runs.960 Furthermore, the owner has to prove his right of property.
All kinds of evidence are permitted, but the owner has to prove his ownership right of the specific object.
The claim of fungible goods is only exceptionally possible. So an owner
can claim the restitution of an amount of money, if the thief (e.g.) still possesses it. But the action is excluded, if this amount was commingled with
other money.961
In general the action of restitution succeeds if these conditions are fulfilled. Nevertheless restitution can be bound to an additional condition.
Article 2277 of the Civil Code (former C. civ., art. 2280) provides that,
“where the present possessor of an asset lost or stolen has bought it at a fair or
market, or at a public sale, or from a merchant selling similar assets, the original
owner may have it returned to him only by reimbursing the possessor for the
price which it has cost him.
A lessor who claims, under Article 2332, the movables displaced without
his consent and that have been bought in the same conditions, must likewise
reimburse the buyer for the price which they have cost him.”
This provision aims to protect certain kinds of commercial transactions. As
a consequence, the owner has to buy his asset back. But courts construe this
additional condition very restrictively. The quality of being a “merchant” is
only recognized for professionals who accomplish this kind of transaction
regularly. The only occasional performance of transactions does not fulfil
the legal requirement.962 If for other reasons the owner retrieves the posses-
957
958
959
960
961
962
Cornu G., Droit civil Introduction-Les personnes-Les biens, Montchréstien: 12e éd.
2004, n° 1644.
Cass. crim., 30 oct. 1969: Gaz. Pal. 1969. II.380. – CA Bordeaux, 22 janv. 1974: D.
1974.542, note Rodière. – Cass. crim., 4 mars 1986: Gaz.Pal. 1986. II. somm. 433.
Cornu G., Droit civil Introduction-Les personnes-Les biens, Montchréstien, 12e éd.
2004, n° 1644.
I.e., former period of thirty years: CA Paris: 22 mars 1983: Gaz. Pal. 1983. I. somm.
207 – Cass. 1e civ., 7 fév. 1989: Bull. civ. I, n° 57.
Trib. civ. de Besançon, 25 avril 1955: Gaz. Pal. 1955. II. p. 9.
CA Pau, 28 janv. 1948: JCP 1949. 4758.
161
sion of his lost or stolen object, the duty of reimbursement is excluded.963
The exclusion of reimbursement also applies if the asset is returned to his
owner by the police.964
If the conditions of article 2277 of the Civil Code are fulfilled, the
owner has to buy his property back. But he has a claim of reimbursement
against the person who sold his property to the possessor provided that he
can prove his fault. He has to file an action for tortious liability, not for
unjustified enrichment.965
If the conditions of reimbursement of the possessor are not fulfilled (i.e.
non application of article 2277), the possessor has to return the object immediately. He can however intend an action against his seller in order to
get back his purchase price and if necessary indemnity.
19.1.
Entitlement to benefits resulting from the movable
French law distinguishes between different categories of benefits (fruits),
such as: natural fruit (those that result directly from the movable) and civil
fruit (profit and interest that the movable produces as a consequence of a
legal relationship).
As a general principle recognized by legal scholarship,966 but not formulated specifically, the possessor is entitled to the fruit of an asset.967 Many
applications of this general principle can be found in statutory law. For
example, if a possessor has to return an immovable, he can keep the fruit
accrued until a claim (demande) of restitution is filed (C. civ., 1682, al. 2).
In inheritance cases, in order to ensure the equality of heirs, heirs must
surrender assets given to them by the deceased person, but they can keep
the fruit accrued before the death (C. civ., 856). Similar rules apply to
donees,968 where the gift would violate the reserve principle protecting heirs
(C. civ., art. 928) or in cases where the gift is revoked (C. civ., art. 958
and art. 962). Similar rules also apply to beneficiaries of a usufruct, lease
or antichrèse.
963
964
965
966
967
968
Cornu G., Droit civil, Introduction, Les personnes, Les biens, Montchréstien,
12e éd. 2004, n° 1648.
Cass. civ., 22 févr. 1956: D. 1956, 286. – CA Paris 7 févr. 1950: D. 1951, 456.
Cass. 1e civ., 11 févr. 1931: D. 1931. 1. 1229, note Savatier.
However, the justification of such a rule is disputed. See Zenati-Castaing F., Revet
Th., Les biens, p. 720, n° 509.
See also for légataires, C. civ., art. 1005 and 1014, al. 2.
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France
Courts distinguish between cases where the fruit can be kept, such as
cases where the contract is avoided for nullity969 or rescission970, and cases
where the fruit cannot be kept, as in a résolution of the contract.971 This is
criticized by part of legal scholarship972 as often the possessor was acting in
good faith in these cases.
The entitlement to the fruit produced by an asset is linked to the physical apprehension of the asset (corpus). However, in some cases, the possessor may have to surrender the fruit acquired.
As a general rule, no restitution is necessary if the fruit have been used
by the possessor to maintain the asset. Yet, in some cases, the fruit cannot
be used by the possessor, such as in the deposit contract or in the contract
guaranteed by a specific security (antichrèse), where the fruit must serve to
pay back the debt guaranteed by the antichrèse.
If the possessor is acting in good faith, he can keep the fruit. Good
faith is presumed and must be established by the claimant. Good faith is
construed widely.973 Good faith is considered both at the time of entry into
possession, where the possessor acquires the asset without knowing that
the title deed is void (C. civ., art. 550), but also throughout the whole
possession period (continuous bona fide). The possessor must clearly always
believe that he is entitled to the use of the asset. As soon as this belief ends,
the possessor is not bona fide anymore and cannot continue acquiring the
fruit. Therefore the possessor will have to surrender the fruit accrued after
the date of the filing of the claim, i.e. after proceedings for restitution have
been initiated.974
Whether the possessor is acting in good or bad faith, he must surrender
the fruit that he did not realize. If the fruit have been consumed, he must
pay an equivalent sum of money, estimated at the value of the fruit at the
time of their reimbursement.
If the possessor is acting in bad faith, he must surrender all the fruit obtained and even those that he neglected to realize. Additionally, whenever
the possessor acting in bad faith did not acquire the fruit that the movable
could have potentially generated, he must compensate the owner for their
loss.
969
970
971
972
973
974
Cass. civ., 21 déc. 1903: DP 1908. 1. 377.
Cass. 1e civ., 19 avr. 1977: Bull. civ. I., n° 176.
Req., 23 déc. 1936: Gaz. Pal. 1937. 1. 378.
See Zenati-Castaing F., Revet Th., Les biens, p. 721, n° 510.
Therefore both mistakes on facts (Cass. 3e civ., 23 mars 1968: Bull. civ. III, n° 138)
or on the state of the law are admitted, unless the mistake follows a misinterpretation
of an ordre public rule: Cass. civ., 11 janv. 1887: S. 1887. 1. 225.
Cass. civ., 23 déc. 1840: S. 1841. 1. 136. – Cass. civ. 21 déc. 1926: DH 1927. 84. –
Cass. 1e civ., 1er fév. 1955:Bull. I, n° 48. – Cass. 3e civ., 28 juin 1983: Bull. III, n° 148.
163
Notwithstanding the good or bad faith of the possessor, courts tend to
take into account the value of the asset at the time of entry into possession
to estimate the value of the fruit accrued. This complex calculation allows
the courts to extract the added value of the possessor’s work on the asset,
and thus exclude any fruit specifically due to the possessor’s work.975
The owner is only obliged to reimburse the possessor for the fructification expenses incurred (e.g. seeds, raw materials, etc.) if the possessor is
acting in good faith.
19.2.
Loss and deterioration of the movable
If the movable is lost or has deteriorated, the possessor is liable vis-à-vis the
owner for the loss or deterioration of the movable.
As a matter of principle, the asset has to be returned in its original
state.976 Restitution also includes the fruit of the asset,977 unless the possessor possessed them bona fide (C. civ., art. 549978). If the restitution is not
possible, for in the meantime the object has been damaged or destroyed,
sold, consumed, commingled or joined with other assets, the possessor has
to provide a monetary compensation.979
The calculation of this compensation obeys following rules. In order to
determine the value of the asset, one has to determine the value that it had
the day of the transfer.980 The asset’s value at the moment of alienation can
differ from the purchase price.981
As an exception, if the restitution duty applies to an amount of money,
the possessor must return the whole amount of money without regard to
any current depreciation.982 For that reason, the general principle determin975
976
977
978
979
980
981
982
Cass. 1e civ., 20 juin 1967: D. 1968, 32; JCP 1967, II, 15262; RTD civ., 1968, 397,
obs. Bredin. – Cass. 3e civ., 25 mars 1980: JCP 1980, IV, 225. – However, contra,
Cass. 1e civ., 19 janv. 1977: D. 1977, inf. rap., 212.
Cass. 1e civ., 23 fév. 1970: D. 1970, 604, note Etesse.
Cass. 3e civ., 22 juill. 1992: Bull. civ., III, n° 263.
C. civ., art. 549: “A mere possessor makes fruit his own only where he possesses in good
faith. If not, he is bound to restore the products with the asset to the owner who claims it;
where the said products are not found in kind, their value must be appraised at the date of
repayment.”
Cass. com., 29 fév. 1972: D.1972.623. – Cass. 1e civ., 26 avr. 1988: D.1988, inf.
rap. 134.
Cass. com., 18 nov. 1974: D. 1975 p.625, note Malaurie. – Cass. com., 21 juill. 1975:
D. 1976 p. 582, note Agostini et Diener. – Cass. com., 14 juin 2005, D. 2005, 1775.
Cass. 1e civ., 16 mars 1999: Bull. civ., I, n° 95.
Cass. 1e civ., 7 avril 1998, Bull.civ., I, n° 142.
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France
ing the due amount of money by considering the value on the day of the
alienation is very criticized by the doctrine.983
A long lasting dispute in French courts discussed whether the owner
had a right to compensation by the possessor for the use of the object.984
In 2004, a decision by the mixed Chamber of the Cour de cassation finally
decided985 that a compensation of the owner for the use by the possessor
was excluded.
French law recognizes exceptions to the principle of restitutions for
minors or adults in guardianship. Article 1312 of the Civil Code limits their
duty of restitution to what they still possess, “unless it is proved that what has
been paid has turned to their advantage”. This limitation of the duty of restitution is not applicable to minors who had concealed something fraudulently
to the other party to the contract (i.e. the owner).986
Another exception to the duty of restitution is recognized by application of the general nemo auditur principle.987 If the contract is avoided
because its object or cause is immoral (l’immoralité de l’objet ou de cause),
the claim of restitution is excluded.988 The intention of this exclusion of
restitution is to protect the public order.
This customary principle applies, when the two conditions are fulfilled.
First, there has to be a severe immorality (immoralité caractérisée), e.g. corruption, hired killers, gambling. Second, both parties to the contract have
to have acted immorally. However, the immoral attitude of each party can
be different, so that one of them can seem more or less immoral. For that
reason the court very often has to decide, case by case, if the nemo auditur principle applies or not.989 However this principle is rarely applied. In
recent cases it occurs mostly in contracts about surrogacy motherhood.990
983
984
985
986
987
988
989
990
Bénabent A., Les obligations, Montchréstien: 10e éd. 2005, n° 230.
Pro: Cass. com., 16 déc. 1975: Bull. civ., n° 308, p. 256. – Cass. com., 15 mars 1988:
Bull. civ., n° 105, p. 73. – Cass. 3e civ., 12 mars 2003: Bull. civ., n° 63. – Contra:
Cass. com., 11 mai 1976: Bull. civ., n° 162, p. 137; Cass. 1e civ., 2 juin 1987: Bull.
civ., n° 183, p. 137. – Cass. 1e civ., 11 mars 2003: Bull. civ., I, n° 74. – Only in case
of good faith of the owner: Cass. 3e civ., 12 janv. 1988: Bull. civ., n° 7, p. 4.
Ch. mixte, 9 juill. 2004: Bull. civ., C.M., n° 2; D. 2004.2175, notes Tuaillan et
Serinet; JCP 2004. II. 10190.
Cass. 1re civ., 12. nov. 1998: JCP 1999. II. 10053, note Garé: concealing the age
fraudulently does not fulfull this condition (C. civ., art. 1307).
nemo auditur propriam turpitudinem allegans. See Roland H., Boyer L., Adages du
droit français, Litec 4e éd. 1999, p. 483, n° 246.
Bénabent A., Les obligations, Montchréstien, 10e éd. 2005, n° 233.
Cass. crim., 7 juin 1945: D. 1946 p. 149. – Cass. crim., 3 juill. 1947: JCP 1948. II.
4474, note Carbonnier.
Cass. 1e civ., 25 fév. 2004: Bull. civ., n° 42; JCP 2004.I.149, n° 9, obs. Labarthe.
19.3.
165
Reimbursement for improvements and expenses
incurred during the possession of the movable
The whole regime of reimbursement for improvements and expenses incurred during the possession of the movable has been developed in French
law for restitution issues in immovable cases. However, it is possible to transpose the solutions to movables, as in fact, the theory of reimbursement for
improvements and expenses incurred is a mixture of modern law revival of
quasi-contractual relationships such as the gestion d’affaires, the enrichissement sans cause and the Roman theory of impenses (C. civ., art. 1381).
French law makes a clear distinction between different categories of
expenses, such as “necessary”, “useful” and “sumptuary” expenses. These
categories have been defined both in legislation and in court. The amount
to be reimbursed depends on the type of expense.
If the expense was necessary (impenses necessaires) to ensure the conservation of the asset, the owner must reimburse the cost of the expense. An
eventual higher value of the asset due to the expense incurred is not to be
taken into account. No distinction is made between the possessor acting
in good or in bad faith, as the theory of impenses only aims at rebalancing
the patrimonial situation.991
If the expense was only useful (impenses utiles) to the asset, thus increasing its value, the owner must reimburse the possessor either the cost of the
improvement or of the added value to the asset.
If the expense was sumptuary, without adding value to the asset, no
refunding is necessary
19.4.
Possessor’s right to retain the movable
French law recognizes the right of retention (droit de retention).992 This right
is defined as the right given to a creditor to withhold the asset he should
return to the debtor, as long as the latter does not pay his debt.993 This
991
992
993
Cass. 3e civ., 12 mars 1985: Bull. civ. III, n° 50.
Bibliography: Jiogue G., Le droit de retention conventionnel – Etude de droit français et de droit OHADA, RRJ 2007-4, p. 1765-1797. – Bardet-Blanvillain A.,
Le droit de rétention: un domaine en deux dimensions, PA, 25 mar 2005, n° 60,
p. 9. – Aynès A., La consécration légale des droits de rétention, D. 2006, Dossier
n° 19, 1301, 1302. – Aynès A., Le droit de rétention, unité ou pluralité, thèse Paris
II, préf. Larroumet, Economica coll. Recherches juridiques, 2005. – Durand J.-F.,
Le droit de rétention, thèse Paris II, 1979.
Cornu G., Vocabulaire juridique, Association Capitant, PUF 2002, [droit de rétention] « droit reconnu à un créancier de retenir entre ses mains l’objet qu’il doit restituer à
son débiteur, tant que celui-ci ne l’a pas lui-même payé ».
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France
right is conceived as a security right that guarantees three types of debts:
the reimbursement of expenses / improvements made on a given asset; the
payment of a claim for the compensation of damage caused by the asset;994
or, simply to guarantee performance of the other party.
Initially, the 1804 Civil Code did not recognize a general right of retention, but only gave this right to specific persons in special circumstances.
Three different types of rights of retention were specified:995 first the right
of retention as a type of security in rem; second the right of retention as
an independent contractual guarantee; and last the right of retention as a
guarantee for civil liability. The Civil Code thus lists a number of beneficiaries of this right: the seller (C. civ. art. 1612)996 the depository (C. civ.,
art. 1948),997 the lessee (C. civ., art. 1749) and the heir to cover his expenses
(C. civ., art. 862). However, both courts and legal scholarship998 consider
that these examples are only applications of a general principle that entitles
every creditor to retain a movable belonging to the debtor as a guarantee of
payment. As such, courts have recognized a right of retention for the agent
(mandataire)999 the broker (commissionaire)1000 acting in good faith,1001 the
contractor (entrepreneur)1002 or even to the defendant to an action in revindication (even if he is in bad faith1003). This general principle translates as
the idea that it conforms to the ideal of justice to deny the return of an
asset to someone who does not pay his debts.1004 Additionally, when a contract turns out to be void or is avoided after both parties have performed, a
994
Cassin R., De l’exception tirée de l’inexécution dans les rapports synallagmatiques
(exception non adimpleti contractus) et ses relations avec le droit de retention, la
compensation et la résolution, Th. Paris, 1914.
1995 Jiogue G., Le droit de retention conventionnel – Etude de droit français et de droit
OHADA, RRJ 2007-4, p. 1765-1797 (1766).
1996 C. civ., art. 1612: “The seller is not obliged to deliver the asset where the buyer does not
pay the price of it unless the seller has granted him time for the payment”.
1997 Art. 1948: “A depositary may retain the deposit until full payment of what is owed him by
reason of the deposit.”
1998 Simler Ph., Delebecque Ph., Droit civil, Les sûretés, la publicité foncière, 4e éd.
Dalloz, 2004, n° 572. – Cabrillac Ch., Mouly Ch., Droit des sûretés, 7e ed. Litec,
2004, n° 544. – Marty M., Raynaud P., Jestaz Ph., Droit civil, les sûretés, la publicité foncière, 2e éd. 1987, n° 28.
1999 Cass. civ., 17 janv. 1866: DP 1866, 1, 76. – Cass. civ., 15 juil. 1903: S. 1905.1.213.
1000 Cass. com., 11 mai 1976: Bull. IV, n° 161. – Cass. 1e civ., 19 juin 1978: Bull. Civ. I, n° 171.
1001 Cass. com., 3 oct. 1989: JCP 1990, II, 21454, note Béhar-Touchais; RTD civ 1990,
306, note Zenati.
1002 Req., 13 mai 1861: DP, 1861. 1. 328. – Req., 25 fév. 1878: DP. 1878. 1. 302.
1003 Cass; 3e civ., 23 avr. 1974: JCP 1975, II, 18170, note Tuillier; RTD civ. 1976, 164,
obs. Giverdon.
167
general principle of unjustified enrichment law applies, according to which
each party can withhold the performance of its obligation of reversal until
the other party renders performance. 1004
In general, one can consider that the right of retention will apply to
cases such as where the possessor of the asset must return it either because
the transfer of the asset was based on a void or an avoided contract or
because the right to use or possess the movable has ended, or never even
existed. In these cases, the possessor may retain the asset until any expenses
made on the asset are reimbursed by the claimant.
This general principle was developed by the 2006 legislation on securities.1005 The new article 2286 of the Civil Code1006 allows the retention of
an asset if there is a direct link between the asset and the claim that is guaranteed (lien de connexité1007).1008 This direct link can be contractual as desired by the parties (connexité conventionnelle – C. civ. art. 2286, 1°),1009 can
be an indirect effect of the contract (connexité juridique – C. civ. art. 2286,
2°)1010 or can simply represent the cost of detaining an asset for the owner
1004
Ordonnance n° 2006-346 du 23 mars 2006. – Aynès A., La consécration légale des
droits de retention, D. 2006, 1301. – Simler Ph., Dispositions générales du livre IV
nouveau du Code civil, JCP 17 mai 2006, I, 2.
1006 See former court cases: Req., 26 avr. 1900: S. 1901, I, 193, note Ferron: « pour que
le droit de retention existe en faveur d’un créancier qui détient la chose appartenant au
débiteur, il suffit que la detention se rattache à une convention ou un quasi-contrat qui ait
donné naissance à la créance ». – Cass. civ., 17 janv. 1866: DP 1866, I, 76.
1007 Gabet-Sabatier C., Le rôle de la connexité dans l’évolution du droit des obligations, RTD civ., 1980, p. 39.
1008 Aynès A., Le droit de rétention. Unité ou pluralité, préf. Larroumet, Economica
2005. – See however, the theory of a right of retention « ex dispari causa », where no
link is required between the claim and the asset, the creditor being entitled to withhold the asset every time the need arises to ensure his own satisfaction: Bonnecase
J., Supplément au Traité théorique et pratique de droit civil, Baudry-Lacantinière,
t. V, 1930, p.644. – Colin et Capitant, Cours élémentaire de droit civil français,
10e éd. Par Julliot de la Morandière, t. II, n° 1473. This theory has however been
rejected by the courts: Cass. 1e civ., 16 juil. 1969: JCP 1969, IV, 238. – Cass. com.,
11 juil. 1983: D. 1984, IR, p. 82, obs Vasseur. – Cass. com., 13 déc. 1983: Bull. civ.
IV, n° 147. – By comparison, German law (§ 369, Abs. 1 HGB) recognizes a right of
retention ex dispari causa as soon as the parties are in a business relationship and the
creditor, a businessman retains an asset belonging to the debtor.
1009 See Devésa Ph., La retention de documents: contribution à la notion générale de
retention, PA 1995, n° 73, p. 11.
1010 Aubry C., Rau C., Cours de droit civil français, tome III, 7e éd. par Esmein, 1968,
§ 256 bis, p. 189. – Cass. soc., 9 janv. 1958: D. 1958, 270.
1005
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France
(connexité matérielle – C. civ. art. 2286, 3°).1011 The two latter cases are
retention rights that derive automatically from the law.1012
In some cases there is both a legal and a material link (connexité matérielle et juridique).1013 The form of retention based on a contractual link
(connexité conventionnelle1014) was disputed in legal literature, but the 2006
legislation explicitly recognizes this form.1015 It appears when the parties to
a contract decide to entitle one of the parties to retain an asset belonging
to the other party even though there is no legal or material link between
the claim guaranteed and the asset.
In general, the right of retention is only applicable to a monetary claim
that is certain (certitude),1016 liquid (liquidité) and payable (exigible).1017
However, these three conditions are not fully applicable to the retention
based on a contractual link (connexité conventionnelle).1018
The right of retention is lost if the person holding the asset surrenders
it voluntarily.1019 However, the “detention” of the asset can be indirect.1020
1011
Mande-Djapou J., La notion étroite de droit de rétention, JCP 1976, I, 2760. – Cass.
1e civ., 15 juin 1962: Bull. civ. I, n° 303.
OHADA, RRJ 2007-4, p. 1765-1797 (1772). – Pérochon F., Le droit de rétention,
accessoire de la créance, Mélanges Cabrillac, Litec 1999, p. 378.
1013 This is the case for the right of retention of the garage proprietor, of architects and
chartered accountants in repect to documents produced for the client.
1014 This form was disputed until 2006, as according to some authors only the law can
create a form of retention right that would give a hidden preferential right (sûreté
occulte) to third paties. See in this respect, Legeais D., Sûretés et garanties du credit,
LGDJ 4e éd. 2004, p. 476, n° 684. – Simler Ph., Delbecque Ph., Droit civil, Les
sûretés, la publicité foncière, 4e éd. Dalloz, 2004, p. 434, n° 484. – However: Dupichot Ph., Le pouvoir des volontés individuelles en droit des sûretés, thèse Paris II,
préf. Grimaldi, éd. Panthéon-Assas 2005, n° 943. – Cabrillac M., Mouly Ch.,
Droit des sûretés, 7e éd. Litec, 2004, p. 468, n° 551. Now art. 2286, 1° explicitly
recognizes this form of right of retention.
1015 For an analysis of this form: Aynès A., Le droit de retention conventionnel, Dr. et
Patr. n° 142, nov. 2005, p. 40.
1016 Cass. 1e civ., 3 mai 1966: D. 1966, 649, note Mazeaud. – Cass. com., 7 avr. 1998, JCP
G 1999, I, 116, n° 11, obs. Delebecque.
1017 However, courts do not always require that the claim is liquid or payable: Cass. 3e
civ., 23 avril 1974: JCP 1975, II, 18170, note Thuillier; RTD civ. 1976, 164, obs.
Giverdon. – Cass. 3e civ., 12 mars 1985: Bull. civ. III, n° 50. – The 2006 legislation
only insists on the fact that the claim should be payable (exigible).
OHADA, RRJ 2007-4, p. 1765-1797 (1772).
169
The right of retention cannot be divided: the creditor has a right on the
whole asset until full payment of the debt due.1021
The right of retention is not considered to be a right in rem1022 nor an
obligatory right.1023 It is not a right in rem; therefore, there is no droit de suite
nor preferential rights (droit de preference).1024 It is not an obligatory right,
as the debtor has no right to force the creditor to release the asset, except
when the claim has been paid. The right of retention is a pure factual
situation1025 where the creditor holds the asset through a form of natural
possession (possession naturelle).1026
The right of retention has been considered alternatively as a security
right1027 or as a right that simply guarantees the satisfaction of the credi1019
1019
1020
Retention requires the physical holding of the asset: Req., 25 fév. 1878: DP, 1978.1
302: le droit de retention ne peut exister sans la detention de la chose.
1020 Req., 19 juil. 1904: DP, 1906, 1, 1, note Glasson. – A clear distinction is thus made
on the one side between a right of retention based on a material or legal link (connexité matérielle ou juridique) and the right of retention as a attribute of a pledge (gage
avec dépossession) and on the other side the fictuous retention right (droit de rétention
fictif). This fictuous or symbolic retention serves the purpose of bocking the debtors
rights on an asset (i.e. preventing the sale of a car, because the debtor does not detain
the relevant documents), rather than allowing a physical apprehension of the asset.
1021 Cass. civ., 9 déc. 1840: S. 1841. 1. 23. – Req., 13 mai 1861: DP 1861. 1. 328.
1022 Zenati-Castaing F., Revet Th., Les biens, p. 729, n° 517. However, Mestre J.,
Putman E., Billiau M., Droit commun des sûretés réelles, Traité de droit civil, sous
la dir. Ghestin J., LGDJ 1996, n° 60 et 84. – See also, Cass. 1e civ. 7 janv. 1992: Bull.
civ.,I, n° 4; JCP 1992, I, 3585, n° 16, obs. Delebecque; JCP 1992, II, 21971, note
Ramarolanto-Ratiaray; RTD civ., 1992, 586, obs. P.-Y. Gautier: « le droit de rétention
d’une chose, conséquence de sa détention, est un droit réel, opposable à tous, et même aux
tiers non tenus de la dette ». – Cass. com., 3 mai 2006: RTD civ. 2006, 584, obs. Revet.
1023 However, Catala-Franjou N., De la nature juridique du droit de rétention, RTD
civ. 1967, 9. – Also, Cabrillac M., Mouly Ch., Cabrillac S., Petel Ph., Droit
des sociétés, 8e éd. 2007, n° 591.
1024 Cass. com., 19 fév. 1958: Bull. n° 82.
1025 “Sûreté de fait”: Toulouse, 11 fév. 1977: JCP 1978, II, 18898, note Verschaeve.
1026 Let it be stressed that the possession here is does not follow the conditions of the civil
possession developped supra 2.1: Notion of possession. It is clear that the creditor
retaining the asset is not in good faith as to his possession, nor does he have a legal
title to possess. – See also the distinction between fictive and non fictive retention,
linked to fictive or symbolic possession: Cass. com., 11 juin 1969: D 1969, 244, note
Bihr. – Cass. com., 20 janv. 1971: Bull. n° 19.
1027 Zenati-Castaing F., Revet Th., Les biens, p. 724, n° 513. – Additionally, the right
of retention is classed in the part of the Civil Code applicable to securities. – Yet,
Cass. com., 20 mai 1997: D. 1998, somm. p. 102, obs. Piedelièvre, et p. 115, obs
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tor.1028 This gives the creditor a means of pressure against the debtor, but
also creates rights in respect to third parties. Thus, the right of retention
can have third parties effects especially in relation to other creditors of the
debtor1029 and as such has erga omnes effects.1030 For example, the possession
of the creditor exceptionally blocks the revindication of a new owner, if the
property has been transferred in the meantime, due to the non-payment of
the debtor’s debt. Therefore, as long as physical control is maintained, the
right of retention provides priority over subsequent dispositions.
Exceptionally, if an asset is used as a pledge for two different creditors,
the first pledge being without possession of the creditor (gage sans dépossession), the second entitling the creditor to possession (gage avec dépossession), article 2340 of the Civil Code gives the first creditor a preferential
right against the second creditor even if this second creditor has a right of
retention in respect to the debtor or third parties.1031
However, in respect to other creditors, the possessor only has a general
pledge on the asset.1032 This means in particular, that if the asset is to be
sold to pay for the claim, this possessor will have to divide the proceeds with
Libchaber; JCP 1998, I, 103, n° 23, obs. Delebecque: « le droit de rétention n’est pas
une sûreté, et n’est pas assimilable au gage ».
1028 See the distinction in French law between security rights and rights of guarantee:
Malaurie Ph., Aynès L., Droit civil, les sûretés, la publicité foncière, 8e éd. 1997,
Cujas, n° 2: « La sûreté est […] une garantie en ce sens qu’elle rend plus probable la satisfaction du créancier. Mais toute garantie n’est pas une sûreté. ». – Also, Ginestet C.,
La qualification des sûretés, Défrenois 1999, art. 36927 et 36940.
1029 Cass. civ., 6 avril 1875: DP 1875. 1.354. – Req., 23 mai 1881: S. 1881. 1. 312. – Cass.
civ. 12 mai 1903: S. 1905. 1. 327.
1030 Jiogue G., Le droit de rétention conventionnel – Etude de droit français et de droit
OHADA, RRJ 2007-4, p. 1765-1797 (1765). – Also, Cass. 1e civ, 7 janv. 1992: Bull.
civ.,I, n° 4; RTD civ. 1992, 586, note P.-Y. Gautier; JCP G 1992, I, 3583, n° 16, obs.
Delebecque; JCP 1992, II, 21971, note Ramarolanto-Ratiaray.
1031 Derrida F., La dématérialisation du droit de rétention, in Mél. Voirin, LGDJ 1967,
p. 178. – Also in general, Pourquier C., La rétention du gagiste ou la supériorité
du fait sur le droit, RTD com., 2000, p. 569.
1032 The fact that art. 2286 C. civ. is set in the chapter pertaining to securities has caused
some confusion. However, three reasons are given to exclude the qualification of a
security (Jiogue G., Le droit de rétention conventionnel – Etude de droit français
et de droit OHADA, RRJ 2007-4, p. 1765-1797 (1779)): there is no right of preference for the creditor / possessor; the general pledge of every creditor is not considered
a security; the right of retention is not listed in the catalogue of real securities of
art. 2329 C. civ. – Catala-Franjou N., De la nature juridique du droit de retention,
RTD civ. 1967, p. 9. – Piédelièvre S., L’efficacité du droit de retention face aux autre
sûretés réelles, Droit et procedures n° 5, sept. 2001, La revue des idées, n° 290.
171
other creditors, but may subordinate the release of the asset to the payment
of the claim it guarantees.1033
The right to retain does not include a right to sell the retained property,
or have it sold. However, as an exception, in commercial relations, between
two parties that are both businessmen acting as such, the right of retention
entitles the creditor to sell the retained asset after the avoidance of a sales
contract.
There are no conditions pertaining to the good or bad faith of the
possessor,1034 however, the taking of possession must be conform to law,
and thus the right to retain is excluded with regard to property, which has
been taken away without permission or fraudulently.1035 The only limits
that apply are the limits relating to the payment of the debt: the possessor
can only hold the asset until payment.
Additionally, the possessor may not use the asset nor perceive the fruit
or products of the asset.1036 The creditor / possessor only has the right to
detain the asset and as such also must fulfil the obligations of a depository.
As soon as the creditor voluntarily departs of the asset, the right of retention disappears.1037
If the asset is released by the possessor to the owner, the latter must
cover the expenses borne by the possessor during the detention of the asset
(théorie des impenses).
19.5.
Who bears the expenses of the restitution
of the movable to the owner?
French Law does not specifically deal with this question. However, as a general rule the costs of restitution will be allocated depending on the reason of
restitution, and more specifically on the good or bad faith of the possessor.
If the asset was lost or stolen, the lawful owner can reclaim the asset from
a possessor acting in good faith, yet he must also bear the expenses of the
restitution the same way as he must compensate the possessor. If the possessor is acting in bad faith, in all likelihood, the costs of restitution will be
borne by such a possessor.
1033
Cass. civ., 31 mars 1851: DP 1851. 1. 65.
Cass. 3e civ., 3 oct. 1990: Bull. civ. III, n° 180; RTD civ. 1993, 165, obs. Zenati that
considers good faith in a large way: good faith is required in the taking of possession
of the asset and not in the knowledge that the possessor is not owner. – ZenatiCastaing F., Revet Th., Les biens, p. 730, n° 518.
1035 Cass. civ., 14 mars 1883: DP, 1883, 1, 338. – Cass. civ., 28 fév. 1957: D. 1957, 266.
1036 Zenati-Castaing F., Revet Th., Les biens, p. 730, n° 518.
1037 Req., 25 fév. 1878: DP 1878. 1. 302. – Cass. com., 23 mai 1967: JCP 1967, IV, 102.
1034
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Legeais D., Les nouvelles fonctions de la propriété, in La propriété, Travaux de
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créances et des dettes)
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(Cited as, J. Ghestin, B. Desché, La vente)
Huet J., Les principaux contrats spéciaux, Traité de droit civil sous
la dir. de J. Ghestin, LGDJ, 2e éd. 2001. (Cited as: Huet J., Les principaux
contrats spéciaux)
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tome 2, Economica, 5e éd. 2006. (Cited as: Larroumet Ch., Les biens –
Droits réels principaux)
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(Cited as: Malaurie Ph., Aynès L., Les biens)
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AJ Pénal
AJDA
Arch. phil. du droit
Actualités juridiques de droit pénal
Actualités juridiques de droit des affaires
Archives de philosophie du droit
Bull. civ.
Bull. crim.
Bulletin civil de la Cour de cassation
Bulletin criminel de la Cour de cassation
CA
C. av. civ.
C. civ.
C. com.
C. env.
C. proc. civ.
C. prop. intell.
C. rur.
Cass req.
Cass. ass. plén.
Cass. civ.
Cass. com.
Cass. crim.
CEDH
chr.
CJCE
Cour d’appel
Code de l’aviation civile
Code civil
Code de commerce
Code de l’environnement
Code de procedure civile
Code de propriété intellectuelle
Code rural
Chambre des requêtes de la Cour de cassation
Assemblée plénière de la Cour de cassation
Chambre civile de la Cour de cassation
Chambre commerciale de la Cour de cassation
Chambre criminelle de la Cour de cassation
Cour européenne des droits de l’homme
Chronique
Cour de justice des Communautés européennes
D.
D. Affaires
D.S.
DDHC
Défr.
DH
DP
Dr. et patr.
Revue Dalloz
Dalloz Affaires
Dalloz Sirey
Déclaration des droits de l’homme et du citoye de 1789
Défrenois
Dalloz Hebdomadaire
Dalloz Périodique
Droit et patrimoine
GA de la jurisp. civ.
GAJC
Grands arrêts de la jurisprudence civile
Grands arrêts de la jurisprudence civile
(ou constitutionnelle)
Gazette du Palais
Gaz. Pal.
187
inf. rap.
Informations rapides
JCP
JCP, éd. N
JCP, éd. E
JCP, éd. G
JDI
JO
Journ. Trib.
Semaine juridique
Semaine juridique, édition notariale
Semaine juridique, édition entreprise
Semaine juridique, edition générale
Journal de droit international (Le Clunet)
Journal officiel
Journal des tribunaux (Belgique)
LGDJ
Librairie générale de droit et de jurisprudence
Mél.
Mélanges
Ord.
ordonnance
PA
pan. jur.
Préf.
PUAM
PUF
Les Petites Affiches
Panorama de jurisprudence
préface
Présses universitaires d’Aix-Marseille
Presses universitaires de France
RDI
Rev. crit.
Rev. dr. imm.
RIDA
RIDC
RRJ
RTD civ.
RTD com.
Revue de droit international
Revue critique de droit international privé
Revue de droit immobilier
Revue internationale du droit d’auteur
Revue internationale de droit comparé
Revue de la recherche juridique
Revue trimestrielle de droit civil
Revue trimestrielle de droit commercial
S.
SLC
somm.
Sirey
Société de législation comparée
sommaire
TGI
TI
Tribunal de grande instance
Tribunal d’instance
in Belgium
Caroline Cauffman
Vincent Sagaert
Table of Contents
Part I:
Basic information on property rights
1. Introduction. The distinction
between real rights and personal rights
199
2. Ownership and restricted real rights
2.1. Notion of ownership
2.1.1. Definition and content
2.1.2. Powers of the owner
2.1.3. Transferability of movable property
2.2. Other property rights in movables
2.3. Remedies for property rights
203
203
204
204
206
206
3. Possession
3.1.1. Requirements
3.1.2. Distinction between possession and detention
3.5. Self-help
207
207
209
209
210
211
211
4. Property and obligatory rights to hold, use or acquire
4.1. Rights to use movables
4.1.1. Obligatory rights: loan, lease and lease-purchase
(a) Generalities
(b) “Obligatory” protection of the user’s possession
(i) The relationship between the
contracting parties
(ii) The relationship with third parties
4.1.2. Property rights: usufruct and the right of use
4.2. The right to hold movables
4.2.1. Obligatory rights: the contract of deposit
4.2.2. Property rights: pledge
(a) Civil pledge
(b) Commercial pledge
211
211
211
213
213
214
214
215
215
215
216
217
Belgium
192
4.3.
4.4.
The right to acquire movables
4.3.1. Right of pre-emption
4.3.2. Option to buy
4.3.3. Right of repurchase
(a) Generalities
(b) Conditions
(c) Situation pendente conditione
(d) Execution of the right of repurchase
(e) Situation of the parties after repurchase
Contracts under a suspensive time limit
5. General scope and content of the rules on transfer of movables
217
217
217
218
218
219
220
220
221
221
222
Part II:
Transfer of ownership directly from the owner
to the transferee: “derivative” acquisition
6. The system of transfer of movables in Belgian law
6.1. Basic characteristics and overview
6.2. General issues
6.3. Means to acquire ownership
6.3.1. Contracts
6.3.2. Unilateral promises
(a) Principle: binding force of unilateral promises
(b) Exception: the unilateral promise of a gift
6.3.3. Other sources of obligations
(a) Torts
(b) Unjust enrichment
(c) Court orders
(d) Succession law
(e) Wills
225
226
226
227
228
228
229
230
230
231
232
232
232
7. Validity of the contractual / promissory obligation
7.1. Validity requirements and defects
7.1.1. General rules
(a) Consent
(b) Capacity
(c) Object
(d) Cause
233
233
233
236
237
238
5. General
Table
of Contents
scope and content of the rules on transfer of movables 222
7.1.2. Special rules for gifts, including wills
(a) Sanity of mind
(b) Defects of consent
(c) Capacity 7.2.Remedies
7.2.1. Absolute / relative voidness
(a) Necessity of judicial intervention
(b) Causes of absolute / relative voidness
(c) Consequences of absolute / relative voidness
7.2.2.Damages
8. Requirements for ownership 8.1.Principle
8.2.Exceptions
8.2.1. Article 2279 C.C.
8.2.2.Representation
9. Consensual system
9.1. General principle: transfer by mere consent
9.2. Exceptions: according to the nature of the property
9.2.1. Generic property
9.2.2. Future property
9.2.3. Sale of property not (yet) owned by the transferor
9.2.4. Agreements subject to a suspensive condition 9.2.5. Transfer in execution of an alternative
obligation / claim
9.3. Statutory exceptions to consensual transfer
9.4. Effect of the transfer between the parties and
in relation to third parties
9.5. Requirement of delivery / traditio 9.5.1.Introduction
9.5.2.The traditio in gifts from hand to hand 9.5.3. Delivery in contracts of sale (a)Generalities
(b) Concept of delivery
(c) Modes of delivery
(i) Factual handing over (traditio) (ii) Handing over the keys and other forms
of symbolic traditio
(aa)Keys
(bb)Documents of title
(cc)Other forms of delivery
193
238
238
239
240
241
241
241
241
243
243
244
244
244
244
248
252
252
255
255
257
257
257
258
260
260
260
262
262
264
264
265
265
265
266
267
Belgium
194
9.6.
9.7.
(iii) Mere consent
(aa) Impossibility of delivery at the moment of sale
(bb) Seller’s control over the property in
another capacity
(cc) The seller’s continued possession of the
property by agreement
(iv) Delivery of intangible rights
(aa) Generalities
(bb) Special rules
(v) Particularities
(d) Delivery and the opposability of the
transfer against third parties
9.5.4. Real agreements
Registration
9.6.1. Sea ships
9.6.2. Aircrafts
9.6.3. Cars
Requirement of payment for the transfer of property
9.7.1. Principle: transfer of property does
not require payment
9.7.2. Exception: possibility of contractual deviation
9.7.3. Property related consequences of non-payment
(a) Contract of sale
(i) Right to withhold performance
(ii) Quasi-revindication
(iii) Right to terminate the contract
(b) Other contracts
268
268
269
269
270
270
270
271
272
272
273
273
274
275
275
275
276
276
276
276
277
277
277
10. Double / multiple selling
278
11. Rules for “selling in a chain”
279
12. Transfer or acquisition by indirect representation
12.1. Contractual rights and obligations
12.2. Transfer of property rights
279
281
13. Insolvency of the transferor or transferee
13.1. General considerations
13.2. Protection of the transferee against insolvency
of the transferor
281
282
5. General
Table
of Contents
scope and content of the rules on transfer of movables
222
13.3. Protection of the transferor against insolvency
of the transferee
13.3.1. Legal lien
13.3.2. Quasi-revindication
13.3.3. Rescission of the agreement
13.3.4. Right of retention
13.3.5. Stoppage in transitu
195
283
283
285
286
287
288
14. The transfer of the risk in contract law
289
15. Transfer and co-ownership
15.1. Ordinary (“accidental”) co-ownership
15.2. Compulsory co-ownership
15.3. Voluntary co-ownership
289
291
291
16. Transfer and unidentified property
16.1. Transfer of unidentified property
16.2. Floating charge
292
292
Part III:
17. Specificatio – accessio
17.1. Specificatio
17.2. Accession (“accessio”)
18. Good faith acquisition
18.1. Scope
18.1.1. Material scope of the property
18.1.2. Scope of the position of the real owner
18.1.3. Scope of the position of the transferee
(a) Meaning of “transferee” –
rights the transferee intended to acquire
(b) Good faith
(c) Possession
(i) Real possession
(ii) Possession pro suo
(iii) Possession free of defects
(d) Title
18.1.4. Scope of the position of the transferor
294
295
298
298
298
299
299
299
300
301
301
302
302
303
304
Belgium
196
18.2. The protection offered to the acquirer
18.2.1. Voluntary dispossession of the real owner
18.2.2. Involuntary dispossession of the real owner
(a) Meaning of involuntary dispossession
(b) Basic rule
(c) Banknotes
(d) Reimbursement of the purchase price
(e) Bearer shares
(f) Other specific rules
18.2.3. Exception: lessor’s right of revindication
304
304
304
304
305
306
306
307
307
308
19. Acquisitive prescription
19.2. Requirements of acquisitive prescription
19.3. Prescription of ownership
308
310
312
20.1. Occupation
20.2. Treasure finding
20.3. Finding of lost property
20.4. Separation
312
313
314
314
Part IV:
21. Loss of ownership
21.1. Transfer of ownership
21.2. Fulfilment of a resolutive condition
21.3. Abandonment
21.4. Caducité?
21.5. Loss of ownership in other ways
316
316
317
317
318
22. The law of restitution of movables
22.1. Fruits
22.1.1. Definition of fruits
22.1.2. Good faith possession
22.1.3. Bad faith possession
(a) Principle: full restitution
(b) Exception: moderations
22.1.4. Application to the obligation of restitution
319
320
320
321
322
322
323
324
5. General
Table
of Contents
scope and content of the rules on transfer of movables
222
22.2. Loss and deterioration
22.2.1. Restitution following revindication
22.2.2. Restitution at the end of a contract of lease
22.2.3. Restitution at the end of a contract of loan
22.2.4. Restitution at the end of a contract of deposit
22.2.5. Restitution at the end of a contract of pledge
22.2.6. Restitution following an action based on an
undue payment
22.3. Reimbursement for improvements and expenses incurred
during the possession of the movable
22.3.1. Restitution after revindication
22.3.2. Restitution at the end of the rental contract
22.3.6. Restitution following an action based on undue
payment
22.4. Possessor’s right to retain the movable
22.4.1. Introduction
22.4.2. Definition
22.4.3. Conditions
22.4.4. Real or personal nature
22.5. Expenses and place of restitution
22.5.1. Restitution pursuant to avoidance of the contract
22.5.2. Restitution when the right to use is invalidated
22.5.3. Restitution when the right to use has ended
22.5.4. Restitution in case of theft and similar cases
197
324
324
325
325
326
326
327
327
327
328
329
329
329
329
330
330
330
330
334
335
335
335
336
336
23. Retention of title
23.1. General overview
23.2. Legal categorization of title retention
23.3. Conditions for the proprietary effects of title retention
23.4. Effects of re-sale by the purchaser
336
337
339
340
Table of Literature
343
350
Part I:
Basic information on property rights
1.
Introduction. The distinction
between real rights and personal rights
General views on the distinction between real rights and personal rights
have been subject to major developments in French and Belgian law. As a
result, Legal scholars and case law have not been able to reach any agreement on the distinctive criteria. The following analysis will show how the
objective conceptions of real rights in the 19th century have been replaced
by an increasing measure of subjectivity within the concept of real rights.1
In the 19th century, it was generally acknowledged that the criterion
for distinguishing between real rights and personal rights was to be found
in their internal structure. A personal right establishes a legal relationship
between two (natural or legal) persons: the one is the creditor entitled to
claim compliance with the obligation; the other is the debtor bound to
fulfil the obligation to which he has agreed. In contrast, a real right does
not establish a relationship between two subjects, but between a subject
and an object burdened with the real right.
So, a real right generates a direct relationship between the holder of
the real right and the asset subject to the right, independently from the
intervention of another person (for instance, the owner).2 According to
this view, it should not be possible to create a real right that obliges the
debtor to take positive action.3
1
2
3
For an extensive analysis of this development: V. SAGAERT, “Les interferences
entre le droit des biens et le droit des obligations. Une analyse de l’évolution depuis
le Code civil” in P. WERY (ed.), Le droit des obligations contractuelles et le bicentenaire
du Code civil, Bruges, Die Keure, 2004, 354-395.
H. DE PAGE, Traité élémentaire de droit civil belge, I, Introduction. Théorie générale des
droits et des lois. Les personnes – la famille, Brussels, Bruylant, 1962, n° 127. Comp. already POTHIER, who has highly influenced the codification: “le jus in re est le droit
que nous avons dans une chose, par lequel elle nous appartient, au moins à certains
égards. Le jus ad rem est le droit que nous avons, non dans la chose, mais seulement
par rapport à la chose, contre la personne qui a contracté” (R.J. POTHIER, Traité
de la propriété, in Oeuvres de R.J. Pothier, Brussels, Tarlier, 1831, n° 1).
Comp. J. HANSENNE, “La limitation du nombre de droits réels et le champ
d’application du concept de service foncier”, R.C.J.B. 1968, 176-177.
200
Belgium
This view is based on an economic distinction between two categories
of economic values: property and services rendered by another person. The
first category reflects real rights, the second category personal rights.4 If the
holder of a limited real right in another’s asset also has a claim against the
owner of that asset, that claim against the owner should not be considered
a real right even though it would be closely related to the exercise of the
limited real right.
This “objective” approach, as described above, was subject to critical
observations by PLANIOL at the beginning of the 20th century. According
to his view, a legal relationship must always involve two (legal or natural)
persons. A legal relationship can never be established between a legal subject and a legal object since the subject-object relationship can only be a
factual one.
Therefore, both real rights and personal rights are created between persons, so that no difference between those categories exists in the internal
structure.5 Rather, the difference exists in the external structure: a personal
right is vested between one person (the creditor) and one other person (the
debtor), whereas a real right is vested between one person (the holder of the
real right) and people in general. All other persons – except for the holder
of the right – have to refrain from action that would impede the exercise
of the real right.
In other words, a real right is reflected in the universal passive obligation not to obstruct the prerogatives attributed to the holder of the real
right.6 These distinctive features also entail, as was the case under the classic conception, that no positive obligation can correspond to a real right.7
In conclusion, a real right is, according to this “subjective” approach, enforceable erga omnes, whereas a personal right would only be enforceable
against one person (the debtor). This subjective theory is called “personnalisme”, because it emphasises the persons involved in all legal relationships,
whatever their nature may be.
However, this “personnalisme” has also been the subject of criticism. It
has been observed that the universal obligation not to impede the rights of
others is not a distinctive feature of real rights and personal rights.8 Indeed,
the existence of personal rights is, similar to real rights, opposable against
4
5
6
7
8
H. DE PAGE, I, n° 129.
M. PLANIOL, Traité élémentaire de droit civil, Paris, Pichon, I, 1928, n° 2159.
L. MICHAS, Le droit réel, considéré comme une obligation passivement universelle, Paris,
Thesis, 1900; M. RIGAUD, Le droit réel: histoire et théories: son origine institutionnelle,
Toulouse, Thesis, 1912.
M. PLANIOL, I, n° 2163.
R. DEKKERS, “Du neuf sur les droit réels”, J.T. 1960, p. 697, n° 4. In France:
D. FERRU, La notion de servitude, Paris, L.G.D.J., 1973, 100.
1. Introduction. The distinction
201
third parties, as interference with those personal rights can give rise to a
tort claim.
For instance, if a third person is co-operating intentionally in the breach
of contract by one of the contracting parties, then he can be held liable for
tortious interference with a contract (in civil law terminology: complicity
in another’s breach of contract).9 This example demonstrates that even
personal rights should be respected by everyone, so that there exists a universal passive obligation not to interfere with these rights In conclusion,
everybody has a (passive) obligation not to infringe the rights belonging
to other persons, regardless of the nature of these rights. The “absolute” effect of real rights may be greater than those of personal rights – due to the
right to follow the object and the possibility of tracing it, both of which are
attributed to the holder of a real right – but the distinction between both
types of rights is only a matter of intensity and not substantive.
GINOSSAR introduced an innovative discourse on the distinction
between real rights and personal rights in his Ph.D. thesis in 1960.10 He extended the scope of the concept of “property” to include incorporeal property: rights, both personal and real, belonging to a person. Even personal
rights may be the object of property, as the creditor can be seen as the owner
of his claim. In his view, property is a uniquely identifiable right, which
cannot be assimilated into personal rights, but also not into real rights.
In GINOSSAR’s view, the only remaining real rights are restricted real
rights. And these rights are confined to obligations imposed on the owner
of the property rights. In other words, real rights are claims against the
owner of the property burdened with this right. In that sense, there is no
fundamental difference between the nature of real rights and the nature of
personal rights.
The only difference exists with regard to the sources of these rights:
personal rights arise out of one of the sources mentioned in Article 1370
C.C. (e.g. contracts, torts, quasi-contracts), where the source of a real right
is property: one becomes the debtor of a real right by becoming the owner
of the objects involved. In other words, the debtor of a real right is not
personally bound by the obligation created by the real right, but he is bound
qualitate qua. In this view, a right is recognised as a real right if it corresponds to a real obligation;11 this is an obligation which is related to the
property to which it applies and which is automatically and immediately
9
10
11
Cass. 22 April 1983, Arr. Cass. 1982-83, 1022, Pas. 1983, I, 944 and R.W. 1983-84,
427, note E. DIRIX.
S. GINOSSAR, Droit réel, propriété et créance, Paris, L.G.D.J., 1960, 212 p. His ideas
were adopted in Belgian literature by R. DEKKERS, “Du neuf sur les droit réels”, J.T.
1960, 697-698.
S. GINOSSAR, o.c., 112.
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Belgium
transferred by the transfer of this asset.12 The analysis by GINOSSAR was
further developed in France by ZENATI in 1981 in his thesis on the nature
of proprietary rights.13
However, the thesis by GINOSSAR has not been unanimously agreed
upon. The most fundamental criticism is that this author excludes the right
of property from the scope of real rights, whereas this has been traditionally regarded as the strongest and most eminent real right.14 In conclusion,
it has emerged that even after 200 years of doctrinal debate on the concept
of real rights, no agreement has been reached on the precise content of this
concept.
The discussion on the content of real rights can have practical implications as far as the extent of real rights is concerned. For example, the extent
of the right of easement is determined by the extent of the concept of real
rights in general. More generally, this theoretical framework is important
for the extent of the concept of real obligations. We will analyse this in the
following, beginning with the structure of an easement.
Belgian property law is to be found in the second book of the Belgian
Civil Code. This Code is historically based on the French Civil Code, as
Belgium was a French province in 1804. Except for the amendments which
have been made since 1804,15 Belgian property law is identical to French
property law.
It is generally considered that Belgian property law is determined by
the numerus clausus principle. It is, according to the general opinion, not
possible to create property rights which have not been recognized by the
legislator. This principle is not to be found in the Civil Code or in another
statutory provision. Article 543 C.C. provides that “one may have a right
of ownership, or a mere right of enjoyment, or only land services to be
claimed on property”.
However, this provision does not enumerate the property rights in an
exhaustive manner: first of all, superficies and emphyteusis are not mentioned, as these rights have only been re-introduced in the Acts of 10
12
13
14
15
For further developments on this concept V. SAGAERT, “Real rights and real obligations in Belgian and French law” in J. MILO and S. BARTELS (eds.), The content
of real rights, Ars notarius, Deventer, Kluwer Rechtswetenschappen, 2004, 47-70.
F. ZENATI, Essai sur la nature juridique de la propriété. Contribution à la théorie du droit
subjectif, Lyon, 1981. A summary of his findings was published in F. ZENATI, “Pour
une rénovation de la théorie de la propriété”, Rev. trim. dr. civ. 1903, 305-321.
L. RIGAUD, “A propos d’une renaissance du jus ad rem et d’un essai d’une classification nouvelle des droits patrimoniaux”, Rev. int. dr. comp. 1963, 557 et seq. See also
J. DABIN, “Une nouvelle définition du droit réel”, Rev. trim. dr. civ. 1962, 31 et seq.
The only major amendment which has been implemented, was the modernization
of the rules with regard to co-ownership.
203
January 1824. Moreover, real security rights and co-ownership have been
omitted in the enumeration. Although this principle is sometimes criticised
by academics,16 it has been determined by the Cour de Cassation that parties
cannot create real rights which have not been recognised by law.17
The foregoing does not mean however that party autonomy is excluded
in the field of property law. Parties are free to determine the content of property rights, as long as they respect the essential characteristics of these rights.
2.
Ownership and restricted real rights
2.1.
Notion of ownership
2.1.1. Definition and content
Article 544 of the Belgian Civil Code gives a classical definition of ownership, which has remained unamended since 1804: ownership is the right to
enjoy and dispose of property in the most absolute manner, provided one
does not exercise these rights in a way prohibited by statutes or regulations.
This definition makes the distinction between the right of ownership and
limited property rights: the right of ownership grants to the owner all powers in the property, except for those which have been transferred to third
parties or which have been prohibited by law.
It is false to assume that this definition intended to render the powers
of the owner absolute: Belgian legal scholars have demonstrated that the
absoluteness of ownership has been emphasized at the end of the 19th century, but did not inspire the legislator in 1804.18
Since the 20th century, the powers of the owner have been gradually
more restricted. The owner must take into account several restrictions from
16
17
18
J. HANSENNE, “La limitation du nombre des droits réels et le champ d’application
du concept de service foncier”, Revue critique de jurisprudence belge 1968, p. 181,
n° 13; A. KLUYSKENS, Zakenrecht, V, in Beginselen van Burgerlijk Recht, Antwerp,
Standaard, 1953, n° 44; F. LAURENT, Principes de droit civil, VI, Brussels, Bruylant,
1878, n° 84. In France: M. PLANIOL and G. RIPERT, Traité pratique de droit civil,
III, Paris, L.G.D.J., 1952, n° 48.
Cass. 16 September 1966, J.T. 1967, 59. Also: Cass. 17 October 1996, R.W. 1996-97,
1395, comment M.E. STORME; H. DE PAGE, I, n° 130; W. VAN GERVEN, Algemeen Deel, in Beginselen Belgisch Privaatrecht, Brussels, Story-Scientia, 1987, n° 34.
R. DERINE, De grenzen van het eigendomsrecht in de negentiende eeuw, Antwerp,
De Sikkel, 1955, 306. For a short summary: F. VAN NESTE, R. DERINE and H.
VANDENBERGHE, Zakenrecht, IA, in Beginselen van Belgisch Privaatrecht, Antwerp, Kluwer, 1974, n° 148 et seq.
Belgium
204
both private law and public law. A major private law restriction is the prohibition of abuse of rights, e.g. the owner cannot exercise his ownership in
a manner which is manifestly contrary to the manner in which a reasonable
owner would exercise his ownership in similar circumstances.19 Belgian case
law has gradually developed several specific criteria for determining abuse
of property rights, e.g.:
(i) the mere intention to cause damage to a third person,20
(ii) a manner which causes damage to third persons if the owner would
benefit to the same degree from another exercise that does not cause
any damage to third persons or to the general interest,21
(iii) in such way that the damage he causes is disproportionate in relation
to the benefit he gains,22
The other important restrictions on ownership exclusively deal with immovables (neighbourhood law, public servitudes), and will therefore not
be dealt with in this report.
2.1.2. Powers of the owner
The powers of the owner are generally distinguished according to the old
Roman law trilogy: he has the power to use the property (‘usus’), to take
the fruits (‘fructus’) and to dispose of the property (‘abusus’). Traditionally,
the power to dispose of one’s property is considered the essential power of
the owner. For instance, DE PAGE stressed that the right to dispose was
“l’attribut essentiel” (the essential characteristic) of ownership. Nowadays
however, one accepts that there are forms (and always more) of indisposable
ownership. We will analyze these forms more in detail infra, Part I, 2.1.3.
2.1.3. Transferability of movable property
In principle, the owner can freely dispose of his property. If he does, the
act of disposition automatically transfers the accessories of this property.
19
20
21
22
For a general overview: S. STIJNS and H. VUYE, “Tendances et réflexions en matière d’abus de droit en droit des biens” in J. KOKELENBERG, F. VAN NESTE, H.
VUYE and P. WÉRY (eds.), Eigendom – Proprieté, Bruges, Die Keure, 1996, 97-159.
For instance: Court of Appeal Ghent 27 January 1854, Pas. 1854, II, 233.
Cass. 16 November 1961, Pas. 1962, I, 332 and R.W. 1962-63, 1157.
Cass. 10 September 1971, Arr. Cass. 1972, 31, conclusion Att.-Gen. GANSHOF
VAN DER MEERSCH, Pas. 1972, I, 8 note W.G., R.C.J.B. 1976, 300, note P. VAN
OMMESLAGHE.
205
Article 1615 C.C. provides, with regard to sales agreements, that the obligation to deliver the goods includes its accessories and all that was destined
for its perpetual use.
There is property that is not transferable because it may not be the
object of a legal act, it is not in commerce.23 This is for instance the case
of public property destined for public use. Most specific statutes prohibiting
its transferability are based on considerations of health and public security,
such as the Drugs Act.24 Other examples are found in the financial branch.
The question whether parties can contractually exclude the transferability of property has been the object of debate for a long time. Initially, such
clauses were deemed to be invalid because they were considered contrary
to public order.25 The power to dispose was considered the essential power
of the owner. One of the main Belgian legal scholars of the 20th century
writes that the power to dispose is “l’attribut essentiel du droit de propriété”.26
An undisposable ownership was considered a contradictio in terminis.
This position was mainly explainable on a historical basis: during the feudal regime, many people gave gifts to religious institutions hoping for a
favourable destination after their death. However, the beneficiaries could
not dispose of these assets and they became immobilized in economic trade.
This was the so-called “dead hand”.27
However, since the 1950’s, most case law and legal scholars acknowledge
that these clauses can be valid if (i) they are restricted in time and (ii) they
serve a legal interest. The violation of such a clause has no proprietary effect:
suppose that A has made a gift of a painting to B with the stipulation that
the latter cannot dispose of the property for ten years, but B sells the painting
to C after two years. If C is in good faith (which is presumed), he cannot be
attacked by A, who will only have a contractual claim for damages against
B. A will, in that case, not be able to recover his painting. If C is in bad
faith – e.g. he knew or ought to know that he has acquired the painting in
violation of a contractual prohibition – he will be liable for the contractual
breach by B. This liability is, in the absence of a contract between A and C,
based upon tort law (Article 1382 C.C.). The main remedy in that case is
restitution in integrum, meaning the repossession of the painting by A.
23
24
25
26
27
Article 1598 C.C.
Act of 24 February 1921.
Still quite recently: Court of Appeal Ghent 22 May 1987, Pas. 1987, II, 175.
H. DE PAGE and R. DEKKERS, Traité élémentaire de droit civil. Principes – Doctrine –
Jurisprudence, V, Les principaux contrats usuels (Deuxième partie). Les biens (Première
partie), Brussels, Bruylant, 1975, n° 897.
For a more profound analysis: V. SAGAERT, “Nieuwe perspectieven op het eigendomsrecht na twee eeuwen Burgerlijk Wetboek” in B. TILLEMAN and P. LECOCQ
(eds.), Zakenrecht, Bruges, Die Keure, p. 48, n° 7.
Belgium
206
2.2.
Other property rights in movables
The main other property right in movables is usufruct, which is defined by
Article 578 C.C. as the right to enjoy property, of which another has ownership, in the same manner as the owner himself, but on condition that its
substance be preserved. So, the usufructuary has the right of “usus” and of
“fructus”, but he does not have the right to dispose of the property.
A derivative of that right is the right of use, which is dealt with in Articles 625 et seq. of the Belgian Civil Code. A person who has the use of the
fruits of a tenement may only demand what is necessary for his needs and
those of his family. He may demand them even for the needs of children
arrived since the granting of the use.28
The other property rights (superficies, emphyteusis, servitudes, right of
habitation) can only have immovables as their object. They will not be
dealt with in this report. Possession is generally not considered a property
right nor an obligatory right, but rather a legal fact, e.g. a fact to which the
law attributes legal effects.29
2.3.
Remedies for property rights
Property rights are protected by the proprietary action that is connected to
the property right. Every holder of a property right has the possibility to bring
a legal action if his property right is violated. The legal ground for that action
is to be found in the statutory provisions that recognize the property right.
The main property action related to ownership is the action of recovery
of property (‘revindication’). This remedy most frequently exists along side
another remedy, e.g. a contractual action or a tort claim. If for instance, the
owner has given his car in deposit to a friend, he has the choice to recover
his car by a contractual claim or to do so by the property claim (‘revindication’). The latter has the advantage that the claimant will not suffer the
consequences of an insolvency proceeding against the custodian. Moreover,
the property action can be exercised during 30 years30 while the contractual
claim is subject to a prescription period of ten years.31
An owner can also introduce an “actio negatoria” or an “actio confessoria”.
The former seeks to have a judge recognize that a third person has no rights
28
29
30
31
Article 630 C.C.
J. HANSENNE, Les biens: précis, I, Liège, Université de Liège. Faculté de droit,
1996, n° 143.
Article 2262 C.C.
Article 2262 bis C.C.
3. Possession
207
in the asset, the latter one seeks to have a judge recognize that a right in an
asset does exist.
3.
Possession
3.1.
3.1.1. Requirements
Article 2228 C.C. gives a definition of possession: Possession is the detention or enjoyment of property or of a right that we hold or exercise by
ourselves, or by another who holds and exercises it in our name. Possession
requires two essential elements, e.g. a corporeal element (“corpus”) and a
subjective element (“animus”).
– Corpus means that the possessor has the physical control of the asset.
This control must however not have been effected in a direct way,
indirect control is sufficient. For instance, if somebody has stolen a car
and leaves that car to a garage owner for reparation works, the thief
remains in possession. The garage holder is the detentor of the car while
he effects the reparation works. The thief remains possessor. This is
called “indirect possession” or “possessio animo suo, corpore alieno”. The
intermediary is, in that case, considered the detentor, he is not possessor as he does not meet the second, subjective element of possession.
The same reasoning applies if somebody is already in possession of e.g.
a coat and places this coat in the wardrobe of a restaurant: the possessor
remains in possession, the depositary is mere detentor. That is also the
case if a possessor leaves the coat in his car, which is parked 100 metres
away or forgets it in the restaurant (but will come back to collect it the
next day).
– The subjective element means that the possessor has also the intention
to exercise this physical control in his own interest, and not in the interest of the owner or a third party (“animus rem sibi habendi”). Belgian
law adheres, as French law, to the Savignan doctrine according to which
the animus domini is the main characteristic of possession.
– This subjective element, contrary to the corporeal element, cannot be
exercised indirectly: it must be assessed on behalf of the possessor himself. This subjective element is however, considered in an objective way:
nobody can exercise physical control in his own interest if he has, from
the beginning of his physical control, the obligation to make restitution
of his asset. If the contract giving him the physical control includes an
obligation to make restitution of the asset, he cannot be considered
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Belgium
a possessor. For instance, a lessee, an employee (using, for instance, a
company car), a depositary cannot be considered a possessor but only
a mere detentor. Their physical control can never result in acquisitive
prescription: as they are obliged to make restitution according to their
title, they cannot have the “animus rem sibi habendi”.
– This subjective element does not however require that the possessor be
in good faith. The possessor can be in bad faith, but nevertheless have
the intention to exercise physical control in his own interest, as is the
case for example of a thief. This possession in bad faith even has legal
effects as it can lead, after 30 years, to acquisitive prescription.
There are no gradual differences in the intensity of possession between
the initial possession and the continuation of possession. For instance, the
occupation of a res nullius requires the same intensity of physical control
as the possession of another’s property. The mere intention to occupy the
property is not sufficient.32 Originally, possession was only used with regard
to corporeal property. Nowadays however, it is recognized that possession
can also apply to mere rights.
Possession is also possible with regard to limited property rights. Somebody who exercises factually the powers of the holder of a limited property
right and who does so in his own interest has the possession of that property
right. This possession of mere rights is indirectly recognized by the Civil
Code in the provisions that set forth acquisitive prescription as means of
acquisition of limited property rights.33
However, possession of personal rights is not possible in the real sense
of the word: rather, possession exists in another sense, which is provided
by Article 1240 C.C.: “The payment, in good faith, to the possessor of a
receivable, is valid, even if the possessor is deprived of the possession”.
32
33
J. HANSENNE, Les biens, I, n° 176. The “occupatio” as means of original acquisition
of a res nullius is not generally recognized by the Civil Code. On the contrary, article
713 C.C. provides that property that has no owner belongs to the State. However,
this provision only applies to immovables (H. DE PAGE and R. DEKKERS, Traité
élémentaire de droit civil belge. Principes, doctrine, jurisprudence, VI, Les biens (Deuxième
partie), Les sûretés (Première partie), Brussels, Bruylant, 1953 p. 15, n° 10). The recognition of the occupatio as means of acquisition is found in article 715 C.C., which
provides that the right of fishing and hunting is determined in specific statutes.
With regard to servitudes, article 690 C.C. restricts acquisitive prescription to continuous and visible servitudes. Usufruct can be acquired by acquisitive prescription.
3. Possession
209
3.1.2. Distinction between possession and detention
Possession is to be distinguished from “detention”. Detention only requires
a physical element, but the detentor does not meet the subjective element;
he does not have the animus rem sibi habendi. The Civil Code provides for a
presumption in favour of possession: one is always presumed to possess in his
own interest, and in the capacity of an owner, where it is not proved that
one has begun by possessing for another.34 It is, from a procedural point of
view, up to the other party to prove that the controller of the asset, in this
case the detentor, does not have the “animus rem sibi habendi”.
The distinction between possession and detention is decisive from a
property viewpoint: detention can never result in acquisitive prescription.
The detentor cannot become the owner of the property over which he has
had physical control, not even after 100 years.
This does not mean however that Belgian property law does not recognize any legal effect of detention. A detentor can make use of a remedy that
protects his physical control, e.g. a so-called reintegranda.35 This is however
only possible with regard to immovables. The detention of movables is not
protected by specific actions.
3.2.
Possession has, according to Belgian law, three functions:
1. Acquisitive function of possession: possession can result in the acquisition of ownership or of a limited property right. This function applies in
cases of acquisition non a domino. This acquisition can be instantaneous if
the possessor is in good faith and the original owner has been voluntary
dispossessed. If the original owner has been involuntary dispossessed
and the possessor is in good faith, possession results in the acquisition
of property rights after three years following the dispossession (Article
2279 C.C.). This rule is applied in Article 1138 C.C., which provides
the acquisition rules in case of conflicting transfers: if A transfers the
same property subsequently to B and C, the first one of the acquirers
who takes possession of the property in good faith will prevail. If this is
C, C will prevail even if his title is of a later date than that of B.
Even in case of bad faith, acquisitive prescription will result in the
acquisition of the property, but in that case the term for acquisitive
prescription will be determined at 30 years.
34
35
Article 2230 C.C.
Article 1370 Judicial Code.
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210
2. Possession is a means of proof: the person who has possession of a movable is presumed to be its owner. That is the other aspect (besides acquisition) of “possession gives title” (Article 2279 C.C.). It is up to the
other party to prove the contrary. Possession has thus the function of a
legal presumption.
3. Remedies of possession: the possessors of immovables are protected
by specific remedies, e.g. a complainte and a reïntegranda. Possession of
movables is not protected by specific actions. For that reason, we will
not go into further detail on those remedies.
3.3.
The contractual transfer of an existing possession generally requires the
transfer of both aspects of possession, e.g. of both the “corpus” and the
“animus”.36 So, the transfer of possession is not a consensual agreement
(as agreements generally are in Belgian law), but a real agreement, this
means that traditio is normally required in order to constitute the transfer
of ownership. Moreover, a real transfer of “animus rem sibi habendi” is not
possible. The acquirer will only have the possibility to continue the possession of his predecessor if he himself meets the requirement of “animus
rem sibi habendi”.37 However, the transfer of the corpus can be effected in a
more symbolic way, e.g. by handing over the key of the building or the title
(tradition per instrumentum).38
Belgian law recognizes three forms of consensual transfer of possession
in which the mere consensus effects the transfer of possession:
– Traditio brevi manu: the detentor gets possession of the property he holds
in detention. For instance, a thief of a car gives his car in deposit to a
friend, and subsequently sells the car to that same friend. Or: a leased
house is sold to the lessee. In the former example, the friend, who already had the physical control of the car, will become possessor by the
mere sales agreement without any physical change in the situation being necessary.
– Constitutum possessorium: this is the inverse of the traditio brevi manu:
someone is possessor, but he transfers the possession to a third party,
reserving however the detention of the asset. A frequent example, in
the framework of estate planning, is the following: A is possessor of a
movable object and gifts this object to a third party, reserving however
36
37
38
J. HANSENNE, Les biens, I, n° 177.
Cass. 2 June 1989, Arr. Cass. 1988-89, 1166.
211
the usufruct of this asset. A was possessor, but becomes mere detentor
of the asset, possession has passed to the beneficiary.
– The last exception is the so-called traditio longa manu: a possessor of
an asset (A) gives detention of this asset to B, who is obliged to make
restitution. During this detention, however, A passes possession of the
asset to C. C become possessor by the mere sales agreement, without
any change in the physical control of the asset.
3.4.
There are specific protection measures with regard to possession of immovables. The possessors of immovables are protected by specific remedies,
e.g. a complainte and a reïntegranda. Possession of movables is not protected
by specific actions. For that reason, we will not go into further detail on
those remedies.
3.5.
Self-help
Any form of self-help is normally excluded in Belgian law. One can only
obtain legal protection by judiciary means. The only cases in which the law
of obligations allows a possessor to use methods of self-help is in case of the
exceptio non adimpleti contractus and the right of retention. These can allow
the possessor of an asset to keep that asset until the person who is entitled
to it has complied with the obligation that has a legal or physical link to
the property. However, these methods of self-help can rarely be used by a
possessor and will most often be used by a detentor: the asset is the object
of an obligation to make restitution, which precisely involves detentio.
4.
Property and obligatory rights to hold, use or acquire
4.1.
Rights to use movables
4.1.1. Obligatory rights: loan, lease and lease-purchase
(a)
Generalities
The lease and loan (bruikleen) of movables (as well as the lease of land) are
contracts conferring rights to use property. According to Belgian law, the
lease (also termed “rent”) of a movable or an immovable necessarily implies
that a price (usually but not necessarily in money) is paid in return for the
212
Belgium
use of the property. A contract conferring a right to use property for free is
named a “loan” (bruikleen).39
A lease-purchase contract is a credit contract by which the creditor
(leasing-disposer)40 transfers the use of property to the leasing-taker in exchange for the payment of a periodical sum by the lessee, with the option
for the leasing-taker to acquire the ownership of the property at the end of
the lease-purchase contract.41
The rights conferred by the contracts of loan, lease and lease-purchase
are always considered personal rights irrespective of the duration of the
contract.
The contracts of lease and lease-purchase come into existence solely by
the consent of the parties. However, a contract of lease that has not been
performed in any way (by e.g. transmission of the key or payment of the
rent for the first term), cannot be proven by witnesses or presumptions,
unless the writing has been lost by force majeure, one is bringing an action
against a merchant, or only the conditions of the contract are disputed but
not its existence.42
The contract of loan only comes into existence by the delivery of the
object of the loan. It is therefore qualified as a “real” contract. Nevertheless, a contract containing an accepted promise to conclude a contract of
loan (concluded before the transmission of the object of the loan) is also
binding; although, it cannot be qualified as a loan per se because, for a loan,
delivery is indispensable. The use of the distinction between the contract
containing an accepted promise of a loan or a loan and the real contract of
loan is doubted by certain legal scholars.43
39
40
41
42
43
The term “loan” here is not to be confused with the same term that includes a
financial obligation. There is no financial obligation in this case; quite the contrary,
here ‘loan’ means to provide someone something for free, such as ‘to loan a book
to a friend’. Belgian law also has a contract of “verbruikleen” which differs from the
contract of “bruikleen” in that the contract of “verbruikleen” concerns consumables,
of which ownership is transferred to the loaner, which is not the case for “bruikleen”.
At the end of the contract of “verbruikleen”, the usor does not have to return the
goods he has received in “bruikleen”, but an equal amount of goods of the same
type (See B. TILLEMAN and A. VERBEKE, Bijzondere overeenkomsten in kort bestek,
Antwerp, Intersentia, 2005, n° 783 et seq., p. 214 et seq.).
In Belgium the term “lessor” is often used to indicate the leasing-disposer, the term
“lessee” to indicate the leasing-taker. However, in this paper, the terms “lessor” and
“lessee” are reserved for the indication of the parties to a contract of rent (lease).
B. TILLEMAN and A. VERBEKE, o.c., n° 799, p. 219.
B. TILLEMAN and A. VERBEKE, o.c., n° 515 et seq., p. 141-142.
(b)
“Obligatory” protection of the user’s possession
(i)
The relationship between the contracting parties
213
– Delivery
On the basis of Articles 1719 and 1720 C.C. the lessor is obliged to deliver
the rented property in good condition. Correlatively, the lessee has a claim
against the lessor for delivery in good condition.
The lender has no duty to deliver the property pursuant to the coming
into existence of the agreement as the contract of loan only comes into
existence through the delivery of the property.
– Peaceful use: guarantee for acts of the lessor
The lessee’s peaceful use of the rented property is protected by contractual
rights (Article 1719, 3° C.C.); this implies that the lessor must, during the
time of the rent, abstain from every material or legal act disturbing the lessee’s use of the rented property.
The lender has the obligation to surrender the possession of the property
to the borrower during the stipulated time or, if no time has been stipulated,
until it has served for the purpose for which it has been lent (Article 1888
C.C.). Because of the gratuitous character of the loan, the law accepts that
the lender’s interests may in certain cases prevail over those of the borrower. If the lender needs his property urgently and unforeseen, the judge
can, depending on the circumstances, oblige the borrower to return the
property (Article 1889 C.C.) before the “normal” duration of the contract
has come to an end.
– Peaceful use: guarantee for legal claims of third parties
The lessor has to guarantee the lessee against legal claims from third parties. If the lessee is disturbed by a legal claim concerning ownership of the
property, he is entitled to a proportionate reduction of the rent, if he has
informed the lessor of the disturbance.44
If third parties, who have committed factual acts, claim to have any
right to the property, the lessee has to call the lessor in guarantee, and if he
wishes so, the lessor can exonerated, if he names the lessor.45
In contrast to the lessor, the lender is not obliged to guarantee the borrower for legal disturbances by third parties. The borrower that is disturbed
44
45
Article 1726 C.C.
Article 1727 C.C.
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214
by third parties will have to act himself to defend his possession. However,
it is accepted that he can act in this respect in the name of the lender and
file the claims which are at the service of the lender: he can as such revindicate the loaned property from a third party.46
(ii)
The relationship with third parties
The lessee / borrower also has the possibility to claim compensation for damages he has suffered if his peaceful use of the property, the object of the
contract of lease / loan, has been factually disturbed by third parties (extracontractual liability based on the Articles 1382 et seq. C.C.). This claim is
a claim in personam.
Moreover, the lessee and borrower enjoy a provisional protection of
their possession on the basis of Article 2279 C.C. (cf. infra, Part III, 18).
This is a protection of a real nature.
4.1.2. Property rights: usufruct and the right of use
Usufruct is a real47 and temporary right to use another’s property and to
enjoy it as an owner, but under the obligation to maintain the property.48
It will ultimately end by the death of the usufructor.49 Usufruct conferred
on legal persons lasts at most for 30 years.50
Usufruct can be conferred by law, by the will of persons (will or contract)51 and by prescription.52 Usufruct of movables is protected by the following actions:
(a) the action in recognition of usufruct – with this action the usufructor
will demand others to recognize his usufruct; it is, in fact, the revindication of the usufruct.
(b) the action in repartition of the fruits. the action based on Article 1382
et seq. C.C. in defence against factual disturbances by third persons.53
46
47
48
49
50
51
52
B. TILLEMAN and A. VERBEKE, o.c., p. 213, n° 780.
Usufruct of a movable is a movable real right; usufruct of an immovable is an immovable real right (Article 526 C.C.).
Article 578 C.C; R. DEKKERS and E. DIRIX, Handboek burgerlijkrecht, II, Zakenrecht, zekerheden, verjaring, Antwerp, Intersentia, 2005, n° 451, p. 181. Comp. J.
HANSENNE, Les biens, II, n° 997, p. 1019.
Article 617 C.C.
Article 619 C.C.; R. DEKKERS and E. DIRIX, o.c., n° 594, p. 235-236.
Article 579 C.C.
R. DEKKERS and E. DIRIX, o.c., n° 463, p. 186.
215
The “right of use” is also a real right on the basis of which the holder can
use another’s property and collect the fruits for his own needs and those of
his relatives.54 It differs from usufruct in that the usufructor has the right to
rent the object of his usufruct and to enjoy the rent; the user only has the
right to personally use the object of his right.
The actions protecting the right of use are mutatis mutandis, the same
as those protecting usufruct.
53
4.2.
The right to hold movables
4.2.1. Obligatory rights: the contract of deposit
The contract of deposit is a real contract that only comes into existence by
the transmission of the property.55 The rights created by this contract are
obligatory rights. The depositary has the obligation to preserve the property, he has no right to use the property, unless the depositor has explicitly
or implicitly given him that right. In the case that the depositary has been
given a right to use the property, it is difficult to distinguish deposit from
rent and loan.56
The object of the contract, the preservation of the property, implies that
the depositary has not only the right to hold the property that forms the
object of the contract, he has the obligation to guard it. He has however
only a provisional protection of his possession on the basis of Article 2279
C.C. (cf. infra, Part III, 18).
4.2.2. Property rights: pledge
Pledge is a real contract by which a debtor transfers property to his creditor to secure the payment of his debt (Article 2071 C.C.). A distinction
is made between civil pledge (which secures a civil debt) and commercial
pledge (which secures a commercial debt).
As pledge is a contract, it gives rise to obligatory rights. However, pledge
also gives rise to property rights.57 The pledgee possesses a property right of
possession (protected by Article 2279 applied mutatis mutandis).58 It confers
53
54
55
56
57
58
Comp. R. DEKKERS and E. DIRIX, o.c., n° 539, p. 214-215
Comp. Article 630 C.C.
Article 1919 C.C.
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216
on the pledge-holding creditor a privilege (Article 2073 C.C. – Article 20,
3° Mortgage Act); at least if the main debt is a civil debt that surmounts
375 Euros and the pledge is formalized in an authenticated or registered
document (Article 2074 C.C. – Article 2084 C.C., Article 11 Law on Commercial pledge).
(a)
Civil pledge
The pledge-holding creditor has the obligation to preserve and to return
the property. In his relation to the debtor, the pledge-holding creditor is a
mere detentor. In his relation to third parties, he is the possessor of a property right, the right of pledge. The pledge-holding creditor who has legally
acquired his pledge and who is in good faith, is protected by Article 2279
C.C. for the time of the pledge.59 He may not use the property (Article 2079
C.C.) and as a rule certainly not sell or pledge it, not even if the debtor fails
to pay his debt, unless he first receives permission of the court.
Clauses that allow the pledge holding-creditor to sell the good without
judicial permission are void. However, according to certain scholars, parties
can, once the debt has become actionable, agree to transfer the pledged
property to the pledge-holding creditor.60
Special rules exist if the pledge consists of financial instruments. If an
action was pledged, the pledge-holding creditor may as a rule not receive
payment of the capital. He may however receive the interests if he brings
them into account on the main debt. If shares are pledged and they enjoy
a right of subscription to new shares, the pledge-holding creditor may not
exercise this right nor transfer it.
Parties may however deviate from these rules.61 They can even stipulate
that the pledged property passes to the pledge-holding creditor in case the
debtor fails to pay his debt on time, at least if the rules are determined following which the transfer occurs, especially those concerning the determination of the value of the financial instruments.62 According to a certain
opinion, such an agreement can only be validly made in the contract of
pledge. It would not be valid if it were concluded after the debt has become
actionable.63
59
60
61
62
R. DEKKERS and E. DIRIX, o.c., n° 916, p. 378-379.
R. DEKKERS and E. DIRIX, o.c., n° 929, p. 383; R. DE CORTE and E. DIRIX,
Zekerheidsrechten, in Beginselen van Belgisch Privaatrecht, Antwerp, Story-Scientia,
1999, n° 456, p. 303.
Article 8 § 2 Law 15 December 2004 concerning financial securities, Belgian Official
Gazette 1 February 2005.
(b)63
217
Commercial pledge
Several types of commercial pledge exist: the common commercial pledge,
pledge on a business, warrant, pledge on an invoice, the original deposit
and the pledge of the commissionair or his creditor.
The pledge-holding creditor of a common commercial pledge may not
only receive the interest, but also the capital, on condition he brings it into
account on the main debt (Article 3 Com. C.).
Further differences between civil and commercial pledge concern the
creation of the pledge, the persons able to hold the pledge, and the judge
from whom permission to sell or acquire the pledged property is to be demanded.
4.3.
The right to acquire movables
4.3.1. Right of pre-emption
A contract that confers on the beneficiary a right of preemption, in the
sense that the owner of the property assumes an obligation to sell the property to the beneficiary if he ever decides to sell it and the beneficiary is
prepared to pay the price demanded by the owner or offered by a third
party, is a purely obligatory contract. It has no influence on the status of
the property as far as real rights to it are concerned.
4.3.2. Option to buy
A right of pre-emption differs from an option to buy. If A conveys to B an
option to buy, he 1) assumes an obligation not to sell the property on which
the option rests to a third party and 2) conveys to B the right to acquire
such property by his own unilateral act. B only needs to exercise the option
to conclude the contract of sale and to realise the transfer of the property. A
new declaration of intention by the owner is not necessary, which does not
however exclude the possibility of the parties to formalizing the negotium
of their sale into a written document, the instrumentum of the sale signed
by both parties.
The classical opinion in Belgian law analyses the option as a purely
obligatory right. Opinions diverge as to the content of the obligation. Ac-
63
H. SEELDRAYERS and V. SAGAERT, “De Wet financiële zekerheden”, R.W. 200405, n° 41, p. 1532-1533.
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218
cording to a first opinion, it concerns an obligation to do;64 according to a
second opinion, it concerns an obligation to abstain in the sense that the
promisor may not do anything that is incompatible with the promise; and
according to a third opinion, it concerns an obligation to do (to maintain
the offer) and to abstain from hindering the sale (at the moment of the
execution of the option).65
In our opinion, the option is to be analysed as a power, a right of will
(wilsrecht) combined with an obligation not to sell the property on which
the option is given to a third party during the time for which the option
is given.
The right of will differs from an obligation in the respect that it gives its
beneficiary the power to realise a legal effect without further intervention
of the debtor, while the obligation is a right to demand the debtor give, do
or abstain from doing, something.
4.3.3. Right of repurchase
(a)
Generalities
A clause of repurchase in a contract of sale confers on the seller the right
to repurchase the property, within a certain time, against payment of the
price and the accessories (Article 1659 C.C.).
If the beneficiary uses his right of repurchase, the original contract of
sale is resolved. In contrast with what the phrase “right of repurchase”
suggests, there is thus no second contract for re-sale. A contract of sale
containing a clause of repurchase is in fact a sale under resolutive condition.66 The clause of repurchase confers on the seller not only an obligatory
right against the buyer; it also confers on him a property right against third
acquirers.67
The clause of repurchase is to be distinguished from a contract that
confers on the seller a right of preemption in two respects.
64
65
66
67
A. KLUYSKENS, De Contracten, in Beginselen van Burgerlijk Recht, Antwerp,
Standaard, 1952, n° 13, p. 18-19; Court of Appeal Liège 24 April 1986, Pas. 1986,
II, 115.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, Traité élémentaire de droit civil
belge, IV / 1, Brussels, Bruylant, 1997, n° 283, p. 376.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 378, p. 449; B. TILLEMAN and A. VERBEKE, o.c., n° 338, p. 87. On the consequences of the fulfilment
of a resolutive condition, see also Part IV, 21.2.
B. TILLEMAN and A. VERBEKE, Bijzondere overeenkomsten in kort bestek, n° 339,
p. 87.
219
1) The right of pre-emption only confers on the beneficiary a right
to buy if the original buyer decides to sell. The beneficiary of a right of
pre-emption cannot force the other party to sell if he does not want to. A
clause of repurchase offers the original seller, within the limit defined in
the clause, the power to resolve the sale if he (the original seller) wishes
to do so. The original seller can thus impose the resolution on the original
buyer, even against his will.
2) The right of preemption is also a purely obligatory right, while the
nature of the right of repurchase is disputed. According to a first opinion,
the beneficiary of a right of repurchase is an owner under a suspensive
condition; his right has thus the nature of a property right.68 According
to a second opinion, the beneficiary of a right of repurchase only has an
obligatory right.69 In our opinion, the beneficiary of the right of repurchase
has neither a pure right in rem, nor a purely obligatory right, but a power
(a right of will) to modify the status of the property as to its ownership by
a unilateral declaration, and to end the ownership of the buyer and retake
it himself ex tunc, i.e. as if the contract of sale containing the clause of
repurchase would never have been concluded.
(b)
Conditions
The right of repurchase has to be stipulated in the contract itself. If the parties to the original contract later agree to confer the original seller a power
to re-acquire the property against repayment of the price, this agreement is
to be analysed as a contract conferring the original seller an option to buy.70
The right of repurchase can only be exercised during the time stipulated
in the clause of repurchase. This time may not be longer than five years
(Article 1660 C.C.). If a longer term is stipulated in the contract, it will
be reduced to five years. This is the case because the legislator wants to
limit the time during which the original buyer and his possible successors
are insecure in their ownership. The five-year period cannot be prolonged
by interruption or suspension of the period of prescription. Also the courts
cannot prolong the five-year period, not even by giving the original seller
a period of grace.71
The execution of the right of repurchase should imply the obligation
that the original seller returns to the original buyer the price and the ac68
69
70
71
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 393, p. 466-467.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 385, p. 457-458; B.
TILLEMAN and A. VERBEKE, o.c., n° 340, p. 87.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 378, p. 452.
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220
cessories.72 Exceptionally, it is to be stipulated that the original seller has to
pay an additional sum and certain judicial decisions have considered this
practice valid. This can be explained by the theory of autonomy of will.
It is possible and legally acceptable that a buyer only wants to contract a
sale containing a right of repurchase if he will receive an additional sum in
case the seller exercises his right of repurchase. However, when the clause
concerning the payment of an additional sum does not rest on objective
grounds, or when it hides a usurious loan, the contract no longer constitutes
a valid contract of sale containing a right of repurchase.73
(c)
Situation pendente conditione
While the seller enjoys the right of repurchase, the buyer is the owner of
the property. He has to carry its charges and he can transfer his rights in the
property; he can mortgage it and burden it with property rights.74
(d)
Execution of the right of repurchase
The original seller who enjoys a right of repurchase can, within the limits
set out by the contract and the time limit set out by the law, exercise his
right of repurchase by expressing his intention to do so.75
If the original buyer still possesses the property at the moment when
the right of repurchase is exercised, the original seller evidently has to address his declaration of repurchase to this person (the original buyer); it is
of course also from him that he has to demand the traditio (or re-ditio) of
the property. If the original buyer has already transferred the property to a
third person, the original seller can in conformity with Article 1664 C.C.
exercise his right of repurchase against this third person, even if the right of
repurchase has not been mentioned in the third person’s contract of sale.76
However, concerning movables, this rule will often be rendered a nullity by the protection Article 2279 C.C. offers to the third-party acquirer
a non domino in good faith.
The seller’s declaration of intention does not have to meet formal requirements to be valid. The seller should, however, be able to prove that he
72
73
74
75
76
Article 1673 C.C.
Article 1665 C.C.; B. TILLEMAN and A. VERBEKE, o.c., n° 343, p. 88.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 386, p. 459-460; B.
TILLEMAN and A. VERBEKE, o.c., n° 344, p. 88.
B. TILLEMAN and A. VERBEKE, o.c., n° 346, p. 88-89.
221
has exercised his right of repurchase as well as the date on which he did so.
He can achieve this result by having his declaration of intention serviced
on the seller by bailiff.77
(e)
Situation of the parties after repurchase
As a result of the exercise of the right of repurchase, the seller retakes the
property ex tunc, as if the contract of sale containing the right of repurchase
were never concluded. From the moment the declaration of repurchase
takes effect, the risk passes ex nunc from the original buyer to the original
seller. Concerning the risk there is, thus, no retroactivity.78
The original buyer becomes the creditor of the original seller for the
reimbursement of the price and the accessories.79 The original seller has to
respect the contracts of rent the original buyer has concluded without fraud
(Article 1673 C.C.).
4.4.
Contracts under a suspensive time limit
A major distinction is to be made between the case in which only the delivery is subject to a suspensive condition and the case in which the transfer
of ownership of the property is subject to a suspensive condition.
If only the delivery is subject to a suspensive condition, property passes
according to the normal rules for the concerned contract.80
If the transfer of the ownership of the property is subject to a suspensive
condition, ownership only passes at the moment the condition is fulfilled;
this constitutes an exception to the normal rules on conditional contracts
according to which the conditional rights (obligations) exist from the moment of the conclusion of the contract, but will only be due at the moment
of the fulfilment of the condition.
77
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 387, p. 461; B. TILLEMAN and A. VERBEKE, o.c., n° 344, p. 88.
78
79
80
Article 1182 C.C.; H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 394,
p. 468.
W. VAN GERVEN and S. COVEMAEKER, Verbintenissenrecht, Leuven, Acco, 2001,
318.
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222
5.
General scope and content of the rules on
transfer of movables
As far as the transfer between the parties is concerned, the rules are the same
for all transfers, whatever may be the nature of their object. Movables and
immovables, tangibles and intangibles are all principally subject to the rule
of transfer by mere agreement between the parties (transfer solo consensu).
As far as the opposability to third parties is concerned, there are, according to Belgian law, different rules for immovables, movables and receivables.
– Immovables are subject to a system of registration, which is provided by
Article 1 Mortgage Act of 16 December 1851.81
– Movables are subject to a consensual system between the parties, but
possession has a major role in relation to third parties. This system will
be elaborated in more detail in Part II, 9.
– The opposability of the transfer of receivables is subject to Article 1690
et seq. C.C. These provisions have been amended by the Act of 6 June
1994. Before this Act, a basic distinction was made between the effectiveness of the agreement between the parties and the effectiveness of
the agreement in relation to third parties. Between the parties, consensus was the basic idea, but the effectiveness against third parties required
a notification to the debtor of the receivable or acceptance in a notarial
deed by the debtor. Since this amendment, effectiveness against third
parties is also ensured by the mere agreement of transfer. However, some
third parties, which are expressly enumerated in Article 1690 § 2-4, are
especially protected, e.g. the debtor, third parties with competing rights
(other assignees, pledge-holding creditors) and creditors of the assignor.
The assignment is only effective in relation to those specific third parties after notification of the assignment to the debtor.
The system which will be dealt with, covers the transfer of movables, with
the exclusion of the assignment of receivables. It is often alleged that the
possessory protection of Article 2279 C.C. only applies to corporeal movables (cf. infra, Part III, 18). Hence, receivables, intellectual or industrial
property rights, etc. would not fall under Article 2279 C.C.82
Immovables are also excluded. For instance: the manuscript of a book is
subject to Article 2279 Civil Code, but not the monopoly to commercialize
the manuscript.83
However, restricted property rights are dealt with in the same way and
are likewise protected. For instance, the pledgee is protected in his posses81
82
83
Belgian Official Gazette 22 December 1851.
Court of Appeal Brussels 11 February 1964, Pas. 1965, II, 74.
5. General scope and content of the rules on transfer of movables
223
sion if he could believe in good faith that the pledgor was the owner of the
property of the pledge. Thus, the pledgee will be in that case
– possessor of the right of pledge: he has acquired non a domino, but nevertheless is entitled to appeal to Article 2279 C.C. The right of pledge
as such is included in the scope of article 2279 C.C. This is true for
all limited property rights. The argument that personal rights should
also be included in Article 2279 C.C., as it is argued by French legal
scholars,84 has not been made in Belgian legal literature so far.
– detentor of the pledged property: the nature of the pledge agreement
includes an obligation to make restitution of the pledged property after
full payment of the guaranteed obligation.
The question whether company shares fall under this provision, depends
upon the nature of the shares. If the shares are registered in the register of
the issuing company, the transfer of the shares and the vesting of property
rights are subject to the same regime as that of receivables. Notification to
the debtor is effected by declaration to the issuing company, which registers
the declaration in its register.85
The system of transfer of “bearer shares” is subject to the same regime
as corporeal movable property, and to the possessory protection of movable corporeal property.86 The entitlement to the shares coincides with the
physical control of the shares. The rights are incorporated in the instrument. Only the detentor / possessor can exercise the rights incorporated in
the shares. Also the protection of possession applies to these assets. The
same applies to all negotiable instruments (bonds, obligations, warrants,
etc.). However, it must be taken into account that, pursuant to company
legislation, bearer shares will be eliminated from legal trade by 2015.
Animals are considered, according to Belgian law, corporeal movable
assets which can be the object of patrimonial transactions. However, the
legislator has put some restrictions on the transferability of animals.87 For
instance, it is prohibited to transfer animals by way of a gift to a minor
person without the consent of the person exercising parental authority
over him.88 However, animals are – even in principle movable – often immobilized by destination.
84
85
86
87
88
A. PELISSIER, Possession et meubles incorporels, Paris, Dalloz, 2001, 373 p.
Article 504 Company Act.
J. HANSENNE, Les biens, I, n° 229; Court of Appeal of Brussels 13 July 1953, Rev.
prat. soc. 1954, 246; Com. Namur 14 July 1977, R.R.D. 1978, 615.
See for more details: P. LECOCQ, V. SAGAERT and B. VANBRABANT, “La
notion de biens”, in Rapports Belges au Congrès de l’Académie Internationale de Droit
comparé à Utrecht, Brussels, Bruylant, 2006.
Article 12 of the Act of 14 August 1986, Belgian Official Gazette 3 December 1986.
224
Belgium
Money is an obligatory instrument of payment. Money can never be the
object of vindication out of the hands of a possessor in good faith, not even
if it can be identified.89 This provision was introduced into Belgian law in
1953, in order to protect the possessor of money who has not had the possibility of refusing the money as a payment method. Even if this provision
had not been introduced, the vindication of money would be extremely
exceptional in legal practice given the fluidity of money, which immediately
commingles and becomes unidentifiable.
With regard to energy, a distinction must be made. The Belgian Cour
de cassation ruled that it is possible to subtract electricity in order to occupy
it privately. Hence, theft of electricity is possible.90 It tends to qualify as
corporeal movable property.91
With regard to the transfer of electricity, it is most often dealt with as
generic goods, which are only transferred at the moment of specification.
Legal practice has elaborated the sales of an account, indicating the amount
of electricity that is transferred.92 This view is founded in some international instruments. For instance, the Vienna Convention expressly excludes
electricity from its scope, but this exception may be based on a misconception about the nature of electricity.93 Moreover, electricity is goods in the
sense of Article 28 of the Rome Treaty.94 The new regime in the Belgian
Civil Code on consumer sales expressly excludes the sale of electricity, gas
and water if they are not contained in a fixed volume or quantity.95
Even if the main distinction remains the one between movables and
immovables,96 there is a specific category of registered movables. These are
movable objects whose transfer and vesting of property rights is subject to
registration. They are for transfer purposes subject to the regime on immovables. The regime of Article 2279 C.C. is inapplicable to those assets.
We can refer to Part II, 9.6 for a more detailed analysis of this category.
89
90
91
92
93
94
95
96
Article 2279, § 3 C.C. This provision applies to notes, but it is not sure that coins
are subject to this provision.
Cass. 23 September 1981, Rev. dr. pén. 1982, 261.
A. CARETTE, Herstel van en vergoeding voor aantasting aan niet-toegeëigende milieubestanddelen, Antwerp, Intersentia, 1997, n° 7; P. LECOCQ, V. SAGAERT and B.
VANBRABANT, l.c., n° 12.
See on this point: R.P.D.B., Compl., IV, Bruylant, Bruxelles, 1972, v° Energie électrique et gaz, esp. n° 450.
See Ph. KAHN, “Introduction générale: qu’est-ce que la vente?” R.D.A.I. 2001,
n° 3 / 4, p. 241 et seq., spec. pp. 243 and 244, Rapport introductif du 50ème séminaire
CDVA on the theme “Droit et pratique de la vente internationale”.
See European Court of Justice, 13 March 2001, (Preussen Electra, C-379 / 98).
Article 1649bis C.C., § 2, 3°.
Contrary to Dutch law, where the distinction is made between registered and nonregistered assets.
Part II:
Transfer of ownership directly from the owner
to the transferee: “derivative” acquisition
6.
The system of transfer of movables in Belgian law
6.1.
Basic characteristics and overview97
Belgian law has, from a theoretical point of view, a uniform concept of the
transfer of ownership. Ownership passes from the transferor to the transferee at one moment in time. This emerges from Article 1138 C.C.: the
obligation to give (“dare”) is perfected from the moment that the parties
have reached a consensus. In other words: ownership passes by the mere
agreement between the parties. The obligation to give something (“dare”)
normally is fulfilled from the moment that it comes into existence. Belgian
law has a consensual transfer of ownership. For a more detailed analysis of
this rule: infra, Part II, 9.
However, article 1138 C.C. and its applications only look to the internal relationship between the transferor and the transferee. For the opposability against third parties, the taking of possession by the transferee
is necessary in order “to perfect” the transfer. We refer to Part II, 9.4 for a
more detailed analysis.
The rule of the consensual transfer of ownership (and its mitigations)
applies to all kinds of obligations. It also applies to the transfer of ownership
by a unilateral promise.98
The automatic transfer is also valid in cases of succession: ownership
passes by the mere death of the person from the decuius to his heirs. The
latter can opt for the rejection or the acceptance of the succession, and the
exercise of this option has retroactive effects. The beneficiary of a legacy
also becomes automatically the owner of the object of the legacy, but if it
concerns a specific legacy, he has an action in order to take possession of
the legacy.
97
98
For an in depth analysis: V. SAGAERT, “Consensus versus delivery systems. Consensus about tradition?”, in W. FABER en B. LURGER (eds.), Rules for the transfer
of movables. A candidate for European harmonization or national reforms?, München,
Sellier, 2008, 9-46.
For a more detailed analysis: cf. infra, Part II, 6.3.2.
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226
The transfer in Belgian law is based on a causal system. It is necessary
that a valid obligation is underlying the transfer of ownership in order to
effect this transfer. For details on the requirement for a valid obligation
underlying a transfer of ownership, we can refer to Part II, 7.
There are not, according to the majority opinion, two separate agreements independent from one another: an obligatory agreement and a real
agreement. Rather, there is one single agreement, which must meet all
validity requirements in order to effect the transfer of the property right.
The concept of a real agreement is used in another sense, for which we can
refer to Part II, 9.5.4.
The consensual nature of the transfer system also includes that payment
is not a requirement for the passing of property rights. (For the consensual
nature of the transfer system, we can refer to section 4.) Except if parties
have agreed otherwise, ownership is immediately transferred, for instance,
in a sales agreement, from the moment that parties have agreed upon the
object of the sale and the sales price. The moment of payment is irrelevant,
unless parties have provided otherwise (see Part II, 9.7).
6.2.
General issues
We can refer to Part II, 9.2.1 a for a detailed analysis on the transfer of
ownership with regard to generic goods. The role of party autonomy will
also come into play in the subsequent chapters.
6.3.
Means to acquire ownership
Article 711 C.C. stipulates that ownership of property is acquired and
transferred by succession, donation inter vivos or by will, and by the force
of obligations. Article 712 C.C. adds that ownership is also acquired by
accessio or incorporation and by prescription. A rare type of acquisition
of ownership that is also recognised by the Civil Code is treasure finding
(Article 716 C.C.).
The right to objects thrown into the sea, objects washed ashore by the
sea and plants and spices growing alongside the shores are dealt with by
special laws. The same is true for lost objects (Article 717 C.C.) and for
right to hunt and to fish (Article 715 C.C.).
Some objects do not belong to anyone and are for general use, for example, the fish in the sea and the water in the rivers. The enjoyment thereof
is regulated by police laws. Objects that have no owner belong to the State
(Article 713 C.C.).
Article 711 C.C. mentions the most common derivative means to ac-
227
quire ownership, the means by which one person can transfer his ownership
to another person. This is dealt with in Part II of this report.
Articles 712 and 716 C.C. mention the most common original means
to acquire property and the means by which a person can acquire ownership although it has not been transferred to him by another person. Finding
objects can also be an original means to acquire ownership. Original means
of acquiring ownership are dealt with in Part III of this report. The other
means to acquire ownership that are dealt with in Articles 712, 715 and
717 C.C. will not be further elaborated.
6.3.1. Contracts
The most common way to transfer ownership is the contract of sale: a contract by which one party, the seller, obliges himself to transfer to another
property against payment of a price in money. If the price is not paid in money but consists of other property, we are dealing with a contract of barter.
Property may also pass on the basis of a contract of enterprise. A contract
of enterprise is a contract by which one party, the entrepreneur (contractor), undertakes to perform independently certain work or service for another
person, the principal. If the entrepreneur constructs exclusively with his own
materials on the grounds of the principal, the constructed property passes to
the principal by way of accession. Some authors defer the passing of ownership until the moment of the acceptance of the works by the principal.99
Further, the contract of annuity has to be mentioned. This is a contract by which one party (the debtor) obliges himself to pay periodically a
certain sum (annuity) to another person (the contract owner) during the
life of a certain person (the annuitant), who is usually the contract owner
but who can also be a third person. In exchange, the contract owner may
oblige himself to transfer property to the debtor, but this is not necessary:
an annuity can also be accorded by the debtor animo donandi as a gift for
which the debtor receives nothing in return. It is essential to the contract
of annuity that the ultimate amount of the obligation is uncertain, as it
depends on the lifetime of the annuitant.
Property may also pass on the basis of donations, which are considered to
be contracts. The requirements for the validity of donations resemble those
of other contracts, but they are more stringent.100 Donations result in an immediate and irrevocable transfer of property (Article 894 C.C.). According
to Article 931 Civil Code, they are subject to formal requirements: “all acts
containing an inter vivos gift shall be executed before notaries, in the ordinary
99
100
Cf. infra, Part II, 7.1.2.
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228
form of contracts; and there shall remain the original of them, on pain of
voidness” (free translation). However, it will emerge from the following that
a custom has developed that allows the gift of movables from hand to hand,
in which case the mere traditio is sufficient (cf. infra, Part II, 9.5.2).
A contract of settlement (“une transaction / dading”) is a contract by
which the parties terminate or prevent a conflict with mutual concessions.
Only in exceptional circumstances does it transfer property, i.e. a party
transfers property that is not the object of any discussion. Normally a contract of settlement has retroactive effects: it will only declare that the situation between the parties has always been as it is laid down in the contract.
Ownership can also pass on the basis of marital contracts or contracts
concluded in the course of a divorce by mutual consent.
Finally it is to be mentioned that property may pass on the basis of contracts of game and bet. The Civil Code takes an ambiguous position as to the
legal effect it confers on these contracts. It makes a distinction between, on
the one hand, games that are apt to be exercised with weapons, races, horse
races, races with carts, fives and other games in which dexterity and training
of the body are concerned and, on the other hand, other types of games.
For the first type of games, an action in payment is admitted, although
the judge may defer it if he considers the demanded sum extravagant.101 For
the second type of games, no action is admitted, but what is paid voluntarily
cannot be re-claimed, unless the winner practised fraud, ruse or swindle.102
Case law and legal scholars even consider contracts concerning the second
type of games and bets void.103 It seems to follow therefore that they cannot transfer ownership. The question then arises whether the losing party,
who has paid the winner on the basis of one of these contracts and who
cannot demand the price be re-paid on the basis of the law of obligations,
can revindicate his property or whether this action would also be barred by
the exception of game (Article 1967 C.C.).
6.3.2. Unilateral promises
(a)
Principle: binding force of unilateral promises
The Belgian Civil Code does not mention the unilateral promise as a source
of obligation. But, the Belgian Cour de Cassation has recognized the binding force of the unilateral promise and this view has been approved by an
almost unanimous legal scholarship.104
101
102
103
Article 1966 C.C.
Artt. 1965 and 1967 C.C.
(b)104
229
Exception: the unilateral promise of a gift
A unilateral promise cannot, however, realize a donation inter vivos because
Article 894 C.C. mentions explicitly the acceptance of the beneficiary as
a constitutive element of such a legal act: “A donation inter vivos is an act
by which the donator disposes immediately and irrevocably of property in
favour of a third person who accepts it” (free translation). Article 932 C.C.
adds that “[t]he donation inter vivos does not bind the donator and has no
effect whatsoever until the day on which it has been accepted in explicit
terms” (free translation). The acceptance can take place during the lifetime
of the donator by a later authenticated act of which a record is kept; but
then, it will only have effect as to the donator from the day on which the act
of acceptance is served upon him” (free translation). Moreover, where the
Civil Code has installed an “open” system of obligations, it has installed a
closed system of gratuitous dispositions. Indeed, Article 893 C.C. stipulates
that “one cannot dispose gratuitously of his property in any other way than
by donation inter vivos or by will, with respect to the forms stipulated hereafter” (free translation). The possibility of realizing a donation by a unilateral
promise seems therefore to be limited more strictly than the possibility of
creating (other) obligations by unilateral promises, and a widespread opinion considers promises to make a gift (from hand to hand) void.105
But, certain elements allow us to question this position. At first, we
have seen that the Belgian legal system accepts the validity of the gift from
hand to hand, although it is not explicitly mentioned by the Civil Code.
The gift from hand to hand implies an acceptance during the lifetime of
the donator, but it replaces the formal acceptance by a traditio. As we have
seen, the traditio is considered a means of confronting the donator with the
seriousness of his act, and therefore able to replace the formal requirements.
However, the necessity of a traditio has been criticised. Orders to transfer
money from one account to another do not imply a real traditio. Nevertheless, our legal system is prepared to accept that such orders can realize a
valid gift, although it may not be named gift from hand to hand, but rather
104
105
Cass. 9 May 1980, Arr. Cass. 1979-80, 1139 and Pas. 1980, I, 1127. For a general
overview: C. CAUFFMAN, De verbintenis uit eenzijdige wilsuiting, Antwerp, Intersentia, 2005, XL + 952 p.
Court of Appeal Liège 13 October 1997, J.L.M.B. 1998, 257, comment S. NUDELHOLE; H. DE PAGE and R. DEKKERS, Traité élémentaire de droit civil belge. Principes – Doctrine – Jurisprudence, VIII / 1, Les libéralités (généralités). Les donations, Brussels, Bruylant, 1957, n° 518, p. 619-620; W. PINTENS, B. VAN DER MEERSCH
and K. VANWINCKELEN, Inleiding tot het familiaal vermogensrecht, Leuven, Universitaire pers, 2002, n° 1037, p. 489.
Belgium
230
named indirect gift. Also, informal contracts of gifts promised by phone in
favour of good causes (solicitation) have become common.
Moreover, it is not always easy to distinguish valid unilateral promises
from unilateral promises of gifts, which leads to legal insecurity. The criterion for distinguishing both types of promises is, in fact, to be found in
the cause of the unilateral promise, the motive that moved the promisor to
make the promise. If this motive is an intention to give (“animus donandi”),
the promise is an invalid promise of a gift. If it is any other legal reason, it
is a valid promise.
This distinction can be illustrated by the following two cases. The
court of first instance of Nivelles declared void a women’s written promise
that declared “en reconnaissance de toutes vos gentilesses je vous offre deux
tableaux”.106 It did so although the offer was recognized by the Cour de
Cassation as a unilateral promise and the reference to “toutes vos gentilesses”
even indicated that the promise was not purely gratuitous, but rather a
reward for earlier performances.107
In contrast, the Court of Appeal of Ghent found a valid unilateral
promise in a written declaration of a father made during the course of a
divorce procedure by which he promised to pay a sum of 100.000 francs to
each of his children when they reached the age of majority.108 On a separate note, it has to be mentioned that fictitious recognitions of debt can
“disguise” a donation.109
In our opinion, it would be preferable to accept the validity of a unilateral promise to make a gift: this seems to respond to a social need and to
diminish legal insecurity. The protection of the promisor could be guaranteed by the validity requirements of unilateral promises.
6.3.3. Other sources of obligations
(a)
Torts
Whoever causes damage to another person by an illegal or careless act is
obliged to compensate the harmed party for the loss he has suffered (Article
1382 C.C.). Compensation for the loss should primarily be in natura:110 the
damage should be materially repaired, which can imply that the tort-feasor
106
107
108
109
Civ. Nivelles 4 March 1993, Rev. not. b. 1994, 32.
According to English law, this promise would be unenforceable because the consideration was “past” and “past consideration is no good consideration”.
Court of Appeal Ghent 23 November 1993, T.G.R. 1994, 109.
M. PUELINCKX-COENE, N. GEELHAND and F. BUYSSENS, “Giften 1993-1998”,
T.P.R. 1999, (779), n° 86, p. 831.
231
has to use his own materials to effectuate a repair of the property of the
victim of the tort or that he has to restitute the property he has stolen from
its owner. In the case the tort-feasor has to restitute the object he has stolen
from its owner, the owner has never lost ownership of it. If the tort-feasor
has to use his own materials, the property seems to pass by accessio with
their incorporation into the “main object” of the tort, or at the moment
they are handed over to the victim.
In case of non-performance of a contract, the creditor can request an
injunction to make the debtor perform. In case the debtor is liable for compensation because of non-performance in contractual cases, compensation
in natura is also the primary remedy. The argumentation above concerning
compensation in natura in tort cases applies equally to contractual cases.
(b)110
Unjust enrichment
The Civil Code does not mention unjustified enrichment as a source of
obligation. However it is recognised by the Cour de Cassation as a source of
obligation111 and even as a general principle of law.112
Unjust enrichment is a source of obligations if the following conditions
are fulfilled:
1. an impoverishment of the claimant;
2. an enrichment of the defendant;
3. a connection between the impoverishment and the enrichment;
4. the absence of a cause for the impoverishment and the enrichment; and
5. the absence of other causes of action (subsidiarity).113
110
111
112
113
Cass. 26 June 1980, R.C.J.B. 1983, 173, note F. DELPEREE; Cass. 20 January 1993,
Pas. 1993, I, 67, note; Cass. 21 April 1994, Arr. Cass. 1994, 392, note.
Cass. 18 December 1974, R.C.J.B. 1980, 61, note M. Coipel, Arr. Cass. 1975,
460, J.T.T. 1975, 53, concl. Att.-Gen. H. LENAERTS, Pas. 1975, I, 425, R.W.
1974-75, 1827, note W. LEEN and T.S.R. 1975, 79; Cass. 9 May 1980, Arr. Cass.
1979-80, I, 1132, Pas. 1980, I, 1120, J.T. 1981, 206 and T. Aann. 1981, 146, note
M. Senelle; Cass. 9 May 1980, Arr. Cass. 1979-80, I, 1139 and Pas. 1980, I, 1127;
Cass. (n° C. 99.0051.N / 1) 27 May 2002, http: // www.cass.be; Cass. 19 January 2004
(n° S.03.0073.N.), http: // www.cass.be.
Cass. 17 November 1983, Arr. Cass. 1983-84, 315, Pas. 1984, I, 295, R.W. 1983-84,
982, Rev. not. b. 1984, 601 and Rec. gén. enr. not. 1985, 310.
R. KRUITHOF, H. BOCKEN, F. DE LY and B. DE TEMMERMAN, “Overzicht van
rechtspraak (1981-1992) Verbintenissen”, T.P.R. 1994, (171), n° 320, p. 619.
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232
(c)
Court orders
Judicial decisions can also give rise to a transfer of property: this is e.g. the
case for judgements conferring on a creditor a pledge, or adjudicating seized
property to the highest bidder.
(d)
Succession law
Transfer of ownership by intestate, ab intestato succession law, takes place at
the moment of the death of the decujus.114 The heirs receive immediately
and by the sole effect of the law possession of the property of the estate.115
(e)
Wills
Article 895 C.C. provides that a will is an instrument by which the testator
states how the whole or part of his property will be disposed at the time
when he is no longer alive, but which he can always revoke.
A legacy can be general, under general title or under special title. A
general legacy grants a residuary claim on all the property the deceased will
leave at the time of his death (Article 1003 C.C.). A legacy under general
title grants the legatee a proportionate fraction of all the movable and /
or immovable property of the deceased (Article 1010 C.C.). Every other
legacy is a special legacy (Article 1010 paragraph 2 C.C.).
When at the moment of the death of the testator, no heirs exist on
whom the law confers reserved rights to his property, the general legatee,
will enter automatically into possession of the property without having to
ask for delivery.116
If the general legatee was installed by a holographic or international
will, he has to demand delivery from the president of the Court of First
Instance of the district where the succession has been opened.117
The legatee under general title has to demand delivery from the “reservative” heirs (i.e. heirs who cannot be totally disinherited, forced heirs)
and, in their absence, from the general legatee and, in his absence, from
the intestate heirs (Article 1011 C.C.).
114
115
116
117
Article 711 and article 718 C.C.; M. PUELINCKX-COENE, Erfrecht, Antwerp,
Kluwer, 1996, n° 30, p. 52.
Article 724 C.C. An exception is made for the State who inherits in the absence of
other heirs and who has to demand possession.
Article 1006 C.C.
Article 1008 C.C.
233
A special legatee receives the ownership of the property from the moment of the death of the deceased (Article 1004 C.C.), but he has to demand delivery from the “reservative” heirs and, in their absence, from the
general legatee and, in his absence, from the intestate heirs (Article 1011
C.C.).
7.
Validity of the contractual / promissory obligation
7.1.
Validity requirements and defects
7.1.1. General rules
Article 1108 C.C. requires for the validity of a contract:
– the consent of the party who obliges itself;
– its capacity to conclude contracts;
– a definite object as the subject of the contract; and
– a definite cause of obligation.
These conditions apply mutatis mutandis to unilateral promises.118
For “real” contracts, the actual transfer of the property is additionally
required. We refer for an analysis of these real contracts to Part II, 9.5.4.
(a)
Consent
The requirement of consent implies that the promisor or the parties to the
contract express their intention to be bound to certain obligations. If there
is a discrepancy between the actual intention of the party / parties and their
expressed intentions, the party / parties will nevertheless be bound if the
118
Court of Appeal Ghent 22 December 1998, T.B.B.R. 2002, 575, comment S. DEBUSSCHERE ; C. CAUFFMAN, “De verbindende eenzijdige wilsuiting” in Bijzondere
overeenkomsten, Commentaar met overzicht van rechtspraak en rechtsleer, Mechelen,
Kluwer, 2005, n° 80; C. CAUFFMAN, De verbindende eenzijdige belofte, Antwerp,
Intersentia, 2005, n° 751, p. 483, fn. 2395; E. DIRIX and A. VAN OEVELEN, “Kroniek van het verbintenissenrecht (1981-1984)”, R.W. 1985-86, n° 3, c. 4; W. VAN
GERVEN, Algemeen deel, p. 294, n° 294; W. VAN GERVEN and S. COVEMAEKER,
Verbintenissenrecht, Leuven, Acco, 2001, 167; P. WÉRY, “Les vices de consentement et
l’acte juridique unilatéral”, (comment under Com. Mons 8 July 2003), T.B.B.R. 2004,
p. 214, n° 1.
234
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promisee or counterparty could reasonably believe that the promisor, the
other party, expressed his intention to be bound (legitimate expectation).119
The consent should be free of defects: error, fraud, force, (qualified)
inequality between the rights and obligations of the parties. Mistake only
constitutes a defect of consent when it concerns the substance of the object
of the contract, or if and only if the contract or promise is made intuitu
personae, when it concerns the person of the promisee or counter party.120
The substance of the object of the contract is every element that has
influenced a person determinately to conclude the contract or make the
promise, in such a way that the contract or promise would not have come
into existence without this element.121
To constitute a defect-of-consent mistake for contracts and unilateral
promises, it is necessary that the counter party was aware of or should have
been aware of the determinant nature a party accorded to the element
concerning which he was in error.122 Furthermore, the mistake is only taken
into account if a reasonable person placed in the same circumstances would
have made the same mistake.123
Deceit is a defect of consent if one of the parties made use of manoeuvres without which the other party would not have concluded the contract.124 Manoeuvres can consist of fraudulent positive acts, but also of
fraudulent silence.125 Silence of a party is fraudulent if he was under an
obligation to inform, but consciously or intentionally did not comply with
this obligation.126 Informational obligations can result from the law, from
usages, from the type of contract or from special circumstances concern-
119
120
121
122
123
124
125
126
C. CAUFFMAN, “De verbindende eenzijdige wilsuiting” in Bijzondere overeenkomsten, Commentaar met overzicht van rechtspraak en rechtsleer, n° 83 with references.
Article 1110 C.C.
Cass. 27 October 1995, Arr. Cass. 1995, 920, Pas. 1995, R.W. 1996-97, 298 and J.T.
1996, 61; Cass. 3 March 1967, Arr. Cass. 1967, 829 and Pas. 1967, 811.
C. CAUFFMAN, “De verbindende eenzijdige wilsuiting” in Bijzondere overeenkomsten, Commentaar met overzicht van rechtspraak en rechtsleer, n° 88.
Cass. 28 June 1966, 664, Pas. 1966, 714 and J.L.M.B. 1997, 12; Cass. 20 April 1978,
Arr. Cass. 1978, 960 and Pas. 1978, 950; Cass. 10 April 1975, Arr. Cass. 1975, 785
and R.C.J.B. 1978, 198, note M. COIPEL; Cass. 6 January 1944, Arr. Cass. 1944,
66 and Pas. 1944, 133, note R.H.
Article 1116 C.C.
Cass. 8 June 1978, Pas. 1978, 1156, R.W. 1978-79, 1777 and R.C.J.B. 525, comment
J.P. MASSON; Cass. 21 April 1988, T.B.H. 1991, 203, comment C. JASSOGNE;
Cass. 16 September 1999, Arr. Cass. 1999, 1116, Pas. 1999, 1160, R.W. 2001-02,
414, T.B.B.R. 2000, 688 and A.J.T. 2000-01, 787, comment W. DE BONDT.
S. STIJNS, Leerboek verbintenissenrecht, Bruges, Die Keure, 2005, n° 110, p. 84.
235
ing the parties, for instance the professional knowledge of a party or the
legitimate expectations provoked by the other party.127
The Civil Code only mentions deceit committed by the other party as
a grounds for voidness. The question arises how this condition is to be applied to unilateral promises. Concerning unilateral promises, the majority
of legal scholars accept that deceit is a cause of voidness without regard to
the person from whom it emanates.128 Whoever wants to invoke deceit as
a defect of consent, has to prove that the manoeuvres have been used to
provoke the mistake of the other party to obtain his consent and to benefit
from it.129
According to the text of Article 1116 C.C., deceit will only be the
cause of voidness if it has been determinant in the sense that the other
party would not have given his consent without the deceit. This type of
deceit is called main deceit. Manoeuvres that only cause the deceived party
to contract under harsher conditions lead only to incidental deceit, which
can only be remedied as a pre-contractual fault leading to an obligation
to pay damages. However, damages need primarily to be paid in natura
and compensation in natura will in this case consist in the voidness of the
contract.130 The distinction between main and incidental fraud thus loses
much of its relevance and is criticised in legal scholarship.131
Violence or force consists in the use of physical or moral violence, at
least in the threat of it towards the person, the honour or the estate of the
other party, his spouse or his blood relatives in downward or upward line.132
To constitute a defect of consent, violence has to provoke an immediate
127
128
129
130
131
132
S. STIJNS, o.c., n° 110, p. 84.
H. DE PAGE, I, 1962, n° 52, p. 69-70; C. GOUX, “L’erreur, le dol et la lésion qualifiée: analyse et comparaisons”, T.B.B.R. 2000, p. 22, n° 15; R. KRUITHOF, H.
BOCKEN, F. DE LY and B. DE TEMMERMAN, “Overzicht van rechtspraak (19811992) Verbintenissen”, T.P.R. 1994, n° 127, p. 353; F. LAURENT, Principes de droit
civil, XV, Brussels, Bruylant, 1878, n° 529, p. 607; A. VAN OEVELEN, “Afstand
van recht en rechtsverwerking in het individuele arbeidsovereenkomstenrecht” in
M. RIGAUX (ed.), Actuele problemen van het arbeidsrecht 4, Antwerp, Maklu, p. 38,
n° 34. For a more detailed analysis, see C. CAUFFMAN, “De verbindende eenzijdige
wilsuiting” in Bijzondere overeenkomsten, Commentaar met overzicht van rechtspraak en
rechtsleer n° 89 with references.
S. STIJNS, o.c., n° 112, p. 85.
S. STIJNS, o.c., n° 113, p. 86.
See for instance R. KRUITHOF, H. BOCKEN, F. DE LY and B. DE TEMMERMAN,
“Overzicht van rechtspraak (1981-1992) Verbintenissen”, T.P.R. 1994, n° 126,
p. 351.
Article 1112-1113 C.C.
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236
fear for a considerable harm,133 it has to be determinant for the conclusion
of the contract and it should be illegal and illegitimate.134
Inequality between the rights and obligations of the parties only constitutes a defect of consent in the cases foreseen by the law. For the transfer
of movables are relevant:
– A person receives less than three-fourths of what he should receive in
a repartition (Article 887 and 1079 C.C.);
– Concerning legal acts by minors, one takes into account the inequality
between the performances promised by the minor and his estate or as
an inequality between the performances promised and received by the
minor (Article 1305 et seq. C.C.).
The limited protection the Belgian Civil Code provides against inequality
between the obligations of the parties in mutual contracts was considered
insufficient by the Belgian Courts and scholars, who developed the theory
of the qualified inequality between the obligations of the parties.
This theory applies when the following cumulative conditions are fulfilled:
– there is a serious inequality between the obligations of the parties;
– one of the parties abused the circumstances of physical, moral, intellectual
or economical inferiority of the other party or his own superiority; and
– without the abuse of circumstances one of the parties would not have
entered into the contract or would only have entered into it under less
harsh conditions.135
(b)
Capacity
According to Article 1123 C.C. anyone can conclude contracts unless he
is declared incapable thereto by the law.
A distinction should be made between the incapacity to possess rights and
the incapacity to exercise rights. Every natural person is in principle capable
of possessing rights and exercising these personally and independently.
Legal persons have in principle the same rights as natural persons except for the statutory limitations provided for certain legal persons and for
the rights and duties incompatible with the nature of a legal person (for
instance the right to recognize a child). To exercise their rights, legal persons have to be represented by natural persons, in particular by their organs
installed by law and by their articles of association.
133
134
135
Article 1112 C.C.; S. STIJNS, o.c., n° 117, p. 87.
S. STIJNS, o.c., n° 116 et seq., p. 87 et seq.
237
The incapacity imposed by law can be general or partial. Generally
incapable are minors (younger than 18) and certain mentally impaired
persons. Other types of mentally impaired persons and legally incapable
convicts are only partially incapable.
A person who is not declared incapable by law cannot oblige himself by
contract or unilateral promise to incapacity. However, one can deny oneself, for a limited time, the right to perform a certain legal act or to entrust
a part of his estate exclusively to another person.136
The most important category of incapable persons is minors. Their incapacity is general, which implies that it concerns in principle all kinds
of legal acts and legal actions. However, the law and legal custom accept
certain exceptions, like the capacity of the minor to open a saving account
in his own name.
The incapacity of the minor is in principle complete, which indicates
that the minor cannot act personally but has to be represented. However,
it is accepted that there are exceptions whereby the minor can perform
certain acts personally, albeit not completely independently. He is then
protected by several techniques such as assistance, consent of the persons
exercising authority over him (e.g. for the conclusion of a labour contract),
and by the possible opposition of those persons.137
(c)
Object
The object is the concrete legal effect the party / parties want(s) to create,
i.e. the whole of obligations parties want to create, modify, transfer or extinguish. The object of the legal act should in fact be distinguished from the
object of the obligation, which is the promise to do, give or abstain from
something. The obligation to give has an object in the third sense of the
term ‘object’. However, these distinctions are not always clearly made. Even
Article 1126 C.C. does not use clear terminology, as it mentions the object
of the contract where, in fact, it means the object of the obligation.138
The object that should (be able to) exist and be definite or definable
according to Articles 1108 and 1120 C.C. is the object of the obligation,
the promised act.139
136
137
138
139
S. STIJNS, o.c., n° 128, p. 94.
S. STIJNS, o.c., n° 129, p. 95.
S. STIJNS, o.c., n° 131, p. 96.
Cass. 8 April 1999, Arr. Cass. 1999-2000, 475, Pas. 1999, 487, R.W. 2001-02, 596
and T.B.H. 1999, 855, note I. CLAEYS; Cass. 14 September 2000, Arr. Cass. 2000,
1365, with concl. Att.-Gen. HENKES, Pas. 2000, 1339, 855.
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238
Only property that is in commerce can be the object of a promised act
(Article 1128 C.C.). Not in commerce is, for instance, property of the
public domain, for public use (e.g. museum pieces), personality right.140
The Civil Code also provides the possibility for the parties to leave the
determination of the object to a third person; the decision of the third party
is called a binding third-party decision (bindende derdenbeslissing).141 The
majority of legal scholars also accepts the possibility of giving a party the
power to determine the object of the obligation (excesses can be remedied
by the theory of abuse of rights).142
(d)
Cause
The cause is the determinant motive for a certain legal act; it can include
the object of the obligation of the other party or the animus donandi.143
The validity of the obligation requires an existing and legitimate cause.144
A legal act will not have an existing cause if it is based on a presumption
or a legal relation that later appears not to be in conformity with reality, or
to be inexistent or annulled. The legal act was then based on a wrong determinant cause.145 The cause will be illegitimate if the determinant motives
of one of the parties infringe rules of public order or of mandatory law.146
7.1.2. Special rules for gifts, including wills
(a)
Sanity of mind
The first requirement for the validity of a donation or of a will is, as is true
for other contracts, consent. With respect to donations and wills, which
are unilateral acts, the Civil Code specifies that the donator has to be “sane
140
141
142
143
144
145
146
S. STIJNS, o.c., n° 133, p. 96-97.
S. STIJNS, o.c., n° 134, p. 97. For the contract of sale, see article 1592 C.C. concerning the possibility to have a third person determine the price.
S. STIJNS, o.c., n° 135, p. 98-99.
Cass. 16 November 1989, Arr. Cass. 1989-90, 371, note, Bull. 1990, 331, comment,
Ann. dr. Liège 1990, 334, note P. DELNOY, J.L.M.B. 1990, 1190, J.T. 1991, 211,
Pas. 1990, I, 331, note, R.C.J.B. 1993, 73, note S. NUDELHOLE, R.W. 1989-90,
1259, Rec. gén. enr. not. 1991, 248, Rev. not. b. 1990, 240, comment and T.B.B.R.
1990, 294, note L. RAUCENT.
Article 1108 C.C.; Article 1131 and 1133 C.C.
Comp. S. STIJNS, o.c., n° 145, p. 104-105.
S. STIJNS, o.c., n° 149, p. 108.
239
of mind”, which not only refers to his mental condition, but also to his
physical condition. If the donator is considered to be insane of mind, his
donation is void, even if his consent is not completely absent or if one of
the defects of consent mentioned in Article 1109 C.C. is present.147
This theory of strengthened consent for gifts has been criticised in the
literature. According to its critics, one cannot speak of a strengthened
consent: at most one could accept stronger judicial control over the presence of consent.148
Insanity of mind can be proven by all means of law, including testimonies and presumptions. Proof of insanity of mind can follow from the content or the formal aspects of the legal act. However, as such, this will usually
not be considered sufficient. It will have to be completed, for instance, with
testimonies and medical reports.149
(b)
Defects of consent
The defect of consent that is most commonly invoked in cases concerning
gifts is deceit, which here is distinguished from the “common deceit” treated above in the section concerning contracts and unilateral promises.150 In
the matter of gifts, deceit is a cause of voidness even if it does not emanate
from the counter party. Deceit also covers “captatie en suggestie”, i.e. the
creation of an artificial climate by third parties in order to make a party
dispose of property in their favour.151 According to the main position in
present Belgian law, one only deals with “captatie en suggestie” if the dispositor was influenced by trickery, fraudulent acts or lies. Exaggerated flattery or
calculated helpfulness does not suffice to achieve the voiding of the gift.152
147
148
149
150
151
152
M. PUELINCKX-COENE, N. GEELHAND and F. BUYSSENS, “Giften 1993-1998”,
T.P.R. 1999, n° 4, p. 787; H. DE PAGE, VIII / 1, n° 82, p. 127 et seq.
F. SWENNEN, “Het misverstand van de “theorie van de versterkte toestemming”
bij giften”, A.J.T. 1998-99, 569 et seq.
M. PUELINCKX-COENE, N. GEELHAND and F. BUYSSENS, o.c., T.P.R. 1999,
n° 6 et seq., p. 788 et seq.
See M. PUELINCKX-COENE, N. GEELHAND and F. BUYSSENS, o.c., T.P.R.
1999, n° 25, p. 796.
n° 25, p. 796.
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240
(c)
Capacity
According to Article 902 C.C., every person is in principle capable of
disposing and receiving by donation or by will, unless the law declares him
incapable thereof.
Concerning donations, the legal capacity and capacity to act must exist at the moment of the offer and at the moment of the acceptance of the
donation. Concerning wills, the legal capacity and capacity to act must
only exist at the moment the will is made. At the moment of death he
must only have the capacity to leave a will, he need no longer be able to
make a will.153 The beneficiary of a donation must have legal capacity to
receive at the moment of the offer, and at the moment of acceptance and
communication thereof.154
Concerning legacies, legal capacity to receive must exist at the moment
of the death of the testator. For, it is at that moment that the rights of the
beneficiary come into existence. However, if a special legal incapacity to
receive rests on the beneficiary, the beneficiary has to be capable of receiving at both the moment the will is made and at the moment of the death
of the testator.155
Minors are not capable of receiving donations made to them. If one
of the parents is still alive, he or she can accept the donation (Article
376 C.C). This rule is also applied to legacies. If the minor no longer has
parents, the donation or legacy under special title needs in principle to be
accepted by the guardian with authorisation of the Justice of the Peace
(Article 410, § 1, 6° and Article 935 C.C.). A minor that has been “deguardianed” (i.e. relieved from parental powers, but given a curator whose
assistance is required for certain legal acts) can accept a donation with
assistance of his curator. However, all the blood relatives of the minor can
also accept the donation for the minor (Article 935 C.C.).
Article 907 C.C. forbids a minor, even if he has reached the age of 16
years, to dispose in favour of his guardian. Even if he has reached majority
no disposition in favour of his previous guardian is possible as long as the
closing account concerning the guardianship is not made and settled.
Medical doctors are incapable of receiving if they have treated the person during the illness from which he has died and when the gift in their
favour is made during that illness.
153
154
155
n° 31, p. 800.
n° 32, p. 800.
n° 32, p. 800.
241
The relative incapacities to receive cannot be set aside by making a gift
to the parents, descendents or spouse of the relatively incapable person.
These persons are presumed juris et de jure to be only an intermediary for
the relatively incapable person (Article 911 C.C.). Article 911 C.C. is to be
interpreted strictly; for example, it should not be applied to the cohabitating partner of the relatively incapable person.156
Gifts of more than 100.00 Euros to legal persons with a disinterested
aim need to be authorized by the Minister of Justice or his representative,
unless they take the form of gifts from hand to hand.157
7.2.
Remedies
7.2.1. Absolute / relative voidness
(a)
Necessity of judicial intervention
Belgian law does not know any act that can be considered not to exist except by intervention of a judge; nor does it know any voidness that can be
realized by declaration of one of the parties to the legal act. The intervention of a judge is necessary to declare an act void. This is the case when the
voidability results from the infringement of a rule that serves only private
interests (in which case a relative voidness / voidability is concerned) as
well as when it results from the infringement of a rule that serves general
interests (in which case an absolute voidness / voidability is concerned).158
If a legal act is afflicted with a defect that can be remedied by relative
voidness, it can only be declared void upon demand of the protected party.
If it is afflicted with a defect that can be remedied by absolute voidness, it
can be declared void upon demand of any person that has an interest in its
voidness; the court before which a conflict with regard to the afflicted legal
act is brought, can also invoke absolute voidness.159 Both kinds of voidness
remedy defects existing at the moment the legal act comes into existence.
(b)
Causes of absolute / relative voidness
The following defects lead to relative voidness:
156
157
158
159
n° 51, p. 812; H. DE PAGE, VIII / 1, n° 230, B, p. 308.
Article 16 Law 27 June 1921 as modified.
S. STIJNS, o.c., n° 176, p. 127.
S. STIJNS, o.c., n° 50, p. 39-40 and n° 178, p. 128.
242
Belgium
– absence of consent, cause, object;
– defects of consent – mistake, deceit, force, (qualified) inequality of the
rights and duties of the parties;
– incapacity of the promisor or of one of the contracting parties;
– an object that infringes rules of mandatory law that do not concern
public policy or good morals, but which serve only private interests; or
– a cause that infringes rules of mandatory law, that does not concern
public order or good morals, but that serves only private interests.160
The following defects lead to absolute voidness:
– an object that infringes rules concerning public order or good morals; or
– a cause that infringes rules concerning public order or good morals.161
Concerning the remedy for incapacity of minor promisors or contracting
parties, some clarifications have to be made. A distinction ought to be
made between the situation in which the minor has and has not reached
the age of majority.
If the minor has not yet reached this age, the judge before whom an
action in voidness is brought in the name of the minor (or by the minor
himself after majority) must declare the legal act null and void.
If the minor has reached the age of majority, a further distinction is to be
made. The judge before whom an action in voidness is brought will have to
investigate whether the problematic act is one that the minor’s representative could have made without special formalities (e.g. sale of a movable)
or whether it concerns an act that his representative could not have made
without special formalities or could not have made at all.
If it concerns an act that the representative could have made without
special formalities, it will only be declared null and void in case of proven inequality between the rights and obligations of the parties. If it concerns an act
that the minor’s representative could not have made without special formalities or could not have made at all, it will be declared null and void without
regard for any inequality between the rights and obligations of the parties.162
The sanction of qualified inequality between the rights and obligations
of the parties is disputed. At present, the main opinion considers the qualified inequality an application of the culpa in contrahendo, which leads to
extra-contractual liability.163
160
161
162
163
S. STIJNS, o.c., n° 50, p. 39.
S. STIJNS, o.c., n° 50, p. 39.
S. STIJNS, o.c., n° 129, p. 95.
Antwerp 21 January 1986, R.W. 1986-87, 1488, comment D. DELI; E. DIRIX and A.
VAN OEVELEN, “Kroniek van het verbintenissenrecht (1985-1992)”, R.W. 1992-
(c)
243
Consequences of absolute / relative voidness
Absolute voidness as well as relative voidness leads in principle to the annulment of the legal act ex nunc; the legal act is considered never to have
existed.164 A possible transfer of property is also considered to have never
been realized. However, the rules of third-party acquirers a non domino of
movables are protected by Article 2279 C.C.
As the declaration of voidness normally leads to the annulment of
the act ex tunc, the arguments of voidness lead to a black or white, all or
nothing, solution. This effect of voidness has been strongly criticised. At
present, the majority of case law and literature accepts that the judge can
adapt the annulment to the circumstances of the case.165 The adaptation
of annulment can consist in declaring only certain clauses of a contract
null (partial annulment), a reduction of the rights and obligations of the
parties,166 conversion,167 or limitation of duties of restitution.168 Also there
is the possibility of complementing or replacing annulment by an action in
damages, dealt with in the next paragraph.
7.2.2. Damages
Damages can be awarded as a complementary remedy to annulment. This
possibility exists if a pre-contractual fault has been committed and the
resulting harm is not entirely compensated by the annulment of the contract.169 Damages can also be awarded as the only remedy for a pre-contractual fault that does not lead to voidness, but has caused harm.170
If a defect in the constitution of a judicial act can be remedied by relative voidness, the protected person can chose not to assert the voidness, but
claim damages, at least if the defect is caused by a fault of the other party
and caused harm to him. Damages can thus replace annulment.171
164
165
166
167
168
169
170
171
93, n° 23, p. 1219; S. STIJNS, D. VAN GERVEN and P. WERY, “Chronique de
jurisprudence. Les obligations: les sources (1985-1995)”, J.T. 1996, n° 65, p. 713.
S. STIJNS, o.c., n° 174, p. 127.
S. STIJNS, o.c., n° 179, p. 129; W. VAN GERVEN and S. COVEMAEKER, Verbintenissenrecht, Leuven, Acco, 2001, 91.
S. STIJNS, o.c., n° 186, p. 134. Although the Cour de Cassation does not easily
accept this type of adaptation of nullity, Cass. 23 March 2006, http: // www.cass.be.
S. STIJNS, o.c., n° 181, p. 131.
S. STIJNS, o.c., n° 181, p. 131.
S. STIJNS, o.c., n° 181, p. 131.
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244
8.
Requirements for ownership
8.1.
Principle
The rule Nemo plus iuris transferre potest quam ipse habet is recognized as
basic in Belgian law. It implies a.o. that a person who only has a conditional
property right, can only transfer a conditional property right. However,
the impact of the nemo plus-rule is limited in various ways in matters of
movables, especially by Article 2279 C.C. and by the rules of (direct and
indirect) representation.
8.2.
Exceptions
8.2.1. Article 2279 C.C.
Article 2279 C.C. enables a third party in good faith to acquire property
received a non domino, from a person who is not its owner. These rules are
dealt with in detail in Part III, 18.
8.2.2. Representation
According to the traditional definition, representation refers to the situation in which a person, the agent or other intermediary, acts (in the name
and) on behalf of another person, the principal, with the effect that the
legal consequences arise directly and exclusively for the principal.172 However, a few authors define representation as a legal technique that enables
a person, the principal, to confer on another person, the intermediary, the
power to accomplish legal acts on his behalf.173
Representation is called direct if the intermediary has the power to act
not only on behalf of, but also in the name of the principal; it is called indirect if the intermediary has the power to act in his own name, but on behalf
of the principal. By means of direct representation, as well as by means of
indirect representation, the principal can confer on the intermediary the
power to dispose of his property.
172
173
L. CORNELIS, Algemene theorie van de verbintenis, Antwerp, Intersentia, 2000,
n° 29, p. 40; P. WERY, Le mandat, in Répertoire notarial, Brussels, Larcier, 2000,
n° 10, p. 66.
For instance K. BROECKX, “Vertegenwoordiging in rechte en naamlening in het
geding”, R.W. 1994-1995, 248 et seq.
8. Requirements for ownership
245
In the case of direct representation, all the legal consequences (obligatory and property rights) of the legal act accomplished by the intermediary
arise in the relationship between the third party and the principal. The
principal and the third party are the parties to the legal act accomplished
by the intermediary. The intermediary remains outside the contractual relationship arising out of the agreement, and does not become owner of the
property, which would be acquired by the legal act he accomplished. The intermediary only serves to accomplish the act; he is not involved in its legal
consequences, except when he commits wrongful acts, causing loss to the
third party, for instance when he has mislead the third party concerning his
powers of authority.174 In this case he will be liable on the basis of tort law.175
In the case of indirect representation, the obligatory consequences of
the act accomplished by the intermediary arise in the relationship between
the intermediary and the third person. The legal act accomplished by the
intermediary does not give rise to obligations in the relationship between
the principal and the third party. However, the property rights transferred
by (or to) the intermediary pass directly from the estate of the principal
to that of the third party (and vice versa), at least as long as the property
transferred is not mixed with the property of the intermediary.176 This rule
is derived from Article 103 Bankruptcy Act, which confers on the principal a right of revindication in case of the insolvency of the intermediary
(commissionaire). We refer for a further analysis of the rules on indirect
representation to infra, Part II, 12.
If the intermediary acts without power of representation, or when he
exceeds his powers of representation, the starting point is that neither the
principal nor the intermediary is bound by the act of the intermediary.177
174
175
176
177
He can of course incur contractual liability, when he has additionally committed
himself towards the third person, or when he has committed himself to the principal
for example to guarantee the solvency of the third person, but these commitments
are no consequence of the power of representation (Article 1997 C.C.; I. SAMOY,
“Vertegenwoordiging” in Bijzondere overeenkomsten. Commentaar met overzicht van
rechtspraak en rechtsleer, Mechelen, Kluwer, 2004, n° 29.
I. SAMOY, “Vertegenwoordiging” in Bijzondere overeenkomsten, n° 32.
E. DIRIX, “De rechtsverhouding tussen principaal, commissionair en derde” in E.
DIRIX, W. PINTENS, P. SENAEVE and S. STIJNS (eds.), Liber Amicorum Jacques
Herbots, Antwerp, Kluwer, 2002, (97), n° 4, p. 100 and n° 10, p. 106; I. SAMOY,
“Vertegenwoordiging”, in Bijzondere overeenkomsten, n° 32.
P.-A. FORIERS, “Le droit commun des intermédiairs commerciaux: courtiers, commissionnaires, agents” in B. GLANSDORFF (ed.), Les intermédiaires commerciaux,
Brussels, Editions du Jeune Barreau de Bruxelles, 1990, n° 68, p. 77-78; I. SAMOY,
“Vertegenwoordiging”, in Bijzondere overeenkomsten, n° 33; P. WERY, Le mandat,
n° 203, p. 241 and n° 213, p. 251.
246
Belgium
The principal is not bound, because he is not represented and did not consent to the act. The intermediary, who acted in the name and on behalf of
a third party, is not bound because he did not express the intention to be
personally bound. However, if the intermediary has misled the third party
about the extent of his powers or if he has not given the third party sufficient information about the extent of his powers, he will be considered
to have committed a wrongful act, which can give rise to extra contractual
liability against the third party (Article 1997 C.C.).178
To the rule that neither the principal nor the intermediary is bound by
the act of the intermediary exceeding his powers, three exceptions exist.
First, the principal has the possibility to ratify the act of the intermediary who exceeded his powers. Ratification by the principal can be expressed
or silent (Article 1998 paragraph 2 C.C.). Ratification is a unilateral act by
which the principal confers post factum power of representation on the intermediary.179 No formal requirements apply.180 In the relationship between
the principal and the intermediary, the ratification has effect ex tunc: the act
accomplished by the intermediary is considered to have been accomplished
from the beginning on behalf of the principal.181 However, the ratification
cannot deny the rights third parties have acquired between the moment the
legal act was accomplished and the moment of the ratification.182
Second, under certain conditions Belgian law allows, by means of the
theory of apparent representation, the interests of the intermediary’s counter
party to prevail over those of the principal and the principal to be bound,
even if he did not confer on the intermediary the power to accomplish the act.
The requirements for the application of the theory of apparent representation are:
1. the creation of an apparent situation, namely the fact that the intermediary has been conferred the necessary power of representation, which
does not conform to reality;
2. a justified confidence of the third party in the presence and extent of
the powers of the intermediary;
3. the imputability of the appearance to the apparent principal; and
4. an act of omission of the third party in reliance on the appearance.183
178
179
180
181
182
183
H. DE PAGE and R. DEKKERS, V, 1975, n° 444, p. 440-441.
I. SAMOY, “Vertegenwoordiging” in Bijzondere overeenkomsten, n° 34; P. WERY, Le
mandat, n° 205, p. 243.
I. SAMOY, “Vertegenwoordiging” in Bijzondere overeenkomsten, n° 32; P. WERY, Le
mandat, n° 205, p. 244.
H. DE PAGE and R. DEKKERS, V, 1975, n° 446, p. 443.
Cass. 21 September 1987, Pas. 1988, 77.
A. VAN OEVELEN, “De juridische grondslag en de toepassingsvoorwaarden van de
verbondenheid van de lastgever bij een schijnmandaat”, R.CJ.B. 1991, 68-73.
8. Requirements for ownership
247
Third, negotiorum gestio is the voluntary accomplishment of a useful act
in the interest of a third person. If the negotiorum gestor has accomplished
an act on behalf of the third person, he is treated as his agent (Article
1372-1375 C.C.). The principal may be bound to the agent on the basis of
unjustified enrichment if the appropriate conditions are fulfilled.184
Agency is currently used in real estate transactions, commercial distribution and other commercial contracts. In this context, a special situation
is one in which one person may grant another person a right to dispose of
his property, but retains ownership until he has received payment. This is
a particularly frequent practice if the sold goods are perishable.
This construction serves the interests of both parties to the original
sale. The first buyer will often not be able to pay his seller before he has
himself sold the goods to a third party and has received the purchase price;
nonetheless, in the absence of special permission, the fact that his seller has
retained a property interest forbids him to sell the goods.
The first seller will find himself in a weak position if his buyer nevertheless sells the goods to a third person. Indeed, often the third party will
act in good faith and will be able to invoke the protection of Article 2279
C.C. if he is sued in revindication by the first seller. The first seller has the
possibility to file a contractual action against the first buyer. He will even
have the possibility to start a criminal prosecution of the first buyer and file
a delictual claim against him. But, as the first buyer will often be insolvent,
the seller will often not receive compensation for his loss.
To avoid these problems, the seller can stipulate a cession in his favour
of all the obligatory rights against any third person, for instance the next
buyer of the goods, that the first buyer has or will obtain. If this cession is
agreed on at the time of the conclusion of the sales contract, or even later –
but in any case before the sale of the goods by the buyer – the first seller
will be considered to have consented to the resale by his buyer. Such an
implicit consent will not be presumed if the cession is agreed on after the
resale, and the first buyer has the right to prove that his seller had already
consented to the resale. Mind that cession is only opposable against the
third party if the cession has been communicated to him by either the first
seller or by the first buyer (Article 1690 C.C.). It is strongly advised that
the first seller attends to this communication.185
184
185
H. DE PAGE, V, 1975, n° 447, p. 443.
Ph. COLLE and B. VAN DEN BRANDE, “Het eigendomsvoorbehoud verbintenisrechtelijk bekeken en tegenwerpelijkheid van het beding in verschillende samenloopsituaties” in B. TILLEMAN and P.-A. FORIERS (eds.), De koop, in Recht en
onderneming, Bruges, Die Keure, 2002, n° 11, p. 171-172.
Belgium
248
9.
Consensual system
9.1.
General principle: transfer by mere consent
There is, according to Belgian law, a principle that ownership shall pass when
the obligation to transfer ownership arises: this principle emerges from the
combination of Articles 712 and 1138 C.C. Article 711 C.C. lists the various ways of acquisition of property rights: “Ownership of property is acquired
and transmitted by succession, by gift inter vivos or will, and by the effect of
obligations” (free translation). Article 1138 C.C. specifies that an obligation
to deliver property is complete by the sole consent of the contracting parties.
The conclusion of a lawful agreement is not only the source of contractual rights and obligations, but also has proprietary effects. It makes the
creditor the owner and transfers to him the risk from the time when the
thing should have been delivered, even though the handing over has not
been made, unless the debtor has been given notice to deliver; in which
case, the thing remains at the risk of the latter. So, Belgian law has a consensual system of transfer of property rights: property rights are transferred
by the mere agreement between the parties.186 Even if the transferor keeps
the physical control over the property, he is a mere detentor of the asset,
and holds it for the account of the seller.187
Even if Article 1138 C.C. at first sight limits this principle to contractual obligation, it is generally accepted that it is equally applicable to other
kinds of obligations. The more general principle is expressed in Article 711
C.C., which is not limited to contractual obligations.
The general rule of Article 1138 C.C. is iterated in Article 1583 C.C.
for sales agreements and in Article 938 C.C. for gifts:
– Article 1583 C.C. provides that “it188 is complete between the parties,
and ownership is acquired as of right by the buyer with respect to the
seller, as soon as the property and the price have been agreed upon, although the property has not yet been delivered or the price paid” (free
translation).189 By consequence, transfer of ownership belongs to the
essential features of a sales agreement.190
186
187
188
189
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 20; J. HANSENNE,
Les biens, I, n° 210; A. KLUYSKENS, Beginselen, V, n° 101; M. WAELBROECK,
Le transfert de la propriété dans la vente d’objets mobiliers corporels en droit comparé,
Brussels, Bruylant, 1961, p. 19, n° 6.
M. WAELBROECK, o.c., p. 20, n° 6.
Meaning: a sale.
The original French text provides: “Elle est parfaite entre les parties, et la propriété est
acquise de droit à l’acheteur à l’égard du vendeur, dès qu’on est convenu de la chose et du
prix, quoique la chose n’ait pas encore été livrée ni le prix payé”.
249
– Article 938 C.C. provides that “a gift, if duly accepted, will be effected
by the mere consensus of the parties. Ownership of property donated
will pass to the donee without another traditio being needed” (free
translation).191
190
In this way, Belgian (and French) law take a total departure from the basic
principles of Roman law in which the agreement in itself was insufficient
to operate as a transfer of ownership.192
There are no formal requirements. The signing of a written document is
not necessary for the passing of ownership, but merely to prove the transfer
of ownership if the transfer involves property of which the value exceeds
€ 375.193 The delivery is not necessary either.194 This also results in the
transfer of the risk of the asset by the mere agreement between the parties:
if the asset perishes due to vis maior after the agreement but before the
delivery of the asset, the creditor of the obligation will normally bear the
risk (“res perit domino”).
The consensual transfer entails, from the moment of the agreement,
that all fruits belong to the transferee. His ownership includes the right to
the fruits (“ius fruendi”). This rule is expressly stated by Article 1614 C.C.
with regard to sales agreements: “The property must be delivered in the
condition in which it is at the time of the sale. From that day, all the fruits
belong to the purchaser” (free translation). The solution is of course different if transfer of ownership has been delayed. This gives a counter-balance
to the (sometimes inequitable) rule with regard to the passing of the risk:
the transferee, on the one hand, immediately bears the risk of his property,
but on the other hand, is entitled to reap the fruits.
The mere consensus of intentions is sufficient to accomplish the transfer
of ownership. This also entails the transfer of risk from that moment on.
If the sold property perishes due to vis maior, even if delivery had not been
effected yet, the buyer will be obliged to fulfil the obligation to pay the
price, as he has become the owner of the property (“res perit domino”).195
190
191
192
193
194
195
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV n° 21.
The original French text provides: “La donation dûment acceptée sera parfaite par le seul
consentement des parties ; et la propriété des objets donnés sera transférée au donataire,
sans qu’il soit besoin d’autre tradition”.
See for an analysis: V. SAGAERT, o.c., in W. FABER and B. LURGER (eds.), Rules
for the transfer of movables. A candidate for European harmonization or national reforms?,
München, Sellier, 2008, 9 et seq.
Article 1341 C.C.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 25A; M. WAELBROECK, o.c., p. 51, n° 41. Some 19th century legal scholars have refused to con-
250
Belgium
This general starting point does not apply if parties have contractually
delayed the transfer or if the transfer is delayed due to the nature of the
property (cf. Part II, 9.2). There is however another exception to this rule:
if the buyer has given notice to the seller with regard to his obligation
of delivery, and the property perishes afterwards, the seller will normally
not be entitled to the sales price, except if he can prove that the property
would also have perished if he had delivered the property according to his
contractual obligations.196 In other words: notice re-transfers the risk to the
seller. This is expressed by Article 1138 C.C.
Parties are however free to disconnect the transfer of risk from the transfer of ownership. Contrary to the French Commercial Code, Belgian statutes
do not expressly recognize this possibility, but legal scholars and case law
have adopted the same position.197 Parties can thus stipulate that the risk
passes at another moment than ownership. It is however a debated question
whether they can stipulate that the risk passes at a moment at which ownership cannot pass, for instance: can parties agree that risk passes before the
individualisation of the generic goods that are sold? Some scholars have
denied such possibility,198 but the majority opinion tends to accept it.199
How can the consensual transfer system in Belgian property law be
explained from a theoretical point of view? Historically, Belgium was part
of France and was subject to the developments in French law preceding the
introduction of the Belgian Civil Code.200 Before the Napoleonic Code,
French law201 required a traditio for the transfer of movable and immovable
property in both “les pays de droit coutumier” (north of France) and “les
pays de droits écrit” (south of France). The latter regions had the traditio
requirement since the requirement dated back to Roman law. In the former
regions, customary law was prevailing but, nevertheless, the traditio requirement was upheld over there. In these regions, the transfer of ownership
required a proceeding called “investiture réelle”.202
196
197
198
199
200
201
nect the transfer of ownership to the transfer of risk, (cf. F. LAURENT, Principes,
XVI, n° 208-209), but this opinion has not been supported afterwards.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 25A, c.
G. VAN HECKE, “Verhaalsrecht van schuldeisers op roerende goederen die hun
schuldenaar in detentie heeft” in Jaarboek 1958-59 van de Vereniging voor de vergelijkende studie van het recht van België en Nederland, p. 53, n° 43.
J. HEENEN, “Le transfert des risques et le transfert de la propriété dans les ventes
de choses de genre”, R.D.I.D.C. 1954, 116; M. WAELBROECK, o.c., p. 53, n° 43.
See e.g. V. SAGAERT, o.c., in W. FABER and B. LURGER (eds.), Rules for the transfer
of movables. A candidate for European harmonization or national reforms?, p. 10, n° 5.
Both “les pays de droit coutumiers” (north of France) and “les pays de droits écrits”
(south of France).
251
This traditio requirement was gradually being eroded as in many instances a true transfer of direct possession was no longer needed. Often a
simple declaration that possession had been transferred replaced the actual
transfer. This was called “une clause de dessaisine-saisine”, e.g. a clause in
which parties contractually agreed that possession had been passed. In this
way, a “tradition feinte” (fictitious transfer) was developed.
The practical result of the fictitious traditio was that ownership (especially of land) passed when the contract of sale was concluded. The same
practices were transposed to the transfer of immovables. With the introduction of the Civil Code, a clause creating a fictitious transfer was presumed by the legislator. The consensual transfer was dogmatically justified
by PORTALIS, during the preparatory work for the Civil Code, in stating
that a contract for transfer of ownership contains a certain fictitious traditio,
which performs the transfer of rights.203
This widespread use of the consensual transfer demonstrates that the
so-called break with the past with regard to the system of transfer was rather
a continuity. With the introduction of the Civil Code, it was presumed that
parties implicitly included a clause that ownership passed immediately.204
However, POTHIER – an author whose writings largely influenced the
drafters of the Civil Code – still pleaded for a traditio system.205
Some authors find evidence in these developments to allege that
French, and thus Belgian, law, recognizes a traditio requirement. Additional
evidence is sought in Article 938 C.C., which reads as follows: “A gift, if
duly accepted, will be effected by the mere consensus of the parties. Ownership of the goods donated will pass to the beneficiary without another
traditio being needed”206 (free translation, emphasis added). The word “another” implies that there is already a traditio in the consensual gift, which
is deemed to be executed tacitly.207
The most common explanation however is that PORTALIS did not intend to say that a transfer of possession is still needed, but only that transfer
202
202
203
204
205
206
207
L. VAN VLIET, Transfer of movables, Nijmegen, Ars Aequi Libri, 2000, 76.
LOCRE, Législation civile, commerciale et criminelle, ou commentaire et complément des
code Français, Brussels, Wahlen, 1836, 71.
A. KLUYSKENS, Beginselen, V, n° 102; see also C. LEBON, “Non nudis pactis
dominia rerum transferuntur? Kritische bemerkingen omtrent de consensualiteit van
de overdracht van eigendom en de vestiging van beperkt zakelijke rechten”, T.P.R.
2004, 425-426.
R.J. POTHIER, Traité du domaine de propriété, in Oeuvres de Pothier, IX, 186 et seq.
Article 938: “La donation dûment acceptée sera parfaite par le seul consentement des
parties; et la propriété des objets donnés sera transférée au donataire, sans qu’il soit besoin
d’autre tradition”.
C. BUFNOIR, Propriété et contrat, Paris, 1924, 45 et seq.
Belgium
252
of direct possession was not needed under the system of the Civil Code.208
This does not exclude however systematic arguments for acknowledging
that there still exists a real agreement in French / Belgian law. They refer
therefore to the transfer of generic goods (Part II, 9.2.1) and the retention
of title (cf. infra, Part IV, 23).
9.2.
Exceptions: according to the nature of the property
9.2.1. Generic property
With regard to generic property,209 the principle of consensualism cannot
be completely upheld. It is a common principle of property law that property rights can only have as their object identified or identifiable assets.
Property rights can never concern an abstract value. This is the so-called
principle of specificity.210 This principle was formulated by the Supreme
Court in 1947: a vindication claim can only be accepted if and to the
extent it concerns specific property, and it cannot be exercised based on
the amount due.211
As a consequence, if A sells generic goods to B, ownership will only
pass after the individualisation of the goods that are transferred.212 That
also results in the transfer of risk at the moment of individualisation. A
normally will never be discharged of his obligation to deliver amount X of
generic goods, not even if the goods that he had in mind have perished due
to vis maior.213 This is the Roman law rule “genera non pereunt”.
208
209
210
211
212
213
In the same sense: L. VAN VLIET, o.c., 80.
We comprehend assets which according to their nature can only be determined to
their measure, number of weight, and not according to their individual characterisitics (V. SAGAERT, Zakelijke subrogatie, Antwerp, Intersentia, 2003, n° 418).
G. BELTJENS, Article 567 Faill. W., p. 957, n° 29; H. JONES, “Dépôt irrégulier et
abus de confiance”, Rev. not. b. 1974, p. 622, n° 14.
Cass. 9 May 1947, Arr. Cass. 1947, 148, Pas. 1947, I, 193, T.B.H. 1948, 208 and
Revue de la banque 1948, 282.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 23, 1°; J. HANSENNE,
Les biens, I, n° 15; A. KLUYSKENS, Zakenrecht, in Beginselen van Burgerlijk Recht,
Antwerp, Standaard, 1942, V, n° 103; Rép. not., v° Théorie générale de la vente, VII,
n° 105 and 196 ; V. SAGAERT, o.c., in W. FABER en B. LURGER (eds.), Rules for
the transfer of movables. A candidate for European harmonization or national reforms?,
p. 19-23, n° 23-25.
By contrast, this is the case for specific property: article 1302 C.C. provides that
“where property certain and determined which was the object of an obligation perishes, may no longer be the subject matter of legal transactions between private
253
This rule is expressly repeated in Article 1585 C.C.: “Where goods are
not sold in bulk but by weight, number or measure, a sale is not complete,
in that the goods sold are at the risk of the seller until they have been
weighed, counted or measured; but the buyer may claim either delivery or
damages, if there is occasion, in case of non-performance of the undertaking” (free translation).
What does individualisation exactly mean? It seems to emerge from
Article 1585 C.C. that the weighting, numbering or measuring of the sold
goods is not sufficient to transfer ownership. This is the generally defended
viewpoint. However, an (older) judgement of the Belgian Cour de cassation
ruled in another way.214
This judgement has been severely criticized by certain legal scholars.215
Traditionally, one assumes that the individualisation must be performed in
the presence of both parties or their representatives.216 However, more recently, legal scholars accept the validity of a unilateral individualisation.217
It would, according to this opinion, be sufficient that the individualisation
is the expression of the irrevocable intention of the transferor to affect
specified goods to the agreement. From the moment that the transferor
cannot revoke the individualisation in order to appoint other goods as the
object of the contract, the individualisation must be deemed to be accomplished. The fact that the transferee did not participate in that process is
irrelevant.218 It emerges from the judgement of the Cour de cassation, supra,
that case law adheres to this position.219
Authoritative authors defend the viewpoint that identification not only
presupposes the identity of the property but also the intention of the parties
to transfer the identified property. CLOQUET expresses that reasoning as
follows: “L’individualisation suppose non seulement l’identité du bien, mais en
214
215
216
217
218
219
individuals, or is lost in such a way that its existence is absolutely unknown, the
obligation is extinguished if the property has perished or has been lost without the
fault of the debtor, and before he was under notice of default.
Even where the debtor is under notice of default, if he has not assumed fortuitous
events, the obligation is extinguished in the case where the thing would also have
perished in the hands of the creditor if it had been delivered to him” (free translation).
Cass. 3 January 1952, Pas. 1952, I, 225.
J. LIMPENS, La vente, n° 1083; see M. WAELBROECK, o.c., p. 24, n° 10 and the
references he cites.
See the references in G. VAN HECKE, “Le transfert de propriété des choses de
genre”, J.T. 1947, 49.
J. LIMPENS, La vente, n° 1093-1103; M. WAELBROECK, o.c., p. 24, n° 10.
Cass. 3 January 1952, Pas. 1952, I, 225.
254
Belgium
outre la volonté de le confier au futur failli comme corps certain à restituer”.220
This would mean that, with regard to generic goods, a separate real agreement is necessary in order to effect a transfer of property rights in those
goods. However, it seems to us that this view is founded in confusion between the obligatory and the proprietary relation.
It is not clear whether the individualisation creates a distinct agreement. Some authors contend that goods can be apportioned unilaterally by
the seller. Others defend the view that individualisation requires an agreement between the seller and the buyer. For instance, DE PAGE defends
the position that the transfer of ownership, if it has been delayed, does
not deprive the sales agreement of its consensual nature. The transfer is,
according to his view, automatically accomplished at a later moment due
to the sales agreement.221
With regard to commercial sales agreements, the concept of traditio
is prevailing gradually more. Many “commercial law” scholars argue that
ownership is not transferred by the individualisation, but by the delivery
of the sold goods. In other words: the individualisation of the sold goods
would not be sufficient in a commercial sale to pass ownership, delivery
would be necessary. It has indeed become legal practice in some domains of
trade to determine contractually the moment of transfer as that of the moment of delivery.222 This conception has been largely influenced by French
legal scholars.223 Most of the commercial-law-inspired Belgian scholars have
adopted this view,224 but case law remains restricted in accepting such exception.
It is an important fact that Belgian law is influenced by French law as far
as the applicability of the possessory protection with regard to generic goods
is concerned. The protection of the possessor in good faith of generic goods
is, according to French case law, not applicable to unidentified generic
goods: the French Cour de cassation ruled that “la présomption [de l’Article
2279 C.C.] ne saurait s’appliquer à des espèces non individualisés”.225 The
French Supreme Court re-affirmed this judgement in 1989, in ruling that
220
221
222
223
224
225
This was first defended by J. HEENEN, Les ventes maritimes, n° 24bis. See also:
A. CLOQUET, Faillite et banqueroute, Brussels, Larcier, 1985, p. 489, n° 1648; H.
DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 23, 1; L. FREDERICQ,
Principes de droit commercial, Ghent, Feytur, 1946-1954, VIII, p. 678-679, n° 477.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 21B.
See the determining arguments of J. VAN RYN and J. HEENEN, III, n° 674; see
also H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 21B.
See F. GORE, “Le moment de transfert de propriété dans les ventes à livrer”, Rev.
trim. dr. civ. 1947, p. 168, n° 18.
L. FREDERICQ, Droit commercial, III, n° 1422.
Cass. fr. 25 November 1929, Dalloz. Hebd. 1930, I, 3, note.
255
“une action en revendication peut s’exercer sur toutes les catégories de choses,
notamment sur les choses fongibles”.226 The regime of Article 2279 C.C. does
not apply to generic goods which are unidentified, which means that the
actual owner who has been dispossessed can claim restitution. The fact that
those goods are not identified, does not exclude the vindication. Belgian
law has been influenced by this French case law, and some authors adopt
this French legal doctrine.227
9.2.2. Future property
An agreement with regard to transfer of future property is in principle valid.
This emerges from Article 1130 C.C.: “Future goods may be the object of
an obligation. One may not however renounce a succession which is not
open, or make any stipulation with respect to such succession, even with
the consent of him whose succession is concerned. With regard to future
goods, the principle of the transfer solo consensu cannot have any effect
neither” (free translation).
If goods are sold which do not exist at the moment of the sales agreement, transfer of ownership will only be effected at the moment of the
coming into existence of these goods.228 Only from that moment on will the
transferee bear the risk of the goods perishing.229 The most common case
is the one where a person undertakes to accomplish certain works, and he
himself provides the materials he will use. The transfer of property is, in
that case, immediate at the moment that the work to which the contractor
has committed himself has been accomplished. However, the risk of the
goods perishing will only be transferred after their delivery. This follows
from Article 1788 C.C.
9.2.3. Sale of property not (yet) owned by the transferor
Article 1599 C.C. provides that “the sale of property belonging to another
is void: it may give rise to damages where the buyer did not know that the
226
227
228
229
Zie Cass. fr. 7 February 1989, Bull. civ., I, n° 57 and Rev. trim. dr. civ. 1990, p. 109,
n° 3, comment F. ZENATI. For a comment on this decision, see A. LAUDE, “La
fongibilité”, Rev. trim. dr. com. 1995, p. 336 et seq., n° 50 et seq.; M. MALAURIE,
Les restitutions, Paris, Cujas, 1992, 93.
V. SAGAERT, Zakelijke subrogatie, n° 461.
Civ. Antwerp 20 March 1969, Pas. 1969, 340 (sale of a ship in construction); H. DE
PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 23, 3°.
256
Belgium
property belonged to another” (free translation).230 This rule is not difficult to understand, as it emerges from the foregoing consideration that
the transfer of ownership is a constitutive element of a sales agreement.231
As transfer of ownership is not possible if one sells another’s property,
such an agreement cannot be considered a sales agreement. So, it is the
combination of the agreement with the proprietary effects of the agreement
that underlies this rule. The rule applies to both voluntary sales agreements
and to “forced” sales agreements (for instance, sale after seizure). It applies
to both immovable and immovable property.232
The voidness of the sale of goods not (yet) owned by the seller has,
however, relative effects. This means that the voidness can only be argued
by the buyer, and not by the seller or by a third person.233 The seller did
not comply with his obligation to transfer property, so logically he is not
entitled to claim the voidness of the agreement on this grounds.
If the buyer does not argue the voidness of the agreement, the agreement
will not be considered a sales agreement, but rather as an “unnamed agreement” or “agreement sui generis”. The buyer can sue based on the voidness
of the sales agreement, even if he is in bad faith.234 According to the second
sentence of Article 1599 C.C., the buyer is only deprived of the right to
claim damages, but he can still claim the sales agreement is void. The sales
agreement can however be ratified by the buyer, which means that he waives
his right to claim voidness, or by the actual owner of the sold goods.235
The buyer in good faith is entitled to damages, even if the seller was
also in good faith.236 The underlying foundations of this claim are not
clear, but it is mostly defended by the argument that this is the “culpa in
contrahendo”.
230
231
232
233
234
235
236
The original French text providing as follows: La vente de la chose d’autrui est nulle:
elle peut donner lieu à des dommages-intérêts lorsque l’acheteur a ignoré que la chose fût à
autrui.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 21A.; F. LAURENT,
Principes, XXIV, n° 101.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 32, 6°.
Cass. 30 January 1941, Pas. 1941, 1941, I, 24.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 31; F. LAURENT,
Principes, XXIV, n° 123.
Court of Appeal Ghent 3 December 1930, Pas. 1932, II, 56; Court of Appeal Brussels 12 June 1928, Belg. Jud. 1930, 84; H. DE PAGE and A. MEINERTZHAGENLIMPENS, IV, n° 31.
Court of Appeal Brussels 22 October 1993, T.B.B.R. 1995, 46, note I. DEMUYNCK.
257
9.2.4. Agreements subject to a suspensive condition
If an agreement transferring ownership is concluded under a suspensive
condition, it is generally acknowledged that the agreement exists but is
deprived of legal effect until the condition has been fulfilled.237 Not the
agreement itself, but the execution of the obligations subject to the suspensive condition is suspended.238
Most authors defend the view that ownership passes immediately, even
if the condition has not been fulfilled. For instance, in the case of an enforced sale of an asset in a seizure proceeding, the asset can be adjudicated
provisionally to one person, under the suspensive condition that no one
else makes a better offer within a couple of weeks time. Most legal scholars
argue that ownership in this example passes immediately.239
However, it would be inequitable if the transferee had to bear the risk of
the goods at a moment the suspensive condition has not yet been fulfilled.
Therefore, Article 1182 § 1 C.C. expressly provides that “where an obligation was contracted under a condition precedent, the goods that are the
subject matter of the agreement remain at the risk of the debtor who has
bound himself to deliver them only in the case of the occurrence of the
condition” (free translation).
9.2.5. Transfer in execution of an alternative obligation / claim
If a sales agreement contains an alternative obligation with regard to its
object, the transfer of ownership is also delayed. In that case, ownership
will only pass to the buyer after the competent party has made his choice.240
9.3.
Statutory exceptions to consensual transfer
There are, according to the majority opinion, no legal exceptions to the rule
that ownership passes at the moment of the conclusion of the agreement.
This is with the exception that parties can contractually delay the transfer
237
238
239
240
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, p. 46, fn. 7.
Cass. 5 June 1981, Pas. 1981, I, 1149.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, p. 46, fn. 7; E. DIRIX,
“Eigendomsoverdracht bij gedwongen openbare verkoop van onroerend goed”, R.W.
1985-86, 1084; C. ENGELS, Het uitvoerend beslag op onroerend goed, Antwerp, Kluwer, 1981, 256 et seq.
Cass. 22 February 1972, Pas. 1972, I, p. 578, fn. 2; H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 23, 3°.
Belgium
258
of ownership by way of retention of title. However, such agreement is not
assumed if it has not been agreed upon expressly between the parties.
The only case in which transfer is, according to some scholars, delayed
until delivery without any express stipulation is the case of commercial sales
agreements. There is however no explicit legal basis for this exception (if
one accepts it: cf. supra, Part II, 9.2.1).
9.4.
Effect of the transfer between the parties and
in relation to third parties
As stated above, ownership is transferred between the parties from the
moment of the conclusion of the agreement. However, this does not mean
that the transfer is also opposable against third parties by the mere consensus between the parties. Article 1138 C.C., which gives the legal basis for
the consensual transfer, does indeed not concern the opposability of the
transfer of ownership against third parties.
In order to protect third parties (for instance the actual owner), the
Belgian legislator has required some formal requirements for the opposability of the transfer against third parties. As long as these requirements have
not been fulfilled, the ownership of the transferee has a “relative nature”,
meaning that it only exists in relation to the transferor and not in relation
to other parties acting in good faith. The relative effect of the transfer of
ownership in the absence of transfer of possession has been gradually more
emphasized more in legal scholarship.241
It emerges from legal scholarship that the opposability requirements
have a larger scope, because of the critical observations against the general starting point. Legal scholars observe indeed why a legal system that
adheres to legal security as an important value, accepts the transfer on
the basis of mere consensus of intentions, without providing any means of
informing third parties. Third parties can be disadvantaged by a transfer of
which they could not have any knowledge. They can rely in good faith on
the appearances that do not correspond with the legal reality.242
With regard to corporeal movables, this additional formality required
by law is the taking of the possession in good faith by the transferee. Article 1141 C.C. expresses this third-party protection by providing that “if
the property that a person has obliged to give to two different persons is a
corporeal movable, the one who has first been given possession will prevail
241
242
Comp. V. SAGAERT, o.c., in W. FABER en B. LURGER (eds.), Rules for the transfer
of movables. A candidate for European harmonization or national reforms?, p. 18-19, n°.
19-22.
259
and will be considered the owner, even if his title is more recent, provided
the requirement that his possession is in good faith” (free translation). In
other words: if A sells property to B and afterwards A sells the same property
to C and C takes possession, C will be considered the owner on the condition that he acted in good faith, i.e. he did not know and should not have
known of any previous transfer of the same property.
This provision is considered the expression of the general principle that,
as long as the traditio has not been effected, ownership by the transferee is
not opposable against third parties in good faith with a competing right.243
We cannot state however that the transfer is never opposable against
third parties, as only some third parties can argue that the transfer is not opposable against them until the transfer of possession. Third parties without
a competing right and third parties who are not acting in good faith are
not entitled to claim the non-opposability of the transfer until the transfer
of possession.
According to a more modern view, the transfer of possession not only
solves the priority conflict between the creditors of the transferor and the
transferee if the transferor becomes insolvent or is the object of seizure
measures. The issues arising from the insolvency of the transferor or the
transferee are dealt with in more detail in Part II, 13.
If the property is stolen, the same principles should apply: a thief is not
a third-party possessor in good faith with a competing right, so the right to
sue him should belong to the transferee, even if the latter has not yet taken
possession of the property. That would also be the case if a third party were
subject to a claim for unjustified enrichment. We can refer to Part IV, 22.1,
for an analysis of the question who may reap the fruits.
The immediate passing of ownership is however corrected by certain
protective measures in favour of the seller. There are additional rules to
reduce the effect of an immediate transfer in order to protect the interests
of the transferor or third parties. We refer in that respect to the legal lien
of the seller in order to guarantee the payment of the sales price, to the
stoppage in transitu and to the quasi-revindication (Part II, 13.3). Moreover
parties are free to derogate contractually from the immediate transfer of
ownership. We refer to title retention, which is analyzed more in depth in
Part IV, 23.
243
E. DIRIX, “Actuele trends in de zakelijke zekerheidsrechten” in Zakenrecht: absoluut
niet een rustig bezit, Antwerp, Kluwer, 1995, n° 7. In the same sense: J. VANBELLE,
“De revindicatie van onroerende en roerende goederen”, Jura Falconis 1994-95, 31-62.
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260
9.5.
Requirement of delivery / traditio
9.5.1. Introduction
The only undisputed case in which the traditio is necessary for the transfer
of property is the gift from hand to hand (handgift). Delivery is nevertheless
an obligation of the seller and is, or at least in certain cases can be, necessary for the transfer of property by a contract of sale. The rules on delivery
in the matter of a sale apply to barter as well.244
9.5.2. The traditio in gifts from hand to hand
The traditio implies an immediate and irrevocable loss by the disposer
of possession and control over the object of the gift and an immediate
acquisition of the exclusive possession and control over it by the beneficiary.245 If the disposer retains in some way the right to remain in, or
regain, possession of the object of the gift, there is no traditio and no gift
from hand to hand.246 This is for example the case if money is deposited
in a bank account on which the disposer has a power of attorney, so that
he has the possibility to take money from the account.247 An exception to
this rule is made for deposits on the account of minors on which parents
have power of attorney by law.248
The function of the traditio is two-fold. At first it serves to make the disposer aware of the seriousness of his act. It replaces the formal requirements
that have to be fulfilled for the validity of other types of gifts. Whoever
hands over property is more strongly confronted with the consequences
of his act than one who promises to make a gift in the future. Secondly, it
serves to make clear to society who is the present owner of the property.249
244
245
246
247
248
Article 1707 C.C.; H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 616,
p. 676-677.
Comp. M. PUELINCKX-COENE, N. GEELHAND and F. BUYSSENS, “Giften
1993-1998”, T.P.R. 1999, n° 144, p. 875; F. Delporte, De handgift, in Advocatenpraktijk, Antwerp, Kluwer, 1997, n° 45, p. 17; V. SAGAERT, o.c., in W. FABER
en B. LURGER (eds.), Rules for the transfer of movables. A candidate for European
harmonization or national reforms?, München, Sellier, 2008, p. 23, n° 26.
n° 147, p. 877.
n° 146, p. 876; F. DELPORTE, De handgift, n° 48, p. 18.
F. DELPORTE, De handgift, n° 48, p. 18.
261
The question whether a transfer of money from one account to another
constitutes a valid traditio has been the object of vivid debate. However,
at present this question is generally answered negatively because a transfer
from one account to another only implies a replacement of an obligation,
not of movables.250 But, this does not imply that a transfer from one account
to another cannot realise a gift. It can, but this gift is not a gift from hand
to hand, but rather an indirect gift.251 Sometimes it is said that the two
accounts may not be held by the same bank,252 or that the order may not
mention the animus donandi of the disposer.253 However, the fact of depositing money on an account of the beneficiary is a valid traditio.254
The Court of First Instance of Brussels saw a valid traditio longa manu
in the replacement of bonds to bearer from an account of the disposer to
one of the beneficiary. The court pointed out that the bonds to bearer were
clearly identifiable so that there was no analogy with the transfer of money
from one account to another. The fact that the bonds were given in deposit
by the bank was considered to be irrelevant. The deposit does not deprive
the bonds of their character as negotiable instruments.255 The same court
considered the written instruction from a disposer to use money on her account to buy state obligations and transfer these to a beneficiary as a valid
gift from hand to hand.256
There is no traditio if the beneficiary has taken possession of the goods
himself, for example by taking money from an account of the disposer on
the basis of a mandate.257 If the beneficiary claims to have handed over the
money to the disposer after which the disposer has given it back by gift from
hand to hand, he has the burden of proof. This is also the case if he claims
that the disposer told him he could retain the property he held as an agent
or depositee of the gift (Article 2231 C.C.).258
249
249
250
251
252
253
254
255
256
257
n° 144, p. 875.
n° 147, p. 877.
n° 144, p. 877.
H. CASMAN, “Schenkingen en successierechten”, Not. Fisc. M. 1994, n° 7, 8-9, fn. 68.
P. DELNOY, “La qualification de la donation par virement”, R.C.J.B. 1984, n° 12,
p. 234. Contra: H. CASMAN, “Schenkingen en successierechten”, Not. Fisc. M.
1994, afl. 7, 9.
M. PUELINCKX-COENE, N. GEELHAND AND F. BUYSSENS, o.c., T.P.R. 1999,
n° 148, p. 878. Contra: Court of Appeal Mons 17 December 1996, Rev. not. b. 1997, 183.
Civ. Brussels 5 March 1996, R.W. 1996-97, 785.
Civ. Brussels 3 February 1995, J.T. 1995, 343.
Civ. Liège 11 December 1995, Rev. trim. dr. fam. 1997, 213.
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262
Incorporeal property can only be transferred by a gift from hand to hand
if it is incorporated into a document of title. The right is then assimilated
with the title259 so that it is fit for material transfer, traditio.260 The Court of
Appeal of Ghent judged correctly that, as non-printed shares do not exist as
negotiable instruments, they cannot be donated by gift from hand to hand.261
The question arises whether the transfer of non-printed shares to bearer
can be realized by the gift from hand to hand of a scrip to bearer. A scrip is
a piece of paper that incorporates the right to receive a certain number of
shares after they have been printed. As the law does not oppose the transfer
of future shares, scrips to bearer can be given from hand to hand before the
creation of the shares. The answer is that this is indeed possible, although
the scrip does not give a right to enforce the payment in full or the conversion of shares to bearer.262
The validity of the scrip results from the rule that Belgian law recognizes
the right of contracting parties to create by contract “new”, “innominated”
types of negotiable instruments. The basis of this possibility is the principle
of freedom of contract.263 This opens possibilities to transfer all kinds of
incorporeal property by gift from hand to hand.
258
9.5.3. Delivery in contracts of sale
(a)
Generalities
As a consequence of a contract of sale, transfer of property and risk normally take place at the moment of the conclusion of the contract (Article
258
259
260
261
262
263
M. PUELINCKX-COENE , N. GEELHAND and F. BUYSSENS, o.c., T.P.R. 1999,
n° 14, p. 878.
The possession of the title (document) is necessary to be able to demand the execution of the incorporated right.
H. LAGA and V. LIETAER, “Eigendomsbetwistingen bij aandelen” in B. TILLEMAN and B. DU LAING (eds.), Onderneming en effecten, Bruges, Die Keure, 2001,
n° 7, p. 468-469; M. PUELINCKX-COENE, “Giften (1985-1992)”, T.P.R. 1994,
p. 1709, n° 180.
Court of Appeal Ghent 4 October 1995, T.R.V. 1996, 122, comment J. BYTTEBIER;
H. LAGA and V. LIETAER, “Eigendomsbetwistingen bij aandelen” in B. TILLEMAN and B. DU LAING (eds.), Onderneming en effecten, Bruges, Die Keure, 2001,
n° 7, p. 468-469.
P. DE BRUYNE, “Schenking van delen en aandelen”, V & F 1997, 100.
H. LAGA and V. LIETAER, “Eigendomsbetwistingen bij aandelen” in B. TILLEMAN
and B. DU LAING (eds.), Onderneming en effecten, Bruges, Die Keure, 2001, n° 8,
p. 469.
263
1138 C.C. and Article 1583 C.C.). Transfer of property and risk are normally independent of the delivery. But, if the sale concerns genera, transfer
of property and risk only take place at the moment of the individualisation
or, according to a certain opinion, at the moment of the specificatio, i.e. the
individualisation and the irrevocable intention of the seller to attribute
these goods to the execution of the contract with the buyer.264
However, especially in the literature, the opinion gains ground that in
a commercial sale transfer of property and risk take place at the moment
of delivery.265 This rule is based on usage and the common intention of the
parties.266 Case law remains more reserved.267 The rule in any case is one
of supplementary law, which implies that parties can agree that transfer
of property takes place at another moment. During the time between the
conclusion of the contract of sale and the transfer of property, the buyer has
an obligatory right against the seller: he can demand delivery or, in case of
non-performance, damages.268
It is also to be noted that delivery is, even if it is not necessary for the
transfer of property, an obligation for the seller (Article 1603 C.C).
Moreover, it follows from Article 1158 C.C. that the immediate transfer of property and risk at the moment of the conclusion of the contract
only concerns the relationship inter partes.269 For the opposability against
certain third parties, delivery is necessary. It serves to make the transfer of
property public, which is necessary to make the transfer opposable against
264
265
266
267
268
269
A. MEINERTZHAGEN-LIMPENS, IV, n° 23, p. 47. Article 1585 C.C. stipulates
that when goods are sold by weight, number or measure, the sale is not completed
in the sense that the risk remains with the seller until they are weighed, counted
or measured. This article is however interpreted in the sense that the mere fact of
weighing, counting or measuring does not suffice for the transfer of risk and property,
but that individualisation, even specification is necessary (A. MEINERTZHAGENLIMPENS, IV, n° 303, p. 392). It is not necessary that the individualisation takes
place contradictory, in presence of the buyer or his representative (A. CHRISTIAENS, “Article 1605-1607”, n° 8).
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 23, 1°, p. 48 and n° 27
A, p. 56; J. VAN RYN and J. HEENEN, Principes de droit commercial, III, Brussels,
Bruylant, 1981, n° 674, p. 521-523. Contra, at least in the absence of an agreement
between the parties en generally accepted usages, A. CHRISTIAENS, “Article 16051607” in o.c., n° 13.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 27 A, p. 56.
See Cass. 24 April 1987, Pas. 1987, I, 994, n° 498, R.W. 1987-88, 806, note
F. WACHSSTOCK that accepts that ownership had already been transferred before
delivery.
Cf. Article 1585 C.C.
Cf. A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 8.
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264
third parties.270 But, it is not the delivery itself that makes the transfer opposable against third parties. The opposability of property rights against
third parties is based on possession in good faith, which in fact comes into
existence after the delivery.271
(b)
Concept of delivery
In matters of sale, delivery is defined as the transfer of the goods sold to the
control and possession of the buyer (article 1604 C.C.). It is not required
that the seller brings the goods to the buyer; he only needs to leave them
at the buyer’s disposal, so that the buyer can take possession of them. The
buyer has the duty to accept the delivery and collect the goods from the
seller (article 1608 and 1657 C.C.). However, the parties can agree that
the seller has to bring the goods to the buyer.272
Delivery is usually considered a mere factual act. However, this qualification follows from the fact that delivery is in principle not necessary
for the transfer of property.273 But, as we have seen, at least according to a
certain opinion, delivery in the matter of a commercial sale does transfer
property. In this case, delivery seemingly must be considered a legal act,
an act committed with the intention of realising the transfer of property.
(c)
Modes of delivery
Article 1606 C.C. specifies that delivery of movables takes place either by
effective handing over of the goods or by handing over of the keys of the
buildings in which they are situated, and even by the mere consent of the
parties if the transmission (handing over) cannot take place at the moment
of the sale or if the buyer already has the goods in his control. Delivery of
intangible rights takes place either by handing over the title or by the use
thereof by the buyer with the consent of the seller (Article 1607 C.C.).
The enumeration in Articles 1605-1607 C.C. is not exhaustive.274 The
seller satisfies his obligation of delivery if he puts or even leaves the goods
270
271
272
273
274
R. DEKKERS and E. DIRIX, Handboek burgerlijkrecht, II, Zakenrecht, zekerheden,
verjaring, Antwerp, Intersentia, 2005, n° 401, p. 160.
A. CHRISTIAENS, “1604 C.C.” in o.c., n° 4.
H. DE PAGE and A. MEINERTZAGHEN-LIMPENS, IV, n° 117, p. 187.
Court of Appeal Brussels 6 July 1935, Pas. 1936, II, 36; H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 120, p. 197; A. CHRISTIAENS, “Article 1505-1607
265
at the complete disposal of the buyer.275 However, the seller has to give the
buyer the opportunity and the means to take possession of the goods.276
Parties can also agree on the modes of delivery.277
(i)
Factual handing over (traditio)
Factual handing over implies a co-operation between the seller who hands
over the goods and the buyer who takes possession.278 This type of delivery
is common for on the spot sales of goods of moderate size and weight,279
often with a retailer where the property bought is handed over to the buyer
and taken by him.
Traditio is also possible of large amounts of goods that are situated in the
seller’s storage, but this will only be the case if the buyer takes the goods
with him or, at least, sets them apart and marks them so that there can be
no dispute about his possession of the goods.280
A traditio can also be realised by handing over the goods to a third-party
carrier who is charged with collecting the goods.281
Traditio is also the normal way to deliver effects to bearer (shares to
bearer, obligations to bearer, …).
(ii)
Handing over the keys and other forms of symbolic traditio
(aa)
Keys
According to an older opinion, the handing over of keys should not be seen
as a fictitious or symbolic traditio, but as a real factual traditio.282 The present
opinion is that the handing over of keys constitutes a symbolic traditio, as
275
276
277
278
279
280
281
282
C.C.” in Commentaar Bijzondere overeenkomsten, Mechelen, Kluwer, 2002, n° 5 and
n° 30.
A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 5; J. VAN RYN and J. HEENEN,
III, n° 668 et seq., p. 514 et seq.
A. CHRISTIAENS, “Article 1605-1607”, in o.c., n° 5.
A. MEINERTZHAGEN-LIMPENS, IV, n° 120, p. 198; Brussels 6 July 1935, Pas.
1936, II, 63.
F. LAURENT, XXIV, n° 163, p. 165; A. CHRISTIAENS, “Article 1605-1607” in
o.c., n° 6.
A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 6. See also J. VAN RYN and
J. HEENEN, III, n° 670, p. 518.
A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 6.
F. LAURENT, XXIV, n° 163, p. 165-166.
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266
the seller does not deliver the goods themselves but only delivers the means
that enable the buyer to take possession.283
The symbolic traditio has the same effect as the real factual traditio and
offers the buyer the protection of Article 1141 C.C. against a subsequent
buyer on condition that the buyer actually takes possession of the goods.
To avoid disputes, the buyer should externalise his taking into possession
of the goods, for instance by marking them.
(bb)
Documents of title
The seller can also realise a symbolic traditio by sending to the buyer the
titles or the objects that symbolise the goods.284 It involves a bill of lading
(cognossement) in the case of transport by sea, a consignment (vrachtbrief)
in the case of transport by road and other documents that attribute to the
holder an exclusive right to the goods.285 If the goods are still en route,
delivery takes place by endorsement of the title that represents the goods.286
There is neither national legislation nor case-law on electronic versions
of these documents of title. The application of the CMI Rules on electronic
bills of lading is considered difficult or even impossible.
A first problem is that the CMI Rules will be made applicable by referring to them, while Belgian law requires that general conditions are communicated in extenso. This problem can be solved by concluding a contract
that contains the clauses in extenso and by which the parties agree that these
rules can then be made applicable to future dealings by referring to them.
But, there are other problems.287
The CMI Rules do not contain provisions on secure transmittal of the
data in the electronic bill of lading to third parties, such as insurance companies; if the holder and the transporter do not agree on the content of the
electronic data, neither of them can prove which data are the correct ones.
The CMI Rules contain a certain incentive to a solution by stipulating
that an Electronic Monitoring System (EMS) can be used. They do not,
however, concretise the application of this EMS.
Further, the CMI Rules do not pay enough attention to problems of
security. The delivery of the goods is subject to a secret key, but the CMI
283
284
285
286
287
A. CHRISITAENS, “Article 1605-1607” in o.c., n° 15.
J. VAN RYN and J. HEENEN, III, n° 669, 2°, p. 517.
F. STEVENS, Vervoer onder cognossement in Bibliotheek Handelsrecht Larcier, Transportrecht, Brussels, De Boeck & Larcier, 2001, n° 173, p. 99.
267
Rules do not define a safe way to communicate this secret key to the shipper
and subsequent holders of the electronic bill of lading.288
The BOLERO system, which offers the possibility of using electronic
bills of lading, gives the impression of a more solid solution. The BOLERO
Users enter into a Service Agreement in which they oblige themselves to
the Bolero Administrators and the BOLERO Users to follow the BOLERO
Rules (Rule Book and Operational Rules). The theory of autonomy of will
on which the Belgian contractual system is (largely) based allows the BOLERO Users to conclude such a contract and considers them bound to it.
A BOLERO bill of lading is created and transferred as follows. A seller
concludes a transport contract with a shipper. The contract can be concluded trough the BOLERO system or by traditional means. The transporter
creates, for the shipment, a BOLERO bill of lading in the BOLERO database, the Title Registry. He registers himself as “Originator”, the seller as
“Shipper” and “Holder” and the buyer as “To Order party”.
As soon as the seller has received payment, he instructs the Title Registry
to replace his own name with that of the buyer as “Holder” of the bill of lading. The buyer can subsequently endorse the bill of lading to a new “To Order
party” or to “bearer”. He can make the new “To Order party” immediately
“Holder”, enabling him to transfer the bill of lading, but he may also wait for
payment to make him “Holder” of the bill of lading. When a “Consignee” is
indicated, the bill of lading may no longer be transferred except by “Amending” the bill of lading. For this, the transporter’s consent is needed.289
(cc)
Other forms of delivery
The buyer can also realise the traditio by handing over written permission
to log.290
Affixing a sign on the goods is generally considered an indication that
the buyer has taken possession of the goods.291 A minority opinion points
out that the stamp or other sign the buyer may use to mark the goods only
proves the sale of individualised goods, and implies that the risk has transferred to the buyer. Whether it indicates delivery would depend on the
circumstances of the case and on local usage.292
288
289
290
291
292
F. STEVENS, o.c., n° 175 et seq., p. 99 et seq.
F. STEVENS, o.c., n° 183, p. 104-105.
F. LAURENT, XXIV, n° 167, p. 167.
A. KLUYSKENS, De contracten, n° 90, p. 111-112.
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268
In response, the defence is that the sign of the buyer on trees to be felled
for his account is considered a symbolic delivery.293 However, the Court of
Appeal of Brussels and the Commercial Court of Tournai judged that delivery
is not completed if the marked trees are situated on enclosed property and
the seller is the only person who could obtain access from the neighbours.294
In sales of animals in the cattle-market, the mark of the buyer is considered a sign of delivery even if the animal still forms part of the herd of
the seller.295
(iii)
Mere consent
The Civil Code mentions two cases in which delivery can take place by the
mere consent of the parties (solo consensu): 1) when traditio is not possible
at the moment of the sale; 2) when the buyer already has control over the
goods in another capacity. A third situation that gives rise to delivery solo
consensu is when there is an agreement between the parties to the sale that
the seller in the future will exercise possession over the goods as a detentor
for the buyer (constitutum possessorio).296
(aa)
Impossibility of delivery at the moment of sale
If the object of the sale is a future harvest, delivery will not be possible
at the moment of the sale. Delivery will take place at the moment of the
harvest. The buyer is responsible for choosing the best time to harvest and
take away the fruits.297 Another example that is given, is the situation in
which the goods are not present at the place of the sale, and the conclusion
of the contract of sale implies the authority to pick up the goods.298
This type of delivery solo consensu does not have all the consequences
of the before-mentioned types of delivery. Delivery solo consensu differs from
the previously mentioned types of consensus in that it does not “materialise”
the transfer of either the property or possession of it. In the eyes of third
parties, the goods remain in control of the seller. For this reason, delivery
293
294
295
296
297
298
Court of Appeal Brussels 6 July 1935, Pas. 1935, II, 63; F. LAURENT, XXIV, n° 167,
p. 167.
Court of Appeal Brussels 6 July 1935, Pas. 1935, II, 63.
A. CHRISTIAENS, “Article 1605-1606” in o.c., n° 17 with reference to Civ. 8
February 1973, R.W. 1973-74, 1171.
A. CHRISTIAENS, “Article 1605-1606” in o.c., n° 17 referring to Com. St.-Niklaas
28 October 1969, R.W. 1972-73, 1047.
A. CHRISTIAENS, “Article 1605-1606” in o.c., n° 17; F. LAURENT, XXIV, n° 164,
p. 166; A. KLUYSKENS, De contracten, n° 89, 3°, a in fine, p. 111.
269
solo consensu is not considered a delivery in the sense of Article 1141 C.C.,
i.e. a delivery that makes the property right of the buyer opposable against
third parties, meaning that a subsequent buyer will not be able to acquire the
property on the basis of a second contract of sale concluded by his seller.299
The question arises whether, in the case of sale of a future harvest, any
better “delivery” is really possible. It seems that the buyer of the future harvest could place a sign on the field indicating that he has bought the future
harvest; a refusal of this by the seller should then be considered a violation
of the rule that good faith is required in the execution of a contract (article
1134 § 3 C.C.).
(bb)
Seller’s control over the property in another capacity
If the seller already has control over the goods in another capacity, delivery
can only take place by inversion of the possession. The possession the buyer
acquires is protected by Article 1141 C.C. A person who starts to possess
for another, pro alieno is considered to continue to possess pro alieno, unless
he proves the contrary (Article 2231 C.C.). The title that evidences the
inversion of the title is thus very important.300
(cc)
The seller’s continued possession of the property by agreement
The agreement between seller and buyer, according to which the seller
will remain in possession of the goods after the sale, is called a constitutum
possessorio. The seller continues to possess the goods, but he will no longer
possess them as an owner animo domino and for himself, pro suo, but rather
he will possess them for the buyer.
The delivery takes place solo consensu, by an inversion of the title of
the seller. One pretends that the goods were handed over by the seller to
the buyer, who then gave them back to the seller in the capacity of lessee,
depositee, …
Possession transferred constitutum possessorio is not real possession in
the sense of Article 1141 C.C. as third persons are not on notice that an
effective transfer of possession took place.301 The sold goods stay in control
of the seller who can resell them and can effectively hand them over to a
second buyer. However, a second buyer will only be protected by Article
1141 C.C. if he is in good faith.302
299
300
301
302
A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 19; A. KLUYSKENS, De contracten, n° 89, 3°, a, p. 111; F. LAURENT, XXIV, n° 164, p. 166.
A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 20-21.
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270
(iv)
Delivery of intangible rights
(aa)
Generalities
It is not possible to have possession of intangible rights in the normal sense
of the word. The Civil Code mentions possession of claims, but this has a
totally different meaning than the meaning of possession in general property law.303 Delivery of intangible rights takes place either by handing over
the title or by the use the buyer makes thereof with consent of the seller
(Article 1607 C.C.). However, other modes of delivery are possible.
The use the buyer makes of a right is not a real act of transfer but rather
an indication of the fact that delivery has taken place. Delivery in fact
takes place solo consensu. This is, for example, the case when the person
who has the right to use an industrial, literary or artistic creation sells his
right of use.304
Given the intangible nature of the property concerned, the buyer cannot materially take possession of the property; it follows that Articles 1141
and 2279 C.C. cannot apply.305 Transfer of intangible property has immediate effect, both between the parties and against third parties. The third
possessor who acquired the intangible property in good faith a non domino
is not protected against claims of the previous buyer or any other verus
dominus.306
(bb)
Special rules
Assignment of claims is treated in the Chapter entitled “Sale” in the Civil
Code. Assignment of claims differs from sale in that the transfer of an obligation does not always take place for a price, but can also take place gratuitously. Whoever sells the active side of an obligation or other intangible
right, needs only to guarantee its existence; one does not need to guarantee
the solvency of the debtor (Article 1693-1694 C.C.). The assignment is
303
304
305
306
Article 1240 C.C. provides that “payment made in good faith to one who was in
possession of the claim is valid, even if the possessor is afterwards dispossessed” (free
translation). Possession means in this provision that one emerges toward the debtor
of the claim as if one was the owner of the claim. For instance: the assignor of a claim
remains the possessor of it as long as the assignment has not been notified to him.
Cass. 10 July 1890, Pas. 1890, I, 259; Cass. 11 October 1985, J.T. 1986, 290, R.W.
1986-87, 453, note; A. CHRISTIAENS, “Article 1605-1607”, in o.c., n° 31; J.
VAN RYN and J. HEENEN, Principes de droit commercial, I, Brussels, Bruylant, 1976,
n° 436, p. 398.
Cf. A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 31.
271
only opposable against the debtor if notice is given to him or if the assignment is recognized by him (Article 1690 C.C.).
Transfer of registered securities is completed by the mere consent of the
parties concerning the securities and the price (Article 1583 C.C.). As long
as the transfer is not registered, transfer between non-commercial parties
has to be proven in conformity with the Articles 1341, 1437 and 1348
C.C. To complete his obligation of delivery, the seller has to co-operate in
the modification of the register. Property of registered shares is proven by
registration (cf. Article 465 Company Code).
A business can be defined as a factual generality of property with a common destiny, i.e. the acquisition and preservation of clientele that make the
business profitable. Although the business contains, apart from intangible
property such as clientele, business name, contract for rent etc., tangible
property such as furniture, it is considered intangible property. And because
it can be replaced, the business is considered a movable. Transfer of property and risk take place by mere consent concerning the property and the
price (1583 C.C.).
To make the sale opposable against third parties, for each element of the
business the suitable requirements have to be fulfilled. For the immovable
elements, the requirements of Article 1 Mortgage Law have to be fulfilled,
for obligations the rules of Article 1690 C.C. etc. For most cases of transfer
of a business, special requirements have to be taken into account to make
the transfer of the business opposable against the tax administration.307
After the death of the decujus, every heir can transfer his rights to succession gratuitously or for value. What is transmitted is not the property,
but the rights of the heir to the succession (Article 1696-1698 C.C.).
Special rules exist for transfer of copyright (Article 3 Law of 30 June
1994 on copyright and neighbouring rights), transfer of a trademark (Article 11 Uniform Benelux Law 19 March 1962 on marks), transfer of a right
to a design or a model (Article 13 and 22 Uniform Benelux Law of 25
October 1965 in designs and models), and transfer of a patent (Article 44
Law of 28 March 1984 on Patents).
(v)
Particularities
The buyer to whom the property is not delivered in the way defined by
the parties, or recognised by law, but who nevertheless has control over
the property, does not have possession in the sense of Article 2279 C.C.308
307
308
Article 442 bis Code of Income Taxes.
Cf. Court of Appeal Antwerp 12 February 2001, R.W. 2001-02, 603, which demands
incorrectly a delivery in one of the forms mentioned in article 1606 C.C. forgetting
that this article does not contain an exhaustive enumeration.
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272
(d)
Delivery and the opposability of the transfer
against third parties
Opinions diverge about whether delivery alone or delivery and possession
in good faith are required for the transfer by sale to be opposable against
all third parties in good faith, rather than only against a later acquirer of
rights to the goods.
The opinion that delivery and possession in good faith are required
to make the transfer opposable only to the later acquirer, implies that the
transfer has a third party effect on the creditors of the seller from the moment of the sale. The seizing creditors of the seller may, on the basis of
Article 2279 C.C., presume that all the goods they find in possession of
their debtor belong to him. However, they have to respect the contracts
their debtor concluded before the seizure.309 The same is true for the bankruptcy trustee.310
In reverse, the creditors of the buyer can realise their claims against
goods of the buyer at the conclusion of the contract or by the specification,
even if the goods have not yet been delivered.311
The requirement of delivery is only required in the relationship between
a first and a later acquirer of a property right to the goods, the first buyer’s
ownership is only opposable if he had effectively received the possession of
the goods. This is true also in the relationship between consecutive buyers
and between a buyer and a pledgee of the goods.312
The second opinion requires delivery and good faith possession to make
the transfer opposable against any third person having competing rights to
the goods.313
9.5.4. Real agreements
Belgian law has a consensual system of transfer of ownership, as elaborated
in Part II, Chapter 9. Hence, ownership passes immediately and the law
does not require a separate agreement for ownership to pass.
Belgian law is generally not familiar with a “real agreement” in the sense
of an agreement separate from the underlying obligation (e.g. contract), which
is necessary to effect the transfer of ownership. The term “real agreement” is
309
310
311
312
313
A. CHRISTIAENS, “Article 1605-1607” in o.c., n° 10; Cass. 24 April 1987, R.W.
806, note F. WACHSTOCK.
273
used for agreements which only come into existence after the traditio of the
object of the agreement, but which do not necessarily have proprietary effects.
For instance, a loan agreement only comes into existence at the moment the
object of the loan is put into the hands of the debtor, not by the mere agreement between the parties. If the loan agreement does not involve consumable
goods, it does not transfer any property right.
Another example is a contract of deposit, which only comes into existence at the moment the depositary is given the physical control over the
object of the contract of deposit. The “agreement” between the parties
does not give rise to a contract of deposit, but only to a promise to give an
object in depositu. This agreement is binding upon parties as an agreement
sui generis, but does not have any proprietary effect: the depositary does
not become owner or possessor, but merely holder (‘detentor’) of the asset
which is given in deposit.
However, we have already indicated that the consensual nature of the
system does not prevent some authors from making a distinction between
the obligatory agreement and the real agreement. The consensual transfer
system in Belgian property law could indeed be translated in terms of a
“traditio-system” in which the real agreement is implicitly included so that
ownership normally passes immediately.
We refer for the historical foundations of this distinction to supra,
Part II, Chapter 9.1. It largely demonstrates that the distinction between
consensual systems of transfer and systems requiring delivery is not as sharp
as it is often indicated.314
9.6.
Registration
There is registered movable property. This is expressly stated with regard
to sea ships and other boats.315 Cars have to be registered, but this registration is of a totally different nature than with regard to sea ships and boats.
Aircrafts are also subject to a different regime.
9.6.1. Sea ships
Article 2 of the Sea Act of 11 June 1874 provides that sea ships are movable property. However, they are not subject to the rule according to which
possession gives title. Article 8 of the same Act provides that all titles and
judgements which evidence an agreement to vest, transfer or declare void
314
315
C. LEBON, l.c., p. 438, n° 28.
Article 2 of the Sea Act of 11 June 1874.
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274
a property right (with the exception of a lien) on a sea ship that already
exists, or is in construction, have to be registered in the registry for sea
ships. They cannot be opposed against third parties if this registration has
not been effected.
The functioning of the registry for sea ships is analogous to the functioning of the mortgage registry (for immovables): transfer of property rights
can be effected without registration, but the transfer has only a relative
nature – e.g. has no third-party effect – if registration is not effected. We
can thus conclude that the registration is constitutive in order to give an
absolute nature to the rights of the transferee in relation to third parties
with competing rights.
Contrary to the mortgage registry, private deeds can be registered in
the registry of sea ships; a sea ship can even be registered by telegram. In
contrast, in the mortgage registry, only authentic deeds (notarial deeds,
deeds of public offices, etc.) can be registered.
Sea ships can be burdened with a mortgage, not with a pledge (which
is normally the case for movables).316 It must furthermore be taken into
account that the sale of ships is subject to specific rules, emerging from
commercial practice and costumes.
9.6.2. Aircrafts
Although aircrafts are subject to registration, they are considered to be
movable property. The registration of aircrafts is provided by the Royal
Decree of 15 March 1954,317 in execution of the Act of 27 June 1937.318
This registration only determines the (Belgian) nationality of the aircraft,
but not its proprietary status.
Contrary to most neighbouring countries,319 Belgian security law contains no specific provisions on the vesting of real security rights in aircrafts.
316
317
318
319
Article 25 of the Sea Act of 11 June 1874.
Belgian Official Gazette 26 March 1954.
Belgian Official Gazette 26 July 1937.
For instance French law provides the possibility to mortgage an aircraft: “Les aéronefs, tels qu’ils sont définis à l’article L. 110-1, ne peuvent être hypothéqués que par la
convention des parties. L’hypothèque grève, dès lors qu’ils appartiennent au propriétaire de
l’aéronef, la cellule, les moteurs, hélices, appareils de bord et toutes pièces destinées de façon
continue au service de l’aéronef, qu’elles fassent corps avec lui ou en soient temporairement
séparées” (L122-1 Code de l’aviation civile). For an analysis: J.-P. LE GALL and S.
REEB, “Highlighting various Tax and Security Law Aspects of Aircraft Financing –
France”, Air & Space Law 1992, 87-89. For Dutch and German law, it can be referred
to the contributions of P. HONNEBIER and E.-M. KIENINGER.
275
In 1990 the government introduced a very elaborate act into parliament,
introducing the possibility to create a mortgage on an aircraft.320 But this
act has never been adopted due to political circumstances. Therefore the
common forms of real security rights are to be applied to the asset-based
financing in the aviation industry.321
9.6.3. Cars
In Belgian law (contrary to French law), cars have to be registered according to the Royal Decree of 20 July 2001.322 This legislation however does
not deal with the proprietary status of the car. Article 8 (natural persons)
and Article 9 (legal persons) determine that the public registry must mention the name of the person who makes the request for registration. However, according to Article 10 of the Royal Decree, the request can be made
either by the owner or by the user of the car. The registry does not mention
who is the owner of the car. It has mainly administrative and insurance
purposes. Cars can thus not be considered registered property, as is the case
for sea ships, and remain subject to Article 2279 C.C. A professional buyer
cannot gain from this protection, as he is not to be considered in good faith,
if he did not ask for the invoice for the purchase.323
However, and again contrary to French law, Belgian law does not provide for specific provisions with regard to the registered pledge on cars. The
pledge of cars can only be effected through a dispossession.
9.7.
Requirement of payment for the transfer of property
9.7.1. Principle: transfer of property does not require payment
In principle, property rights pass at the moment the contract of sale is concluded (specific goods) or at the moment the goods have been identified
(generic goods). The payment of the price is not a condition for the transfer
320
321
322
323
Not only the mortgage on an aircraft, but also a non-possessory lien and the seizure of an aircraft were governed in the enactment (Parl. Doc., Ch. Repr. 1990-91,
n° 1297 / 1).
For an overview: W. GORIS and G. JAKHIAN, “Security rights in aircraft under
Belgian law”, Air & Space Law 1992, 61-67; V. SAGAERT, “De Unidroit-Conventie
betreffende internationale zakelijke rechten op roerend uitrustingsmaterieel” in Artikelsgewijze Commentaar Voorrechten en Hypotheken, Antwerp, Kluwer, 2002, n° 2-4.
Belgian Official Gazette 8 August 2001.
I. SAMOY, “Financieren op eigen risico?”, T.B.B.R. 2000, 238-247.
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276
of property. We refer to Part II, Chapter 9.7, for an in depth analysis of the
consensual system of transfer in Belgian law.
9.7.2. Exception: possibility of contractual deviation
The law provides the possibility for the parties to agree that the transfer of
property is postponed until the price has been paid.324 On the effects hereof
as to third parties, see infra, Part IV, Chapter 23.
9.7.3. Property related consequences of non-payment
(a)
Contract of sale
(i)
Right to withhold performance
Unless the parties to a sale stipulate otherwise, payment and delivery
should take place at the same time.325 Article 1612 C.C. provides that the
seller does not have to deliver if the buyer does not pay the price and has
not acquired a term for payment. However, in commercial transactions
(between two professionals), the Act of 7 August 2002 provides for a legal
term of payment of 30 days from the moment the invoice is sent or – if the
invoice is sent before the accomplishment of the work or the delivery of
the goods – from the moment of delivery.326
If the buyer sues the seller in order to force him to deliver, the seller can
invoke the exceptio non adimpleti contractus, a means of defence consisting
in the argument that the buyer has not performed his obligations under the
contract of sale. The seller cannot invoke this defence if he has given the
buyer a term for payment. However, the buyer loses the benefit of the term
in case of bankruptcy or insolvency (Article 1188 C.C.). This implies that
the seller may refuse delivery regardless of the term for payment, unless the
buyer offers a security that the price will effectively be paid at the end of the
term (Article 1613 C.C.). As the delivery mostly coincides with identification, which is the moment in which property rights of generic goods pass,
transfer of property can be postponed in case of non-payment.
324
325
326
Article 4 of the Act of 2 August 2002 with regard to the combat of late payment in
commercial transactions, Belgian Official Gazette 7 August 2002. This Act implements the European Late Payment Directive (n° 2000 / 35 of 29 June 2000).
(ii)
277
Quasi-revindication
Article 20, 5°, paragraph 6 Mortgage Act confers an improper right of
revindication on the non-paid seller of a movable that has been sold without a payment term. As long as the seller has not received payment, the
seller can, within eight days from delivery, revindicate the movable from
the buyer on the condition that it is still in the same state and has remained
in possession of the buyer.
The improper revindication is a kind of post-delivery exceptio non adimpleti contractus. As long as the seller has not been paid, he can refuse delivery; if he has already delivered, he can, within the frame of Article 20 Mortgage Act, revindicate the movable. The revindication is called improper
because the seller is, as a consequence of the principle of consensualism,
no longer the owner of the good. We refer for this quasi-revindication to
Part II, Chapter 13.3.2.
(iii)
Right to terminate the contract
According to Article 1654 C.C., the seller who has not received payment
can sue the buyer to terminate the contract. The contract is deemed never
to have existed and the property is deemed never to have passed. However,
this does not prevent a third party in good faith from acquiring property
rights in the property, even though he has acquired it from a non-owner,
on the basis of Article 2279 C.C.327
(b)
Other contracts
Also, in other contracts such as contracts of settlement and barter, nonpayment can give rise to the remedy of the exceptio non adimpleti contractus
and the right to terminate the contract (article 1184 C.C.).
It is not clear whether the seller’s privilege can be extended to barter. A
negative answer to this question seems to result from the combination of the
rules that the privilege constitutes an exception to the general principle of
the equality between the creditors (Article 7-8 Mortgage Act) and the rule
that exceptions have to be interpreted strictly. However, the opinion has been
defended that exceptional rules can nevertheless be extended to other cases
than those explicitly foreseen in the exceptional rule, if the reasons that led
to the adoption of the exceptional rule are also present in the other case.328
327
328
Cf. infra, Part III, Chapter 18.
Comp. X. DIEUX, “Observations sur l’article 1794 du Code civil et sur son champ
d’application”, (note sous Cass. 4 septembre 1980), R.C.J.B. 1981, 528 et seq.
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278
10.
Double / multiple selling
What are the consequences of double selling, i.e. if person A sells a movable object to B and subsequently sells the same object to C? In principle,
the conclusion of a contract of sale causes the transfer of the ownership of
the property sold from the seller to the buyer. It follows that, at the moment the second contract is concluded, A is no longer the owner of the
sold property. However, the mere conclusion of the contract suffices only
to create the transfer of ownership inter partes; to make this transfer opposable against third parties in good faith, the property has to be actually delivered
to the buyer.329 The reason hereof is that third parties can assume that the
movable property belongs to the person that has the possession of it.
If the object of the sale has been delivered to B before the contract
with C is concluded, B’s ownership is opposable against C, and C cannot
acquire the ownership of the property sold to him. However, this does not
imply that the contract of sale between A and C is absolutely void. It is
only voidable at request of C. This is so even though Article 1599 C.C.
stipulates: “The sale of another’s property is void: it can constitute a cause
for damages, when the buyer did not know that the property belonged to
another” (free translation). Consequently, C has a choice. He can file an
action to declare the contract void and to be compensated for the damage
he suffered because of the sale of the property of which A was no longer the
owner. Alternatively, he can file an action for compensation because A did
not and could not deliver the property of the sale to C.
If the property was not yet delivered to B and A gives possession of the
property to C, then B’s ownership was not yet opposable against third parties in good faith, and C will, if he is in good faith, acquire the ownership
of it. This is an application of Article 1141 C.C., which provides that “if
the asset which a person has obliged to give to two different persons, is a
corporeal movable asset, the one who has first been given possession will
prevail and will be considered owner, even if his title is more recent, upon
the requirement that his possession is in good faith” (free translation). The
contract between A and B was validly concluded and remains valid. B only
has the possibility to claim compensation from A for non-execution of his
obligations.
The buyer is considered to be in good faith if he neither knows nor
should know that the seller does not own the property sold. If C was not
acting bona fide when concluding the contract of sale, i.e. if he knew or
should have known that A was no longer the owner, he will not acquire
the property of the good sold, whether or not it was still in possession of
the seller at the moment of the sale.
329
Article 1141 C.C.
11. Rules for “selling in a chain”
11.
279
Rules for “selling in a chain”
Selling in chain means that person A sells goods to B, the latter sells those
goods to C and A immediately delivers the goods to C. According to the
consensual system used in Belgian law, B has become owner of the goods
at the moment of his purchase, and C has become owner at the moment
that he has purchased the good from B.
However, the principle of consensualism – as we have seen – does not
come into play in relation to third parties. Delivery is necessary to make
the sales agreement opposable against third parties. What happens if B is
subject to an insolvency proceeding? This insolvency necessarily interferes
after the second sales agreement, as B no longer has a right to dispose of
the goods from the moment of his insolvency. If B does not comply with
his obligation to pay the purchase price, A will be entitled to exercise his
legal lien (Article 20, 5° Mortgage Act) on the sub-sale price owed by C to
(the trustee of) B, as long as the latter is identifiable. A will however not
be entitled to exercise his right of retention vis-à-vis C.
12.
Transfer or acquisition by indirect representation330
Indirect representation means that a person (the agent or other intermediary) acts in his own name, but on the account of another person (the
principal), in contracting with a third party. The legal effects of indirect
representation must, according to the prevailing view, be separated: the
obligatory effect arises in a totally different way than the proprietary effect. The coinciding of the obligatory and proprietary effects, inherent in a
consensual system, does not apply in case of indirect representation.
12.1.
Contractual rights and obligations
The basic rule is that, in case of indirect representation, the contractual
rights and obligations exist between the intermediary and the third party.
As the intermediary does not reveal the identity of the principal to the
third party, it would be unacceptable not to allow the third party to execute
his contractual rights against the estate of the intermediary. The third party
can indeed not assess the (in)solvency of the represented person. Likewise,
the intermediary is not permitted to argue that he acted within the frame330
For an elaborate analysis of indirect representation: see I. SAMOY, Middellijke vertegenwoordiging. Vertegenwoordiging herbekeken vanuit het optreden in eigen naam voor
andermans rekening, Antwerp, Intersentia, 2005, 762 p.
280
Belgium
work of representation in order to escape liability.331 There is no contractual
relationship between the principal and the third party. As a consequence,
the third party will not be able to immediately sue the principal.332 Conversely, the third party will not be able to claim against the principal if the
latter does not comply with his contractual obligations.333
The inability of the principal and the third party to bring claims against
each other has been criticized by legal scholars. The situation does not meet
practical needs.334 For instance, it would not harm the interests of the third
party if he could be directly sued by the principal and forced to comply
with his contractual obligations The third party should be indifferent to
the question whether he is sued by the intermediary or by the principal.
Therefore some authors have argued in favour of a direct action by the
principal against the third party. They argue that such action is justified
on the grounds that reality must always prevail over appearance, and the
reality is that the principal has become owner of the contractual rights.335
Therefore, legal scholars have emphasized indirect ways to bring claims
between the principal and the third party, using elements of the general
law of obligations. One of those elements is the “action oblique / zijdelingse
vordering”, included in Article 1166 C.C.
This Article provides that creditors may exercise their debtor’s rights
and actions, except for those exclusively dependent on the person. Moreover, the intermediary can assign the rights he has against the principal
to the third party and, conversely, the intermediary can assign his rights
against the third party to his principal.336 According to some scholars, even
a claim of unjust enrichment would enable the third party to claim against
the principal.337 However, the latter view is doubtful. The third party can-
331
332
333
334
335
336
337
Cass. 17 April 1848, Pas. 1848, I, 387; H. DE PAGE and. R. DEKKERS, V, 436.
F. LAURENT, Principes, XXVIII, 52.
H. DE PAGE and R. DEKKERS, V, 436.
I. SAMOY, “‘What’s in a name?’ Het ‘in naam van-vereiste’ bij de vertegenwoordiging
vier jaar na Schoordijk”, T.P.R. 2004, p. 570, n° 6.
G. BELTJENS, Code civil annoté, article 1998 C.C., 130; I. SAMOY, ‘What’s in a
name?’ Het ‘in naam van-vereiste’ bij de vertegenwoordiging vier jaar na Schoordijk”, T.P.R. 2004, p. 573, n° 7.
It is even argued that the principal can oblige the intermediary to assign his rights
against the third party. Article 1993 C.C. provides indeed “that very agent is bound
to account for his management, and to return to the principal all that he received
by virtue of his power of attorney, even where what he received was not owed to the
principal” (free translation).
B. TILLEMAN, Lastgeving, in Algemene Praktische Rechtsverzameling, Ghent, StoryScientia, 1993, 276; H. DE PAGE and. R. DEKKERS, V, 437.
281
not argue that the intermediary has been enriched without legal grounds,
as the enrichment has its foundation (“causa”) in a contract.338
12.2.
Transfer of property rights
From a proprietary point of view, there is no difference between direct representation and indirect representation. The property rights, which are transferred pursuant to the agreement, immediately pass between the principal
and the third party. The intermediary does not become owner, not even for
a second. One of the main effects of the direct transfer is that the insolvency of the intermediary does not harm the position of the principal. If, for
instance, the intermediary has bought goods in his own name, but for the
account of the principal, the latter will be able to vindicate the goods from
the insolvency estate of the intermediary, even if the intermediary were still
in the possession of the goods at the moment of his insolvency.
This starting point is confirmed in Article 103 of the Bankruptcy Act,339
which provides that commercial goods deposited with the bankruptcy debtor, or given in “consignation” to the bankruptcy debtor, in order to be sold
for the account of the principal, can be vindicated, as long as they are fully
or partly in natura in his possession.
This immediate transfer is of course subject to the same requirements as
the general conditions of transfer. If the agent has bought fungible assets,
which have not yet been specified for the contract at the moment that the
agent becomes subject to an insolvency proceeding, the ownership will not
have passed to the principal. By consequence, the latter will be subject to
the risk of the insolvency of his agent.
13.
Insolvency of the transferor or transferee
13.1.
General considerations
There is a general provision in Article 46 of the Bankruptcy Act conferring on the insolvency administrator the right to terminate the agreements of the bankruptcy debtor. This Article provides that the insolvency
administrator, after the acceptance of his task, must immediately decide
whether he will continue the agreements that have been entered into by
the bankruptcy debtor before the bankruptcy and that are not terminated
ipso facto by the bankruptcy. The other contracting party can request that
338
339
F. LAURENT, Principes, XXVIII, 64-65; I. SAMOY, l.c., p. 459, n° 5.
Act of 8 August 1997, Belgian Official Gazette 28 October 1997.
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282
the insolvency administrator make his decision within fifteen days. If the
insolvency administrator does not make a decision within the period of
fifteen days after the request, the agreement is terminated and the damages
pursuant to the termination are included in the bankruptcy estate.
This right to terminate agreements is to be qualified from a legal point
of view by a confirmation from the insolvency administrator that the debtor
had not complied with his contractual obligations. This gives rise to a claim
for damages, which can be introduced by the other contracting party in the
bankruptcy proceeding. The decision of the bankruptcy trustee does not in
itself rescind the agreement, but gives rise to all the conditions necessary
to enable the rescission of the contract.
The agreements that are entered into intuitu personae on the part of the
bankruptcy debtor are automatically terminated by the bankruptcy judgement. This is, for instance, the case for a credit agreement.
13.2.
Protection of the transferee against insolvency
of the transferor
If the transferor opens insolvency proceedings, and the transfer of ownership has not been contractually delayed, the position of the transferee is
unclear. The insolvency administrator will not be entitled to appeal to
Article 46 of the Bankruptcy Act in order to rescind the agreement and
re-transfer the property to another person (at a higher sales price).340
The position of the purchaser of property that has not yet been delivered at the moment of insolvency is, however, debated. According to the
traditional opinion, the transferee is in the position of a holder of a proprietary right and will escape the insolvency. As the property is excluded
from the insolvency estate at the moment of the consent by the parties to
the contract, the purchaser does not bear any risk. He will be able to claim
property rights to the goods and will not be subject to the rule of equality
of creditors. This is the normal application of the transfer solo consensu.341
The same would apply to fungible goods that have been identified before the opening of the insolvency proceeding.342 If these goods had not
been identified before, they would be included in the insolvency estate.
This would mean that the transfer is opposable against the insolvency by
the mere agreement between the parties, even if the transferee has not yet
taken possession.
340
341
342
E. DIRIX, “Faillissement en lopende overeenkomsten”, R.W. 2003-04, p. 208, n° 20.
Court of Appeal Ghent 1 September 1986, T.G.R. 1986, 63.
E. DIRIX, o.c., R.W. 2003-04, p. 208, n° 20; J. VAN RYN and J. HEENEN, Principes
de droit commercial, IV, Brussels, Bruylant, 1988 p. 321, n° 2781.
283
Other legal scholars however tend to grant possessory protection to the
competing creditors of the seller (and thus the insolvency estate). According to them, the goods are part of the insolvency estate based on an analogous application of Article 1141 and 2279 C.C.: as the creditors had the
legitimate expectation that the property in possession of their debtor would
belong to the insolvency estate, the purchaser would not be protected even
if he had already paid the purchase price.343 If the purchaser had paid (part
of) the purchase price in advance, he likewise has no priority in claiming
restitution of the paid sum.344 Most legal scholars defending this opinion,
however, accept that there is an exception if the sale is part of the normal
course of business activity of the seller; in such a case, the purchaser would
be entitled to vindicate the goods.345
13.3.
Protection of the transferor against insolvency
of the transferee
Belgian law provides for several measures of protection in favour of the
transferor against the insolvency of the transferee. This very favourable
protection is grounded in the fact that the legislator has aimed to give an
incentive to credit-sales.346
This chapter only deals with the situation in which the sales agreement
has not been made subject to title retention. The rules below apply if property rights have passed immediately to the purchaser. The rules with regard
to title retention are dealt with in Part IV, chapter 23.
13.3.1. Legal lien
If the underlying contract is a sales agreement, the seller will be protected
by a legal lien, which is provided by Article 20, 5 Mortgage Act. The seller
of movable property has a legal lien (“privilège / voorrecht”) for the payment
of the sales price if the debtor opens an insolvency proceeding, if the sold
property can be found in natura in the possession of the buyer at the moment that an insolvency proceeding is opened against him.
The development of the lien is interesting from the perspective of transfer of ownership. In Roman law, such lien was not necessary as ownership
only passed at the moment of the traditio. Hence, the seller was fully pro343
344
345
346
Court of Appeal Brussels 7 June 1979, Bull. Bel. 1981, 1612.
Cass. 9 March 2000, Arr.Cass. 2000, n° 164.
A.P.R., v° Beslag, 2001, n° 635; E. DIRIX, o.c., R.W. 2003-04, p. 208, n° 20.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 25B and n° 246C.
284
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tected by his ownership if he did not agree upon payment terms after delivery. However, the seller who granted a payment period was not protected
against any contractual breach by the purchaser. Therefore, a legal fiction
was created that property, in a sale with a payment period, only passed at
the moment of the traditio (so-called “clause de précarité”). Both systems
thus have been made uniform by the creation of a legal lien.347
The scope of the lien is very broad. The existence of the lien is subject
to the following requirements348:
– The goods must have remained in the possession of the purchaser. It
is debated whether the legal lien can be exercised if the purchaser has
re-sold the goods to a third person, but is still in possession of the goods.
Some authors defend the view that “possession” means estate, and that
the exercise of the legal lien becomes impossible after the sale, independent of the question whether delivery is still possible. A legal lien
would confer, according to this view, a (limited) right to follow the
goods.349 Others argue that only delivery can exclude exercise of the
lien.350
– The goods must have remained in the same material situation, e.g. they
may not have been processed. We refer for the criteria and the proprietary consequences of processing (‘specificatio’) of goods to Part III, 17.1
of this report.
– The sold goods have not been immobilized because of their destination
or incorporation. If the sold goods have been incorporated into movable
property or if the sold goods have been made accessory to immovable
property, in such way that they became immovable by destination, the
legal lien normally ceases to exist. However, the seller can ensure also
in that case the continuation of his lien by depositing the invoice at the
Commercial Court within eight days, in which case the lien persists for
five years after the delivery.
The lien not only covers payment of the sales price, but also the incidental
costs of the sale, e.g. the costs of the sales agreement, transport, taxes and
interest.351
347
348
349
350
351
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 246C.
E. DIRIX and R. DE CORTE, o.c., p. 188, n° 276.
H. DE PAGE and R. DEKKERS, Traité élémentaire de droit civil belge. Principes-doctrine-jurisprudence, VII, Les privilèges, les hypothèques, la transcription, la prescription,
Brussels, Bruylant, 1957, n° 215; E. DIRIX and R. DE CORTE, o.c., p. 188, n° 276;
F. LAURENT, Principes, XXIX, n° 479; V. SAGAERT, Zakelijke subrogatie, n° 646.
A.P.R., v° Voorrechten, n° 352; A. KLUYSKENS, Beginselen, VI, n° 124.
H. DE PAGE and R. DEKKERS, VII, n° 213; E. DIRIX and R. DE CORTE, o.c.,
p. 189, n° 277.
285
13.3.2. Quasi-revindication
The seller can, during a short period after the sales agreement, not only
claim a lien for the payment of the sales price, but is also entitled to claim
restitution of the sold goods.
Article 20, 5°, § 8 of the Mortgage Act provides that if the sale has
been entered into without fixing a payment period, the seller can claim
restitution of the sold goods. The requirements are that the goods are in the
possession of the purchaser; the claim in restitution is brought within eight
days after delivery; and the goods are in the same condition as at the moment of the sales agreement. This remedy is called “quasi-revindication”.
This name must however not cause any confusion: the seller does not exercise his ownership in exercising quasi-revindication, as the ownership has
already passed to the purchaser.
The exercise of quasi-revindication is subject to several requirements:
1° The remedy is only open to sellers of movable corporeal property.
2° The remedy is only open to sellers who have sold the goods without
granting the purchaser a payment period. If a payment period has been
granted, the possibility to exercise this remedy expires, even if the purchaser did not pay within the agreed period.
3° The sold goods must have remained in possession of the seller. As
a consequence, the quasi-revindication cannot result in restitution of the
property by a third party, nor does it grant a right to follow property. This
requirement was introduced in the Civil Code to protect the third-party
acquirer (Article 2279 C.C.). However, quasi-revindication can also be
exercised with regard to a sales price that is substituted for the original
goods.352 The latter possibility is an application of real subrogation.
4° The sold goods must have remained in the same material state as
they were at the moment of the sales agreement. This condition is analogous to the condition existing for the exercise of the legal lien; namely, the
goods must not have been processed in such a way that they have lost their
original identity. We refer to Part III, 17.1, with regard to this requirement.
5° The chose in action must be introduced within a brief period of
eight days after delivery of the goods. Originally intended to protect the
third-party acquirers of the goods, nowadays this rule especially protects the
unsecured creditors of the debtor. The legislator aimed to avoid creditors
being mislead by the goods in possession of their debtor, which could in
fact be vindicated by a third person. After expiry of this delay, the seller
has only one legal remedy left, e.g. his legal lien.
352
A.P.R., v° Afbetalingsovereenkomsten, p. 176, n° 489; V. SAGAERT, Zakelijke subrogatie, Antwerp, Intersentia, 2003, n° 631.
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286
This quasi-revindication is a debated and peculiar witness of the historical development of the transfer system. As noted above, the seller who
granted a payment period to the purchaser was not protected in Roman
law. The protection of the seller was realized by the introduction of the
legal lien. As a consequence, the possibility of vindication, which existed
in Roman law, lost most of its usefulness, but nevertheless it remained
intact: while the legal lien only granted a priority right in the sales price,
the vindication enabled the seller to claim restitution of the asset itself,
even if it had been transferred to third parties. In other words, the quasirevindication gave a right to follow the asset.353
Since the introduction of the Civil Code, the quasi-revindication has
become an illogical legal instrument, as the seller is no longer to be considered the owner from the moment of the sales agreement.354 It no longer
has any legal grounds in the current legal system.355 In 1946, a leading
“procureur-général” declared that the maintenance of this legal institute was
an illustration of bad legislative technique.356
However, it has persisted, even if it has lost its main characteristic
(“right to follow”). Most legal scholars agree that this is not really a “vindication”, but rather a vindicatio possessionis.357 It is often considered a technique rendering possession to the seller and thus preceding the exercise of
the legal lien. Quasi-revindication has lost a lot of its practical usefulness
nowadays. It is no longer used very frequently in legal practice.358
13.3.3. Rescission of the agreement
If the purchaser does not comply with his obligation to pay the purchase
price, the seller can rescind the agreement. The right to rescind a mutual
agreement if one of the parties does not comply with his obligations, is a
general principle of Belgian contract law. It is expressly recognized by Article 1184 C.C., which provides that “a resolutive condition is always implied
in synallagmatic contracts, for the case where one of the two parties does
not carry out his undertaking” (free translation). In that case, the contract
is not avoided as of right. The party towards whom the undertaking has
353
354
355
356
357
358
F. LAURENT, Principes, XXIX, n° 494-495.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 255.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 25B, n° 255.
Proc. Gen. CORNIL, concl. under Cass. 23 May 1946, Pas. 1946, I, 204.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 256; F. LAURENT,
Principes, XXIX, n° 494 and futher.
E. DIRIX and R. DE CORTE, o.c., p. 187, n° 273; J. VAN RYN and J. HEENEN,
Principes de droit commercial, n° 718.
287
not been fulfilled has the choice either to compel the other to perform the
agreement if it is possible, or to request its avoidance with damages.
This provision is completed by Article 1655 C.C., providing as follows: “The avoidance of a sale of immovables shall be ordered at once
where the seller is in danger of losing the thing and the price. Where that
danger does not exist, the judge may grant the purchaser a period of time,
the length of which depends upon the circumstances. Where that period
expires without the buyer having paid, the avoidance of the sale shall be
ordered” (free translation). Even if this provision expressly provides that
it only applies to immovables, all legal scholars assume that it also applies
to the sale of movables.359 It deprives the judge of the possibility to grant a
payment period (“délai de grâce”) to the purchaser.
The action to rescind the agreement is however subject to strict requirements in cases of insolvency proceedings of the purchaser. During
the period the seller has the right to claim restitution of the goods (‘quasirevindication’), he also has the right to terminate the sales agreement. The
chose in action must also be introduced within eight days after the delivery
of the sold goods. The restitution pursuant to the termination is subject to
the same conditions as the quasi-revindication.
13.3.4. Right of retention
Moreover, the transferor normally has a right to withhold (‘retain’) the transferred goods until the price has been paid. This is called the right of retention
(“droit de rétention/retentierecht”), which is – generally speaking – an application of the more general Roman law principle “exceptio non adimpleti contractu”.
This right is the expression of a generally recognized principle but, with
regard to sales, is expressly provided for by Article 1612 Civil Code: “The
seller is not obliged to deliver the thing if the buyer does not pay the price
of it unless the seller has granted him time for payment”.
Article 1613 C.C. adds a complementary protection in case of insolvency of the buyer: “If the seller has granted a payment period to the buyer, he is
not obliged to deliver if the buyer has become, after the sale, the subject of
a judicial arrangement or is subject to an insolvency proceeding, such that
the seller is in imminent danger of losing the price, unless the buyer gives
him security for the payment within the payment period” (free translation).
The right of retention is effective against the bankruptcy trustee if the
transferee becomes insolvent. It is not necessary, in order to suspend his
obligations, that the seller applies to a judge.
359
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 25B; J. VAN RYN and
J. HEENEN, III, n° 264; J. LIMPENS, o.c., n° 549.
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288
However, the right to retain the goods is subject to various conditions:360
– The seller did not agree upon a period for the payment of the price, or
the agreed period has expired. The forbearance period granted by the
judge does not impede the right of retention.361 The judge can indeed
grant to each contracting party who is unfortunate and in good faith a
forbearance period within which to comply with his obligations, even
if this has not been agreed on by the parties (Article 1244, § 2 Civil
Code).362
– The seller is objectively and subjectively in good faith. The seller must
not be himself the cause of the non-compliance.
– The purchaser has not complied with his contractual obligations pursuant to his default. As a consequence, the seller will not be entitled to
exercise this right if the buyer has not paid the price due to vis maior.
The right of retention does not grant a priority right to the seller. For
instance, the right of retention does not prevent other creditors of the
purchaser to seize the retained goods.
If the seller voluntary surrenders possession to the insolvency administrator, he will lose any protection (except for the legal lien). The only
consequence of the right of retention is that the seller exercises factual
power over the goods in order to be factually protected by the insolvency
administrator. In fact, the insolvency administrator will pay the seller who
exercises his right of retention if the purchased goods have a value exceeding the claim of the seller.363
13.3.5. Stoppage in transitu
Article 104 of the Bankruptcy Act expressly provides the necessary conditions for the exercise of the right of stoppage in transitu. According to
this provision, the seller can claim restitution of the goods of which he
has been dispossessed as long as they have not been in the possession of
the purchaser. This possibility only applies if the purchaser is subject to
an insolvency proceeding; it cannot be extended to other cases where the
purchaser is only in default of his obligations.
360
361
362
363
For a general overview: see E. DIRIX and R. DE CORTE, o.c., p. 348, n° 519.
H. DE PAGE and A. MEINERTZHAGEN-LIMPENS, IV, n° 250; J. LIMPENS, o.c.,
n° 231.
This provision is of public order and can thus not been excluded by parties in their
agreement.
E. DIRIX and R. DE CORTE, o.c., p. 347, n° 518.
14. The transfer of the risk in contract law
289
14.364 The transfer of the risk in contract law
We refer to supra, Part II, 9.
15.
Transfer and co-ownership
The Belgian rules of co-ownership have been radically amended by an Act
of 30 June 1994.365 This amendment aimed to adapt these rules to developments regarding apartment buildings. Meanwhile, the rules with regard
to other forms of co-ownership were also adapted. Through these amendments, Belgian law of co-ownership has become substantially different from
French statutory rules.
Belgian law recognizes three forms of co-ownership:
– ordinary (“accidental”) co-ownership;
– compulsory co-ownership; and
– voluntary co-ownership.
15.1.
Ordinary (“accidental”) co-ownership
Ordinary (“accidental”) co-ownership comes into existence due to circumstances, which are not based on the intention of the co-owners. The most
frequent example is the co-ownership coming into existence among the
heirs or general legatees of a deceased person. Another example is the situation in which two persons have commingled their property, for instance by
co-habitation for a long period, and cannot prove their individual exclusive
ownership of the property. In that situation, the property is deemed to be
in co-ownership.
These forms of co-ownership have not been anticipated by the parties,
so that the co-owners have not been able to contractually organize their
co-existence. The statutory rules are found in Article 577-2, §§ 1-8 C.C.
With regard to transfer, the Civil Code makes a distinction between the
transfer of the right in co-ownership and of the co-owned property:
– Each co-owner is entitled to transfer his rights in the co-owned property
to a third party, except if it has been otherwise agreed between the co-
364
365
For instance, it does not apply to “concordat judiciaire”: Cass. 18 November 1971,
R.C.J.B. 1973, 5, note J. HEENEN
Belgian Official Gazette, 26 July 1994). For a general overview of the rules with
regard to co-ownership: H. VANDENBERGHE and S. SNAET, Mede-eigendom, in
Beginselen van Belgisch Privaatrecht, Ghent, Story-Scientia.
290
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owners (Article 577-2, § 4 C.C.).366 He can also freely burden his rights
with property rights.
– It is not possible to transfer the property in co-ownership except with
“co-operation” of all the co-owners (Article 577-2, § 6 C.C.). This
means that transfer of the property is only possible with the unanimous
consent of all co-owners. However, if one co-owner sells the property
without consent of the other co-owners, the protection of the possessor
in good faith will have to be taken into account (cf. infra, Part III, 18).
As the co-ownership could not be anticipated, it is often unorganized and is
harmful from an economic perspective. That is the reason why the legislator has given to each co-owner the right to end the co-ownership by division. This right is provided in Article 815 C.C.: “No one may be compelled
to remain in undivided ownership and a division may always be effected,
unless it was delayed by judgement or agreement” (free translation).367
However, one can agree to delay the division for a certain period, but
such period may not exceed five years. This period can be renewed. There
are also statutory exceptions to the possibility to effect the division.368
Division can in the first place be effected by the co-owners themselves.
Article 1561 Judiciary Code grants the same right to the creditors of the
co-owners. The latter provision deals with the right of the creditor to seize
the rights of the debtor in the co-ownership. Pursuant to this provision, the
seizure cannot be executed before the division or public sale of the property,
which can be effected by the personal creditors.369 According to the majority opinion, the creditor who effects the division of the co-ownership does
366
367
368
369
Contractual clauses prohibiting or restricting the right to dipose of these rights, must
fulfill certain conditions (cf. infra in this section).
Although this rule is part of the Chapter on the Law of Succession, it is generally
assumed to apply on all ordinary forms of co-ownership.
We refer to article 3 of the Act of 15 May 1900 on small heritages, which provides
that if one or more minor heirs can claim the heritage, the indivision which is burdened with a usufruct of the widow, can be maintained by the judge during one or
more periods until the minor heir has reached the age of 18 years old.
E. DIRIX and R. DE CORTE, o.c., p. 422, n° 615; R.P.D.B., compl. VIII, v° Saisie
immobilière, n° 23. The prohibition to execute until the division does not apply if
all co-owners are engaged to perform the entire obligation (E. DIRIX and R. DE
CORTE, o.c., p. 422, n° 615; A. SCHICKS, “De l’hypothèque sur part indivise.
Commentaire pratique de l’article 2 de la loi du 15 août 1854”, Rev. not. b. 1912,
p. 35, n° 2. For an application in French law: Cass. fr. 19 December 2000, Bull. civ.,
IV, n° 202 and J.C.P. 2001, éd. E, I, n° 315, p. 813, note P. SIMLER and P. DELEBECQUE).
15. Transfer and co-ownership
291
not exercise the rights of his debtor,370 but his own rights.371 Agreements for
a period of maximum five years, which have been stipulated between coowners, must be taken into consideration by the creditors who must avoid
executing seizure measures until the expiration of this term.
15.2.
Compulsory co-ownership
Compulsory co-ownership comes into existence if the object of the coownership, given its nature, cannot be divided among the parties. A typical example is a family tomb. Most often, the property in co-ownership is
accessory to property that exclusively belongs to the co-owners. It is an
application of the “accessorium sequitur principale” principle.
For instance, the common areas in an apartment building are in coownership among the co-owners because the use of the common areas is
necessary in order to gain access to the flats, which are in exclusive ownership. So, Belgian law adheres to the theory of dualism and not to the
monistic structure, which is used in some European countries (e.g. Austria,
the Netherlands). Another example is the common wall situated on the
borderline between two immovable goods.
The general rules with regard to co-ownership are included in Article
577-2, § 8-§ 9 C.C. However, extensive particular rules are provided for
apartment co-ownership, which are set out by Article 577-3 to Article 57714 C.C. The specific type of compulsory co-ownership is the ‘common wall’
dividing two or more parcels of land. This type is also governed by specific
provisions, which are included in Article 653 et seq. C.C.
As these forms are an application of “accessorium sequitur principale”,
the co-ownership cannot be divided (Article 577-2, § 9 C.C.). Neither is
it possible to transfer the rights in co-ownership without transferring the
principal property. The transfer of the principal property entails an automatic transfer of the rights in the co-ownership.
15.3.
Voluntary co-ownership
Voluntary co-ownership is the indivisibility that has come into existence
pursuant to an agreement among the co-owners. Typical cases are the coownership of ships and the co-ownership of intellectual property rights.
370
371
E.g. the “action oblique”, which is provided in article 1166 C.C.: “However, creditors
may exercise their debtor’s rights and actions, except those which are exclusively
dependent on the person” (free translation).
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292
Other examples are to be found in the financial business, for instance an
investment fund.
Voluntary co-ownership is not regulated in a general manner. Each
form of voluntary co-ownership is governed by a specific set of statutory
provisions.372 The question whether a co-owner may transfer his rights in
the co-ownership depends upon the issue whether or not the agreement
creating the co-ownership was intuitu personae.
There is a highly complicated debate going on about the question
whether a co-owner can effect the division of this co-ownership. Traditionally, most legal scholars adhere to the opinion that Article 815 C.C.,
which provides for the possibility of division, only applies to ordinary forms
of co-ownership. There is no need to be entitled to division, as parties have
been able to anticipate and organize the indivisibility of the property.
More recently, the position of the creditors is taken into consideration.
If the co-owners cannot effect the division, creditors cannot do so either.
This would mean that it would be sufficient to bring property into voluntary co-ownership in order to escape the execution rights of the creditors.
Therefore, it is argued that voluntary forms of co-ownership, which are not
entered into intuitu personae, are not subject to division. Other voluntary
forms of co-ownership would be amenable to division.
16.
Transfer and unidentified property
16.1.
Transfer of unidentified property
It has already been noted that property rights are characterized by the principle of specificity, e.g. they can only have identified or identifiable goods
as their object. We refer for an extensive analysis to supra Part II, 9.2.1.
16.2.
Floating charge
Belgian law has a legal institution that is rather similar to a floating charge:
the “gage flottant / wisselpand”. This legal institution, which is not provided
by statute, has been recognized in case law. It enables a creditor and debtor
to create a pledge on an object of rotation. The substitutions within the
object of the pledge do not impede the existence of the initial pledge.
372
For collective investment funds: the Act of 20 July 2004 with regard to certain forms
of administration of collectieve investment funds, Belgian Official Gazette 9 March
2005. for co-ownership of ships: article 55-57 Sea Act.
16. Transfer and unidentified property
293
This issue arises mainly with regard to substitutions that have been
effected during the “suspect” period preceding the bankruptcy. Normally,
securities that have been vested during the suspect period (maximum. six
months) in order to guarantee antecedent debts, have no effect on the
other creditors. The floating charge removes this risk, as the initial pledge
with its initial date continues to exist.
The Belgian Supreme Court of 12 November 1914 ruled in a judgement
as follows: “Lorsqu’au cours de la période suspecte, un failli a substitué un gage
à un autre gage, cette opération n’est nulle que si les choses restituées au failli, au
moment même de la substitution, n’étaient pas d’une valeur égale à celle qui leur
ont été substituées”.373 This rule can, in many perspectives, be considered an
exception to the principle of specificity, which requires that property rights
have as their object specified or identifiable goods (cf. supra Part II, 9.2.1).
The conditions set forth for this floating charge are the following:
– The substitution must be effected instantaneously. If there is an overlap – or by contrast a gap – between the presence of the original goods
and the presence of the substitute goods, the security right to the substitute goods will be considered a new security right.
– The original goods and the substitute goods must have an equal value.374
If the value of the substitutive goods exceeds the value of the original
goods, the difference remains outside the scope of the pledge. This rule
aims to protect the other creditors, who should not be disadvantaged
by the possibility to substitute goods.
– Fungibility: it is a debated question whether the floating charge only
involves a pledge on fungible goods, or whether it can also involve
non-fungible goods. It emerges from the case law of the Supreme Court
that fungibility is not a precondition for the floating charge. This contravenes French case law, where the fungible nature of the goods is
a condition for the application of this theory: “les marchandises […]
sont destinées à être remplacées par d’autres de même nature et en égale
quantité”.375
373
374
375
Cass. 12 November 1914, Pasicrisie 1915, I, 124.
Cass. 7 October 1976, Pasicrisie 1977, I, 154, concl. Proc. Gen. E.M. KRINGS and
R.C.J.B. 1979, 5, note J.-L. FAGNART.
Cass. fr. 10 March 1915, D. 1916, I, 214, S. 1916, I, 5, note C. LYON CAEN, Rev.
trim. dr. civ. 1915, 528 and Rev. trim. dr. civ. 1916, 103, note R. DEMOGUE.
Part III:
Acquisition of property is original if the owner does not obtain his right from
another person. It is sometimes thought that only a factual situation can lead
to an original acquisition of property.376 However, several original means of
acquisition of property, such as occupation, seem to imply the intention to
become the owner of the property of which one takes possession.377
Original acquisition of property is opposed to derivative acquisition
of property, where the owner obtains his right from another person; it is
transmitted to him by a certain legal act.
17.
Specificatio – accessio
17.1.
Specificatio
Acquisition of property by means of specificatio (creation of property) takes
place when:
1. The object of an obligation that is only determined by its sort (genus) is
transformed into a definite object of that obligation (species), e.g. a buyer
buys five pounds of potatoes. He acquires the ownership of the potatoes
bought at the moment the seller individualises the quantity bought.378
2. Certain property is transformed into other property (species nova), e.g.
a stone is transformed into a statue, paint is transformed into a valuable painting. The new property belongs in principle to the owner of
the original property on the condition that he pays for the work that
has been effected by the manufacturer.379 However, if the work was so
important that the value of the work exceeds to a large extent the value
of the materials, the manufacturer becomes the owner of the product
of his manufacturing on the condition that he pays the value of the
materials to their original owner.380 If the manufacturer acted in bad
376
377
378
379
380
F. VAN NESTE, Zakenrecht, I, Goederen, bezit en eigendom, in Beginselen van Belgisch
Privaatrecht, Brussels, Story-Scientia, 1990, n° 158, p. 302.
Comp. F. VAN NESTE, o.c., n° 160, p. 306.
Cf. supra Part II, 9.2.1.
Article 570 C.C.
Article 571 C.C.
17. Specificatio – accessio
295
faith, i.e. he knew that he was using another’s materials, he has to compensate the original owner of the materials for the loss he caused him.381
However, these rules have a suppletive nature, in the sense that parties
can contractually exclude the application of these rules. Moreover, their
application is rather exceptional: if the manufacturer is a possessor in
good faith, he will have become the owner due to the application of
Article 2279 C.C., so that no property conflict arises.
17.2.
Accession (“accessio”)
By means of accessio, the owner of property owns everything that it produces or that incorporates itself into it (quod accedit) naturally or artificially.382
Accessio creates in the first place a presumption of ownership: buildings,
crops or other improvements on or below the land are presumed to be
manufactured by the owner of the land with his materials. If it is demonstrated that the incorporated property belonged to another person at the
moment of the incorporation, accessio also functions as a way of acquisition
of property in favour of the ground owner.383 The owner of the incorporated
property can, however, claim compensation for his loss of property.
Accessio implies an incorporation, e.g. a material tie between a main
and an accessory movable or immovable. Mere manufacturing, improvement or repair of property does not lead to accessio; only to an obligation
under the application of the theory of costs.384 Accessio demands that the
accessory property remains, even after the incorporation into the main
property, sufficiently identifiable so that it can be removed. If this is not the
case one will not speak of accessio, but of mere manufacturing, improvement or repair.
In the case of accessio, the ownership of the accessory property follows
that of the main property. If movable and immovable property are involved,
the immovable property will be considered as the main property. Article
381
382
383
384
F. VAN NESTE, o.c., n° 217, p. 384-385.
Article 546 C.C. specifies that the attachment should be accessory. This means that
the attached object should unite itself with and incorporate itself in the “main”
property (article 551 C.C.).
Article 533 C.C; F. VAN NESTE, o.c., n° 196, p. 357-358 and n° 201 et seq., p. 363
et seq. Article 533 C.C. also installs the presumption that the buildings, crops and
improvements on or below land belong to the owner of the land. This presumption
can be reversed by proving that one has acquired title to this property by prescription
or by another title. Cass. 21 April 1866, Pasicrisie 1866, I, 130; F. VAN NESTE, o.c.,
n° 203, p. 365.
Cass. 23 December 1943, Pasicrisie 1944, I, 123; F. VAN NESTE, n° 197, p. 358.
296
Belgium
577-2 §§ 9 and 10 C.C. exceptionally consider the land as one of the accessories to the ownership of an apartment; however, this does not imply that
a reversed case of accessio is provided by law.385 Rather, it forms the legal
grounds for appartment co-ownership in Belgian law.
This manner of original acquisition has a definitive nature: ownership
acquired by accessio will not end if the material tie would no longer exist.386
Articles 554 and 555 C.C. deal with artificial accessio (accessio by human intervention) of movable into immovable property.
Article 554 C.C. stipulates that if the owner of the land has realised
buildings, crops or works with materials belonging to another person, he
has to pay the value of the materials; he can also be ordered to pay damages. The owner of the materials does not, however, have the right to claim
restitution,387 not even at the moment the building is demolished.388 The
value of the materials is to be determined at the moment they are acquired
by the owner of the land, i.e. the moment of incorporation.
Article 555 C.C. deals with the reverse situation, e.g. the situation in
which someone has built or realised crops or works on another’s land.
The owner of the land can accept that the third party has possession of
the property he has constructed. By means of prescription, the third party
can even acquire the underlying property.
However, the owner of the land has the right to revindicate his property
and – if the third party acted in bad faith – demand that everything that
has been constructed by the third party be demolished and removed, even
if these works do no harm to the owner’s property and even if they constitute additional value to it.389 The third party in bad faith will have to pay
the expense of removal and he is obliged to pay damages to the extent he
caused damage to the owner of the land.
The owner can also choose to keep the buildings, crops or works. The
choice is irrevocable.390 If the proprietor has chosen to keep the works, the
third party has the right to be indemnified for the materials and the work.
The third party can sue him for payment of the compensation due; he may
not however remove the works.391
385
386
387
388
389
390
391
F. VAN NESTE, o.c., n° 197, p. 359.
F. VAN NESTE, o.c., n° 198, p. 359-360.
Article 554 C.C.
F. VAN NESTE, o.c., n° 204, p. 366; R.P.D.B., v° Propriété, n° 145.
F. VAN NESTE, o.c., n° 207, p. 368. However, the owner is – as any other holder
of a property right – subject to the theory of abuse of rights.
H. DE PAGE and R. DEKKERS, VI, n° 66, B, p. 56; F. VAN NESTE, o.c., n° 210,
p. 371.
F. VAN NESTE, o.c., n° 210, p. 372.
17. Specificatio – accessio
297
If the third party acted in good faith, the proprietor of the land may not
demand removal of the works. He is obliged to pay either the value of the
materials and the work, or the additional value the property has gained.392
The third party is considered to have acted in bad faith if he knew or
ought to have known that the land did not belong to him.393 The third
party is acting in good faith when he possesses the land, as an owner, on
the grounds of a title of transfer of property that he does not know (and
does not have to know)is defective.394 The rule of Article 555 C.C. applies
unless a special law rules the conflict of ownership between the owner of
the land and the third party.395
Articles 556 to 563 C.C. deal with natural accessio, in particular with
modifications to land because of the presence of water. The provisions do
not have great practical relevance nowadays and are anyway not relevant
in a study concerning the transfer of movables.
Article 564 C.C. stipulates that pigeons, rabbits and fish that move to
another pigeon-house, park or pond belong to the owner of that property,
as far as the animals have not been lured by fraud or ruse.
Articles 565-577 C.C. deal with various situations concerning the unification of two or more movables or the manufacturing of a movable out of
material that does not belong to the manufacturer. The legislator proposes
various solutions and does not apply a consistent system of accessio, accessoria sequitur principale.
These articles have lost much of their interest. In most cases the one
who uses materials belonging to another will already have acquired possession thereof based on Article 2279 C.C. Only in exceptional cases, where
possession does not suffice as title to property, does one need the mentioned
rules. In the case the manufacturer had taken possession of the incorporated
property in bad faith, accessio would take place, but bad faith would imply
an obligation to compensate the loss suffered by the owner.396
Replacement materials that have been used to repair a car are not transferred to the owner of the car by means of accessio, incorporation in the car.
The transfer of property would only take place at the moment the repaired
car is delivered to his owner.397
392
393
394
395
396
397
Article 555 third paragraph C.C.
F. VAN NESTE, o.c., n° 290, p. 370.
Article 555 third paragraph C.C. juncto article 550 C.C. See F. VAN NESTE, o.c.,
n° 211, p. 373.
F. VAN NESTE, o.c., n° 213 et seq., p. 377 et seq.
F. VAN NESTE, o.c., n° 217, p. 384-385.
F. VAN NESTE, o.c., n° 217, p. 385 with reference to Brussels 18 April 1969, Pasicrisie 1969, II, 167 annulled by Cass 20 April 1970, Arr.Cass. 1970, I, 719 because
the motivation concerning the acquisition of property by accessio is not clear.
Belgium
298
18.
Good faith acquisition
Good faith acquisition, i.e. the acquisition in good faith of a movable from
a non-owner, is governed by Article 2279 C.C. This provision is part of
the title “Prescription”, chapter “Time for prescription” of the Civil Code.
Indeed, Article 2279 C.C. is considered to provide for an immediate prescription for movables, a prescription for which the time is reduced to zero
(or three years).398
18.1.
Scope
18.1.1. Material scope of the property
Article 2279 C.C. only applies to corporeal movables. Also concerned are:
the real rights concerning movables, such as ususfructus or pledge, and
negotiable instruments to bearer or order, in so far as they are endorsed
in blank,399 banknotes,400 manuscripts, objects of art, industrial models.401
Article 2279 C.C. does not apply to immovable property, incorporeal
movable property, movables that are considered accessories to an immovable, movables that have become immovable by destination or incorporation,
movables by anticipation, universalities, movables that belong to the public
domain (e.g. collections of museums402), and movables of which the transfer
implies any kind of public notice or record (e.g. boats403, airplanes404)405.
398
399
400
401
402
403
404
405
H. DE PAGE and R. DEKKERS, V, 1975, n° 1032, p. 912. Contra: J. HANSENNE,
I, n° 236, p. 245 who refutes the idea that a type of prescription is concerned.
The Law of 24 July 1921 contains special rules concerning the involuntary loss of
securities to bearer.
Article 2279 second paragraph does not apply to notes of the National Bank of
Belgium nor to the notes emitted on the basis of the law of 12 June 1930, when the
possessor is in good faith.
However, the possession of this property does not create a presumption concerning
the transfer of the intellectual rights concerning this property.
Cass. 2 October 1924, Pasicrisie 1924, I, 530.
Article 2 Book II, Title I, Chapter I Commercial Code and article 272 Book II, Title
X Commercial Code; for pleasure boats, see article 1 § 3 Law 21 December 1990,
Belgian Official Gazette 29 December 1990 and article 2 et seq. Royal Decision 4 June
1999, Belgian Official Gazette 14 August 1999.
Article 6 Law 27 June 1937, Belgian Official Gazette 26-27 July 1937 and article 2-3
K.B. 15 March 1954, Belgian Official Gazette 26 March 1954.
See and compare R. DEKKERS and E. DIRIX, o.c., n° 219-220, p. 92-93; F. VAN
NESTE, o.c., n° 266, p. 455; J. HANSENNE, I, n° 229 et seq., p. 238 et seq.
299
The object of good faith acquisition is the property and not its value,
except when the property is consumable goods.406
18.1.2. Scope of the position of the real owner
The protection of a third acquirer differs according to whether the owner
has been dispossessed voluntarily or involuntarily.
In the first case, the owner has voluntarily transferred the possession to
a second party on the basis of a contract – that either did not transfer ownership (e.g. a lease) or that did transfer ownership, but which ownership
was reclaimed ex tunc (e.g. by avoidance or termination). In such a case,
the second party is deemed to have good faith acquisition immediately.
However, for a period of three years, the right to revindicate belongs to any
person who had possession of the property and who was then involuntarily dispossessed, such as lessees, depositees, but who held the property for
another and are responsible to the owner.407
In the case of involuntary dispossession, the real owner has been dispossessed by loss or theft.408 This makes it possible only for a bona fide
purchaser to become the owner after three years.
18.1.3. Scope of the position of the transferee
(a)
Meaning of “transferee” –
rights the transferee intended to acquire
The “transferee”, protected by Article 2279 C.C, is not only the acquirer of
the property in the sense of being one who intended to acquire the ownership over the property, but also the pledgee who has obtained in good faith
a pledge, albeit of a non-owner. More generally, this protection is awarded
to everyone who has been granted property rights over corporeal movable
property by someone who did not have the power to transfer these property
rights.409 The protection of Article 2279 C.C. is subject to the conditions
mentioned below.
406
407
408
409
H. DE PAGE and R. DEKKERS, V, n° 1073, p. 946.
F. VAN NESTE, o.c., n° 267, p. 456-457.
H. DEKKERS and R. DE PAGE, V, 1975, n° 1062, p. 937-939.
Belgium
300
(b)
Good faith
The law does not mention the condition of good faith of the acquirer for
the application of Article 2279 C.C. Nevertheless, this condition is generally accepted by legal scholars and case law.410 For obvious reasons, a possessor in bad faith cannot claim protection. This condition is founded on
Article 1141 C.C. and on the ratio legis of the Civil Code.411
The third acquirer is acting in good faith if he did not know, and ought
not to have known, that he was dealing with a person who had no right
to transfer the property. Circumstances that make the acquirer doubt, or
that should make him doubt, whether he is acquiring the property from a
person who has the right to transfer it, affect good faith,412 e.g. when one
buys a valuable object for below its market value. Good faith requires that
the third acquirer should have taken notice of all unusual circumstances
that cast suspicion over the rights of the previous pretended owner. The
courts are strict, but it is not required that the third acquirer investigate
extremely carefully whether the person with whom he is dealing is the real
owner or not. Higher standards apply to professionals than to consumers.
It suffices that good faith exists at the moment one takes possession of
the property.413 If the acquirer later learns that he has not dealt with the actual owner, this has no influence on the rights he acquired in good faith.414
Good faith is presumed.415 The party who invokes bad faith bears the
burden of proof.416 It suffices to prove that the third acquirer doubted or
410
411
412
413
414
415
416
R. DEKKERS and E. DIRIX, o.c., n° 218, p. 92 and n° 230, p. 98; F. VAN NESTE,
o.c., n° 271, p. 462 and the references cited.
F. VAN NESTE, o.c., n° 271, p. 463.
Cass. 3 June 1915, Pasicrisie 1915-16, I, 300; Cass. 12 November 1925, Pasicrisie
1926, I, 57; Cass. 17 October 1984, Arr.Cass. 1984-85, 280 and Pasicrisie 1985, I,
244; H. DE PAGE and R. DEKKERS, V, 1975, n° 1058, p. 934-935.
Article 2269 C.C. mentions in fact the moment of acquisition. The moment of
acquisition is usually also the moment one takes possession of the property; as far
as there is a distinction between both, the moment of acquisition is determinant
according to the dominant opinion: Liège 30 June 1988, Rev. Liège 1989, 1150; H.
DE PAGE, V, 1975, n° 1059, p. 935; F. VAN NESTE, o.c., n° 271, 464-465. Contra:
J. HANSENNE, I, n° 236, p. 245.
Kh. Bruges 24 June 1997, Tijdschrift voor Westvlaamse Rechtspraak 1998, 73; J.
HANSENNE, I, n° 236, p. 245; F. VAN NESTE, o.c., n° 272, p. 464; M. PUELINCKXCOENE, N. GEELHAND and F. BUYSSENS, o.c., T.P.R. 1999, n° 210, p. 1177.
Article 2268 C.C.; Kh. Brussel 24 June 1996, J.T. 1995, 72; Brussels 23 June 1997,
Actualités du droit: revue de la Faculté de droit de Liège 1999, 113, note M. SOMMACAL.
n° 210, p. 1176-1177.
301
should have doubted the rights of the person from whom he acquired the
property.417
(c)
Possession
To realize the transfer of property on the basis of Article 2279 C.C., the
possession of the third party has to be real, pro suo and free of defects.
(i)
Real possession
The third party needs to have “material” possession of the property, meaning that he must acquire factual control over the property. Third parties,
and more specifically the actual owner, must be able to realize that there has
been a real transfer of possession. Whether or not the possession is real, is a
question of fact. If the possession has been transferred constitutio possessorio,
the possession is considered not to be real.
However, the symbolic nature of a transfer does not exclude it from
granting ‘real possession’: e.g. the transfer of keys or the application of a
sign on the property to be delivered confers a real nature to the possession.418 However, the transmission of letters of carriage or receipts is not
accepted as a means of rendering the possession real. The question whether
a bank order transfers the legal possession has been disputed.419 At present,
the majority opinion answers this question negatively.
If the possessor loses possession by means of violence or force, the real
nature of the possession of the third-party acquirer is not considered to
be lost.420 However, if he returns the property voluntarily to the original
owner (because he has discovered that he purchased non a domino), he can
no longer invoke Article 2279 C.C. to receive payment, because he has
surrendered possession of the property.421
417
418
419
420
421
F. VAN NESTE, o.c., n° 272, p. 465.
F. VAN NESTE, o.c., n° 269, p. 459.
Answer this question positively: Mons 20 November 1979, R.C.J.B. 1984, 192, with
critical note P. DELNOY; Mons 26 November 1980, Pasicrisie 1981, II, 19, Rev. Not.
B. 1983, 288, note J. SACE. Answer this question negatively: Mons 5 May 1987,
Rev. Liège 1987, 1026.
Brussels 22 January 1963, Pasicrisie 1964, II, 188.
Kh. Brussel 24 June 1996, J.T. 1995, 72; F. VAN NESTE, o.c., n° 267, p. 459.
Belgium
302
(ii)
Possession pro suo
To benefit from the protection of Article 2279 C.C., the possessor has to
exercise the possession for himself, pro suo and not for another.422 Possessio
pro suo can be possession as an owner, animo domini, but also as the holder
of another real (security) right, e.g. as a ususfructuary or pledgee.423
The Civil Code provides a presumption that the possessor of property
is the owner.424 The appearance of possession can create this presumption.
However, the presumption is only juris tantum.425 The claimant may overcome the presumption by proving that the defendant possesses for another,
that he is not a lawful possessor, but only a holder.426
However, whoever voluntarily surrenders control over the property
loses the protection of Article 2279 C.C; even if the surrender takes place
bona fide after having heard of the problems concerning the ownership of
it and even if the property is handed-over to a bailiff.427
(iii)
Possession free of defects
It is often repeated that the possession of the acquirer a non domino has to
be continuous,428 undisturbed (not created by violence),429 public (i.e. not
hidden),430 and not ambiguous431 in order to serve as title against the real
owner.
However, authoritative legal scholars deny the necessity of the continuity of the possession of the acquirer a non domino.432 If the possession is
422
423
424
425
426
427
428
429
430
431
432
Com. Brussels 16 May 1963, Pasicrisie 1963, III, 124; F. VAN NESTE, o.c., n° 270,
p. 460.
F. VAN NESTE, o.c., n° 270, 460.
Article 2230; F. VAN NESTE, o.c., n° 270, p. 460.
Article 2230 C.C.; R. DEKKERS and E. DIRIX, o.c., n° 226, p. 95.
Antwerp 7 October 1997, Limburgs Rechtsleven 1997, 220.
H. DE PAGE and R. DEKKERS, V, n° 1052, p. 928.
Article 2229 and 2233 C.C.; H. DE PAGE and R. DEKKERS, V, n° 1051, p. 928.
Who acquired the movable violently cannot invoke the protection of article 2279
C.C. against the real owner, but he can appeal to article 2279 C.C. in relation to
third parties, see R. DEKKERS and E. DIRIX, o.c., n° 223, p. 93.
Article 2229 C.C.; H. DE PAGE and R. DEKKERS, V, n° 1053, p. 929; R. DEKKERS
and E. DIRIX, o.c., n° 223, p. 93.
R. DEKKERS and E. DIRIX, o.c., n° 223, p. 93. Also J. HANSENNE, I, n° 237,
p. 246 who specifies however that discontinuity might be taken into account not
qualitate qua as a defect, but as an indication of fraud.
303
intentionally hidden, the possessor will probably be in bad faith.433 It has
also been pointed out that if the possession is created by violence, Article
2280 C.C. (acquisition of stolen or lost goods at a market or from a seller
who usually sells goods of the same kind) will often apply.434 Only ambiguity
is unanimously accepted as a defect excluding acquisition of property based
on possession by an acquirer a non domino.435
The burden of proof of the defects rests on the party who invokes them.436
(d)
Title
A title, a iusta causa, is every legal act for which the law confers the effect
of the acquisition of property (e.g. sale, exchange, gift).437
In the past, opinions diverged concerning the question whether the
possessor has to prove his title. According to a first opinion, the possessor
has to prove his title, which means a iusta causa, a legitimate cause such
as a bilateral or unilateral legal act, or a rule of law that provides a means
of acquisition of property (e.g. intestate succession). The requirement of
a valid title would be implied in Article 2279 C.C., given its place in the
Civil Code in matters of prescription.438
According to a second opinion, the possessor need not prove his title.
The title is presumed to exist based on Article 2268 C.C.439 An exception
to this rule would only exist for the pledgee, who would have to prove his
title because a pledge can only exist based on a valid title.440
This dispute ended in 1974 with a judgement of the Cour the Cassation
that adhered to the second opinion, stating that the possessor in good faith
of movables need not prove any other element to justify his ownership of
the property.441
433
434
435
436
437
438
439
440
441
J. HANSENNE, I, n° 237, p. 246.
F. VAN NESTE, o.c., n° 270, p. 462.
H. DE PAGE and R. DEKKERS, V, n° 1054, p. 929-930; F. VAN NESTE, o.c.,
n° 270, p. 462.
n° 209, p. 1176 and the cited references.
H. DE PAGE and R. DEKKERS, V, n° 1055a, p. 931.
R. DEKKERS, “Inzake roerend goed geldt bezit als title, doch niet als wettige titel”,
R.W. 1972-73, 1937 et seq.; R. DEKKERS in H. DE PAGE and R. DEKKERS, V,
n° 1055, p. 932 whose opinion differs from that of H. DE PAGE in the first edition.
J. HERBOTS, “Bezit en bewijs”, R.W. 1973-74, 1033-1038.
F. VAN NESTE, o.c., n° 272, p. 465.
Cass. 20 December 1974, Arr.Cass. 1975, 478 and Pasicrisie 1975, I, 441.
Belgium
304
18.1.4. Scope of the position of the transferor
For property of which the real owner has been dispossessed, the protection
of the third acquirer differs according to (1) whether the dispossession has
been voluntary or involuntary, and (2) whether he has acquired the movable from a person who usually sells goods of this type.442
18.2.
The protection offered to the acquirer
18.2.1. Voluntary dispossession of the real owner
The third party who acquired possession in good faith from a non-owner a
movable – of which the owner had been voluntarily dispossessed – cannot
be subject to revindication by the owner. The real owner, who had an action in revindication against the transferor, loses this in the case of transfer
of the property to a third party in good faith; he retains however a personal
action against the transferor.443
Quid if the bona fide acquirer transfers the movable to a third person who
knows that his transferor has acquired a non domino? It might be surprising, but this third person will immediately receive the movable property,
through the title of sales, for his transferor had obtained the property based
on Article 2279 C.C. He had the right to transfer the movable regardless
what the transferee knew or did not know concerning the history of the
movable.444 The third person did not acquire non a domino, so that he does
not need to argue Article 2279 C.C.
18.2.2. Involuntary dispossession of the real owner
(a)
Meaning of involuntary dispossession
Dispossession of movables is involuntary if the movables are lost or stolen. Movables are lost if they have disappeared unintentionally, or if their
possession has ended by force majeure (e.g. flood), by accident or even by
carelessness.445
442
443
444
445
Cf. infra, Part III, 18.2.
F. VAN NESTE, o.c., n° 267, p. 456-457.
H. DE PAGE and R. DEKKERS, V, n° 1061, p. 936-937; R. DEKKERS and E. DIRIX,
o.c., n° 233, p. 99.
Cass. 9 February 1982, Pasicrisie 1982, I, 728; H. DE PAGE and R. DEKKERS, V,
n° 1072a, p. 945; F. VAN NESTE, o.c., n° 276, p. 472.
305
Stolen property is property that was fraudulently taken away, even if
it were for short use, by someone to whom the property did not belong
(Article 461 Crim. C.). Certain forms of theft, committed by inmates and
relatives for whom no criminal prosecution is possible (Article 462 Crim.
C.) can nevertheless be taken into account by the application of Article
2279 second paragraph C.C.446 Revindication is possible, even if the thief
is not known.447
The application of Article 2279 C.C. cannot be extended to grounds
of dispossession other than loss and theft.448 As the crimes of abuse
of confidence and swindle can only be committed in cases in which the
owner of property has voluntarily handed it over to a third person, they
cannot be assimilated into theft.449
(b)
Basic rule
In the case the real owner has been involuntarily dispossessed, he does not
lose his ownership. However, the time during which the revindication can
be exercised is limited.
In the case the movable is transferred to an acquirer in bad faith, the
revindication is possible for 30 years; this period can be suspended or interrupted.
Against the bona fide acquirer, the time during which the revindication can be exercised is limited to three years from the moment of the
dispossession.450 This three-year period cannot be suspended, interrupted
or extended for any reason.451
If the acquirer bona fide sells the movable to a third party who knows
of the loss or theft, this third party will not be protected against revindication by the true owner during the three years following the loss or theft.452
446
447
448
449
450
451
452
Civ. Ghent 13 February 1907, Pandectes Périodiques 1908, n° 789; Court of Appeal
Brussels 19 November 1925, Tijdschrift voor Vrederechters 1927, 65 (abstract), Jurisprudence commercial de Belgique (hereafter: J.C.B.) 1926, 78, note, confirmation of
Com. Brussels 17 November 1923, J.C.B. 1924, 36; R. DEKKERS and E. DIRIX,
o.c., n° 237, p. 100; F. VAN NESTE, o.c., n° 276, p. 473.
R. DEKKERS and E. DIRIX, o.c., n° 237, p. 100; F. VAN NESTE, o.c., n° 276,
p. 473. Also Justice of the Peace Brussels 27 June 1902, Pandectes Périodiques 1902,
n° 1230.
F. VAN NESTE, o.c., n° 276, p. 473.
H. DE PAGE and R. DEKKERS, V, n° 1072a, p. 945; J. HANSENNE , I, n° 247, p. 256.
Article 2279 § 2 C.C.
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306
(c)
Banknotes
For lost or stolen banknotes, revindication out of the hands of a possessor in
good faith is excluded.453 Article 2279 C.C. provides that banknotes issued
by the National Bank of Belgium, or issued pursuant to the act of 12 June
1930, cannot be vindicated if the possessor is in good faith. It is mostly assumed that this provision also applies to banknotes issued by the European
Central Bank. This provision is an exception to the rule that the owner of
involuntarily dispossessed property can vindicate the property during three
years (cf. supra this Part III, 18.2.2).
This provision was inserted by the Act of 22 June 1953454 pursuant to
a judgement of the Belgian Supreme Court in which the vindication of
an identifiable unit of banknotes was approved. The legislator excluded
banknotes from vindication because of the necessity to have legal certainty
with regard to banknotes. As banknotes are a compulsory instrument of
payment (the creditor may not refuse payment), the recipient (creditor)
must have legal certainty that he will not be dispossessed.
Several authors defend the view that this provision is the expression of
the general rule that banknotes can never be vindicated out of the hands of
a third party. They argue that this rule is founded in the principle of confusio
nummorum.455 However, other legal scholars have taken a more restricted
view, which is imposed by the terms of the statutory provision itself (good
faith, stolen banknotes).456
(d)
Reimbursement of the purchase price
If the present possessor of the stolen or lost property has bought it at market,
at an auction sale, or from a seller who usually sells this kind of property, the
real owner cannot require that the possessor return the property unless he
pays him the price at which the possessor bought it, as well as costs of the contract.457 Interest is not due as the possessor had the enjoyment of the movable.
In order to qualify as “a seller who usually sells this kind of good”, the
seller’s business needs to consist primarily of the sale of this kind of property.
453
454
455
456
457
Article 2279, § 3 C.C.
Belgian Offical Gazette 13-14 July 1953.
A. HEYVAERT, “Bezit geeft verscheidene titels”, T.P.R. 1983, p. 185, n° 25; C.
RENARD, note on Cass. 30 October 1947, R.C.J.B. 1950, 26; M.E. STORME,
“De kwaliteitsrekening, zakenrechtelijk bekeken” in E. DIRIX and R.D. VRIESENDORP (eds.), Inzake kwaliteit, Deventer, Kluwer, 1997, 56.
307
A person who bought a car from a garage keeper who sells from time to time
a second-hand car has no right to repayment of the price:458 Specifically, one
who buys from a second-hand dealer will not enjoy this special protection.459
The true owner can demand repayment of the price and the contract
costs paid to the possessor from the thief, the finder or from any person who
has committed a fault that contributed to the fact the stolen or lost good
came into the possession of the possessor in good faith.460
(e)
Bearer shares
The law of 24 July 1921 offers the victim of involuntary loss of bearer
shares greater protection than that provided by Articles 2279 and 2280
C.C. The greater protection consists in an extensive interpretation of “loss
of possession”. The dispossessed owner of the bearer shares must follow a
procedure of opposition ending in revindication.461 Articles 2279 and 2280
C.C. continue to apply to transactions that took place before the publication of the opposition.462
It should be noted that securities to bearer will gradually disappear from
Belgian law pursuant to the Act of 14 December 2005.463
(f)
Other specific rules
For certain cases of lost objects, there are specific rules: Article 33 Com. C.;
Article 14 Field code; Article 16-17 Edict of 13 August 1669 containing
the general regulations for waters and forests; Decree of 13 August 1810
concerning objects entrusted to certain transport enterprises that have not
been claimed within six months from their arrival at their destination and
Law 28 February 1860 that declares the decree of 13 August 1810 applicable to objects left in railway stations or that have not been claimed within
458
459
460
461
462
463
Court of Appeal Brussels 1 June 1927, Pand. Pér. 1927, 217; H. DE PAGE and R.
DEKKERS, V, n° 181, p. 952-953. Contra: Court of Appeal Mons 18 December 1940,
Pasicrisie 1941, III, 79.
H. DE PAGE and R. DEKKERS, V, n° 181, p. 952-953.
See R. DEKKERS and E. DIRIX, o.c., n° 243, p. 103.
This act however provides for long periods of transition. From 1 January 2008, companies will not be entitled anymore to emit bearer shares. Until 1 January 2013, the
owners of bearer shares will be entitled to request the conversion of their financial
instrument into a nominative share.
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308
a certain time, Belgian Official Gazette 1 March 1860; Article 16 Law 26
December 1956 on Post services, Belgian Official Gazette 30-31 December
1956; Article 13, § 1 R.D. 2 April 1975 containing police regulations concerning the working of taxi services, Belgian Official Gazette 18 April 1975,
err. 24 April 1975; Law 30 December 1975 concerning objects found on private land or on public roads in execution of judicial decisions in eviction,
Belgian Official Gazette 17 January 1976; Law 21 February 1983 concerning
the sale of certain left objects.
18.2.3. Exception: lessor’s right of revindication
The right of revindication of the lessor exercising his legal lien on the goods
that furnish the rented property and that have been moved (Article 20, 1°
paragraph 3 Mortgage Act) without his consent, prevails over the protection offered by Article 2279 C.C.464
19.
Acquisitive prescription
Acquisitive prescription means that a person who has possession of property for a certain period of time becomes the owner of that property. This
acquisitive prescription indirectly deprives an owner of his rights, as the
acquisition of ownership by one person necessarily deprives the current
owner of his ownership. It is in Belgian law the complement of extinctive
prescription, which means that a person who does not exercise his rights
during a certain period of time, will lose them or at least the remedies attributed to those right.
19.1.
Functions of acquisitive prescription
Generally, legal scholarship recognizes two functions of acquisitive prescription:
First, it functions as proof of ownership. In order to prove ownership,
one has to demonstrate that the predecessor was the legal owner, that in
turn his predecessor was the legal owner, and so on until the origin of the
asset at stake is revealed. Indeed, one cannot acquire ownership from a person who is not himself the owner (“nemo plus iuris potest transferre quam ipse
haberet”). Moreover, Belgian / French law has no positive system of registration: the registration of immovable property rights in the mortgage registry
464
H. DE PAGE and R. DEKKERS, V, 1975, n° 1062a, p. 939.
309
does not give title to the registered person. The rights can be disputed, even
after registration. Acquisitive prescription facilitates this burden of proof:
it is sufficient that the person in question (and, depending on the case, his
predecessor(s)) has / have been the possessor(s) of the land for at least 30
years in order to make the ownership indisputable.465
Secondly, acquisitive prescription is a method of acquiring ownership.
If a predecessor was not the owner, the acquirer has not become the owner
either. Acquisitive prescription will make him the owner after a certain
period of time if the actual owner has not acted during that period.
Several legal scholars and law makers have noticed that the result
reached by prescription is most often not in line with justice and equity,
and is illogical and disproportionate. During the preparatory works for the
French / Belgian Civil Code, BIGOT-PREAMENEU (who was the main defender of customary law) warned against the inequitable results of the rules
on acquisitive prescription.466 One of Belgian’s leading scholars adhered
to those critical observations in writing that “a hundred years of injustice
cannot make a single day of law”.467
If acquisitive / extinctive prescription has such unjust results, why has
it been introduced as a general institution in the national legal systems?
Modern scholars duly argue that the rule is not inequitable, but rather
closes the gap between the factual and the legal situation.468 According
to some, the institution of prescription could even be founded on natural
law. BIGOT-PREAMENEU, the drafter of the Civil Code who criticized
465
466
467
468
R. DERINE, F. VAN NESTE and H. VANDENBERGHE, Zakenrecht, IB, p. 986,
n° 665; M. PLANIOL and G. RIPERT, Traité pratique de droit civil français, Paris,
L.G.D.J., 1952, III, p. 637, n° 688. See for an application: Cass. fr. 14 June 1961,
J.C.P. 1962, II, n° 12.472, note BULTE and Rev. trim. dr. civ. 1962, note SOLUS.
LOCRE, VIII, 344: “A la seule idée de la prescription, il semble que l’équité doive
s’alarmer; il semble qu’elle doive repousser celui qui, par le seul fait de la possession, et sans
le consentement du propriétaire, prétend se mettre à sa place, ou qu’elle doive condamner
celui qui, appelé à remplir son engagement d’une date plus ou moins reculée, prescription
et ne point paraître dans le premier cas un spoliateur, et dans le second un débiteur de
mauvaise foi qui s’enrichit de la perte du créancier”.
H. DE PAGE, VII, Brussels, Bruylant, 1974, n° 1132 (free translation).
P. JOURDAIN, Les biens, in G. MARTY and P. RAYNAUD, Droit civil, Paris, Dalloz, 1995, p. 246, n° 184: “Certes, on pourrait songer à mettre fin à cette discordance en
expulsant le possesseur, mais encore faudrait-il que le véritable propriétaire le demande.
Et s’il le fait après une longue négligence, il vaut mieux préférer celui qui s’est conduit en
fait comme un véritable propriétaire pendant longtemps et dont l’activitité a été socialement
utile, à celui qui s’est désintéressé de sa chose et dont on peut penser qu’il a implicitement
renoncé à son droit”. Likewise: M. PLANIOL and G. RIPERT, Traité pratique, III,
p. 637, n° 688.
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the inequity of these rules, meanwhile advanced the position that no rule
corresponds to a more pressing social need than the rules on prescription.469
Several arguments have been advanced in support of acquisitive prescription. The first argument that has been raised is that prescription would
be grounded in a presumption of a waiver of rights.470 However, this argument is criticized because the presumption is irrefutable. Proof of the
contrary is not possible.
A more general approach finds justification for prescription in the general interest of society at large. A human being is a quarrelsome being, and
it is appropriate to terminate such quarrels by means of the law. It is better
to be confronted with inequity than with legal uncertainty.471
This collective interest in legal certainty prevails over individual arguments of equity in specific cases. Society needs rules that prevent claims
brought on a legal basis no one remembers. This is not only in the interest
of the possessor himself, but also of third persons acting with the possessor
(e.g. the third acquirer, the creditor of the possessor). Finally, all commercial transactions, and thus the entire society, benefit from this legal
certainty. That is the main reason the rules on prescription are of a public
policy nature.472
19.2.
Requirements of acquisitive prescription
All property rights can be the object of acquisitive prescription. It can apply both to movables and immovables, and to registered and unregistered
property. It applies to all property rights with regard to property that can be
the object of trade. However, acquisitive prescription, contrary to extinctive prescription, does not apply to personal rights.473
469
470
471
472
473
LOCRE, VIII, 344. The same opinion is defended by M. PLANIOL and G. RIPERT,
Traité pratique, III, n° 688.
H. DE PAGE, VIII, n° 1132A.
“Mieux vaut une injustice qu’un désordre”. See also H. DE PAGE, VII, n° 1032; R.
DERINE, F. VAN NESTE and H. VANDENBERGHE, Zakenrecht, IB, in Beginselen
van Belgisch Privaatrecht, Antwerp, Standaard, 1974, p. 985, n° 665.
H. DE PAGE, VIII, n° 1334A; R. DERINE, F. VAN NESTE and H. VANDENBERGHE, Zakenrecht, in Beginselen van Belgisch Privaatrecht, Antwerp, Standaard,
1974, p. 985, n° 665; Rép. prat. dr. b., v° Prescription en matière civile, n° 20.
This does not mean that receivables cannot be the object of possession. This emerges
from article 1240 C.C.: “payment made in good faith to one who was in possession of
the claim is valid, even if the possessor is afterwards dispossessed”(free translation).
Possessor of the claim is the one who can present vis-à-vis the debtor as the “owner”
of the claim.
311
Acquisitive prescription always requires that possession satisfy certain
characteristics: the possession must be continuous and uninterrupted,
peaceful, public and unambiguous, and the possessor must act in the capacity of an owner (article 2229 C.C.). A possession that does not meet one
or more of these requirements can never result in acquisitive prescription.
– Uninterrupted means that the possessor undertakes acts of possession
in a regular way, as a normal and diligent owner would have done in
the same situation.
– Peaceful has a double meaning. Firstly, it means that the possessor did
not use violence to take possession of the property. If the possessor took
possession in a violent way, this excludes the acquisitive prescription.
Secondly, it means that violence used by third parties during the possession, against which the possessor did not react as a normal diligent
possessor would have done, also excludes peaceful possession.
– Unambiguous means that there is no doubt concerning the origin of the
possession, or concerning its exclusive nature. This problem is, in legal
practice, often encountered when a parent or a secretary of a deceased
person possesses certain property of the latter after his death and claims
that he received it by gift from hand to hand.474
– Public means that the possessor does not hide his possession. This requirement must be applied with regard to the nature of the property.
The nature of some property does not lend itself to a public possession.
Good faith is not required for acquisitive prescription (at least not for the
longer prescription periods). Good faith is presumed. Most authors recognize that, in such case, the possibility of acquisitive prescription is contrary
to equity. However, these considerations of equity may not prevail. As was
expressed during the preparatory works for the Civil Code: “La morale est
pour la vertu, la loi est pour la paix”.
When there is bad faith by the possessor, prescription is again partly
founded on the collective interest of legal certainty and partly imposed
as a penalty for the inattentive behaviour of the registered owner.475 This
economic need should, according to these authors, prevail over the considerations of individual equity, which impose the contrary solution. Not
only the interests of the possessor, but also those of his creditors and other
third parties are at stake.
474
475
H. DE PAGE and R. DEKKERS, V, n° 1054, p. 930; J. HANSENNE, I, n° 237, p. 247.
M. PLANIOL and G. RIPERT, Traité pratique, III, p. 637, n° 688. Contra: Rép. prat.
dr. b., v° Prescription en matière civile, n° 10.
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312
19.3.
Prescription of ownership
According to the majority opinion in French and Belgian law, extinctive
prescription does not operate for the right of ownership: no one can lose
ownership because he did not “use” his right. Ownership is a so-called perpetual right.476 The perpetual nature of ownership can be criticized,477 but
is generally accepted by Belgian and French legal scholars.478
This does not mean that ownership is not subject to prescription: ownership cannot be lost by non-use during 30 years, but this does not prevent
the loss of ownership because of acquisitive prescription by a third party. If
a third party has possession (which meets the requirements of Article 2228
C.C.) for a sufficiently long period, he will become the owner by acquisitive prescription and indirectly the original owner will be divested of his
ownership. As we have seen above, the term for acquisitive prescription is
zero years (voluntary dispossession) or three years (involuntary dispossession) in case of good faith of the possessor, and 30 years in case of bad faith.
20.
Other forms of original acquisition
20.1.
Occupation
One acquires property by occupation by taking possession of property that
does not belong to anyone. Taking possession means exercising a factual
power over the property in order to become the proprietor of it.479
Occupation is possible of:
476
477
478
Cass. fr. 12 July 1905, Dalloz 1907, I, 141; G. BAUDRY-LACANTINERIE, Traité
théorique et pratique de droit civil, Paris, Sirey, 1878, XXIV, p. 339, n° 592; I. CLAEYS,
“De nieuwe verjaringswet: een inleidende verkenning”, R.W. 1998-99, p. 387, n° 26;
Rép. Prat. Dr. B., v° Prescription en matière civile, n° 5; M.E. STORME, “Perspektieven voor de bevrijdende verjaring in het vermogensrecht met ontwerpbepalingen
voor een hervorming”, T.P.R. 1994, p. 1985, n° 5; A. VAN OEVELEN, “Algemeen overzicht van de bevrijdende verjaring en de vervaltermijnen in het Belgisch
privaatrecht”, T.P.R. 1987, n° 23.
V. SAGAERT, “Het onderscheid tussen persoonlijke en zakelijke vorderingen. Het
verjaringsregime van zakelijke vorderingen nader geanalyseerd”, in I. CLAEYS, Verjaring in het privaatrecht. Weet de avond wat de morgen brengt?, Mechelen, Kluwer,
2005, 1-30.
This can be explained by historical circumstances at the beginning of the 19th century, where the legislator and legal scholars wanted to distinguish ownership from
other property rights. It is however very doubtful whether the considerations which
underlay this legal opinion at the beginning of the 19th century are still valid.
313
(a) property that has never had an owner (res nullius) e.g. wild animals, and
(b) property that has been abandoned by its owner (res derelictae). 479
It is important to note the difference between abandoned property and
lost property. Property is abandoned when its owner has parted with it
voluntary. It is lost when the owner has lost possession of it involuntarily.
Lost goods can be revindicated within three years (Article 2279 C.C.).480
The Act of 21 February 1983 has provided a special regime for movables
left with merchants or artisans, and for those remaining with notaries or
bailiffs as a consequence of sales or after adjudication of property. One year
after the owner has been given notice, these can be sold at a forced sale
under the conditions and the forms provided by the Act of 1983.481
No occupation is possible of universalities and incorporeal property,
e.g. copyright.482
20.2.
Treasure finding
A treasure is every hidden or buried object of movable property of which
nobody can prove his ownership and that is retrieved accidently.483 A lost
object found in the ground is not a treasure: the rules on finding apply. On
the other hand, banknotes hidden between the pages of a book constitute
a treasure.484
The ownership of a treasure belongs to who finds it on his own property.
If it is found on someone else’s property, a distinction is to be made: if the
treasure is found after systematic or secret searching, the treasure belongs
to the owner of the property on which it is found; if the treasure is found
by accident, its ownership is divided between the finder and the owner of
the property on which it is found.485
Finding does not necessarily imply “taking possession of”. In the case
of a conflict between the finder and the person who took possession of the
treasure, the finder prevails.486
479
480
481
482
483
484
485
486
R. DEKKERS and E. DIRIX, o.c., n° 362, p. 145. Comp. J. HANSENNE, I, n° 212,
p. 225.
Belgian Official Gazette 2 April 1983 – Err. Belgian Official Gazette 12 October 1983.
R. DEKKERS and E. DIRIX, o.c., n° 364, p. 146-147. Comp. F. VAN NESTE, o.c.,
n° 160, p. 306.
Article 716, § 2 C.C. Comp. J. HANSENNE, I, n° 216, p. 228.
J. HANSENNE, I, n° 216, p. 228.
Article 716, first paragraph C.C.
F. VAN NESTE, o.c., n° 161, p. 307.
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314
If, exceptionally, the owner of the “treasure”487 would turn up and be
able to prove his ownership, he can revindicate his property from the finder
or “owner” of the property within 30 years.488 A third acquirer in good faith
will however be protected by Article 2279 C.C.489
20.3.
Finding of lost property
Lost property is not hidden like treasures. Special legislation deals with the
rights to lost property.490 They deal with property deposited at the registry,
with senders, in the post, etc.491 The Act of 30 December 1975492 imposes
on the person who finds movable property on private premises or on public
roads, the duty to hand it in immediately at the municipality.493 The property is then held at the owner’s disposition for six months. Afterwards, the
ownership is transferred to the municipality. From that time on, revindication is no longer possible.494
Beyond the scope of this special legislation, lost and found property
belongs to the finder. However, the owner has the right to revindicate
it within 30 years starting from the day the finder takes possession of the
lost property. As to further bona fide receivers of the property, the right
to revindicate it expires after three years, starting from the moment the
property is lost.495
20.4.
Separation
Separation is usually not mentioned as a specific, original way of acquiring
property. However, it is accepted that the owner of land or trees is in principle also the owner of the fruits thereof. It follows that he also becomes
the owner of the fruits at the moment they are separated from the trees or
the land.
487
488
489
490
491
492
493
494
495
Which is then, according to the definition of article 716 C.C., not really a treasure
in the sense of this article.
Article 2262 C.C.
J. HANSENNE, I, n° 218, p. 231.
Article 717 C.C.
Belgian Official Gazette, 17 January 1976.
Article 1.
Article 4.
Article 2279, § 2 C.C.
315
For every principle, there is an exception. The owner of the land will
not be the owner of the fruits if he has conferred the fructus to another
person by means of a contract of rent, or the property right of ususfructus.
In this case, the fruits belong to the person who has the fructus.
The owner of the land also will not be the owner of the fruits in the
case the fruits have been separated by a possessor in good faith before a
revindication.496
The right to the fruits is considered by the civil code as a kind of accessio
(which is in fact only correct if there is a conflict of property rights between
the owner of the land and that of the fruits).497
496
497
Article 549-550 C.C.
Part IV:
21.
Loss of ownership
21.1.
Transfer of ownership
Cf. supra, Part II.
21.2.
Fulfilment of a resolutive condition
If a contract is concluded under a resolutive condition, property passes according to the rules applicable to the concerned contract (e.g. in a contract
for sale, at the time of the conclusion of the contract; but in the case of the
sale of generic goods, at the time of the identification). The fulfilment of a
resolutive condition has a retroactive effect to the day of the conclusion of
the contract (Article 1179 C.C.).
Whoever has become the owner of property under a resolutive condition and who has disposed of it before the condition was fulfilled, undergoes
the annulment of his act of disposition. The owner only had a conditional
right in the property and could only transfer a conditional right in the property. The impact of this rule, however, is limited by Article 2279 C.C.498
When an obligation is contracted under the condition that an event
will take place within a certain period of time, the condition is considered
fulfilled when the time has passed and the event has not taken place. If
no time is predetermined, the condition can always be fulfilled, it is only
considered unfulfilled when it has become certain that the event will not
take place (Article 1176 C.C.).
When an obligation is entered into under the condition that an event
will not take place within a certain time, the condition is fulfilled when
the time has passed and the event has not taken place. It is also considered
fulfilled when, before that time has passed, it has become certain that the
event will not take place and, if no time has been predetermined, when
it is certain that the event will not take place (Article 1177 C.C.). The
condition is considered fulfilled if the debtor, who has bound himself to that
condition, has prevented its fulfilment (Article 1178 C.C.).
498
W. VAN GERVEN and S. COVEMAEKER, o.c., 316.
21. Loss of ownership
21.3.
317
Abandonment
A property right in movables can be extinguished by abandonment of the
movable. Abandonment will usually serve to free the proprietor from the
costs to which the property obliges him.499 The act of abandonment is a
unilateral act. It does not indicate who will become entitled to the abandoned property. With regard to immovables, Article 713 C.C. provides that
they will belong to the State. With regard to movables, the general rules
on prescription will apply.
21.4.
Caducité?
The conditions of object and cause are traditionally considered conditions
for the valid creation of a legal act. Certain case law and literature hold
the opinion that they should continue to be present during the existence
of the legal act. If they disappear, the legal act itself can expire (become
“caduque”).
Since a decision of the Cour de Cassation of 28 November 1980, it is
accepted that a contract expires when specific performance is no longer
possible because the object has disappeared. The case concerned rent; the
rented property was materially destroyed. The Cour de cassation stated that
the contract was dissolved automatically by force of law because the contract was no longer fit for specific performance.500
On 12 December 1991, the Cour de cassation agreed that an option contract had expired when the object of the contract, a building, was destroyed
by a fire before the option had been exercised.501 In this case, the beneficiary
of the owner had not yet acquired ownership.
In cases where a contracting party already has acquired ownership, and
even in cases where a party only has acquired a right to use or hold the
property, or has possession of it, the contract seems to end by the material
destruction of the property itself and not by the caducité of the contract.
The only case in which caducité might lead to the loss of ownership is
in a barter contract where the right to property has already passed between
the parties but delivery has not yet taken place. If the object of party A’s
obligation perishes, the contract would expire depriving A of his ownership
499
500
501
Cass. 28 November 1980, Arr.Cass. 1980-81, 352, Pasicrisie 1981, I, 369 and
R.C.J.B. 1987, note P.-A. FORIERS.
Cass. 12 December 1991, Arr.Cass. 1991-92, 336, Pasicrisie 1992, 284, concl. Att.Gen. JANSSENS DE BISTHOVEN, R.W. 1992-93, 217, note A. CARETTE and
Rev. not. b. 1992, 107.
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318
of the property for which he had bartered. But then, it is uncertain whether
in such a case the caducité of the contract would be accepted, because the
delivery of the property bartered for the perished property is still possible.
It seems the solution to this problem has to be found in the theory of risk.
If the risk of the perished property has already passed to B, B still has to
deliver the property for which title has already passed to A. If the risk is still
with A, he will lose his right to claim delivery of the property for which he
has already acquired title.
In a decision of 16 November 1989, the Cour de Cassation held that
a donation expires if afterwards the determinant motive of the donator
disappears due to a cause independent of the donator’s will. In a decision
of 21 January 2000, the Cour the Cassation refined its position. Concerning testamentary wills, it stated that the donation only expires if the cause
disappeared before the death of the testator. At that moment the legatee
has not yet acquired title so that the caducité will not lead to a loss of title,
it will only prevent the legatee from acquiring the property. A decision of
12 December 2008 seems to have rejected the application of the doctrine of
the caducité because of the disappearance of the cause to gifts inter vivos.502
The doctrine of the caducité, because of the disappearance of the cause,
seems equally inapplicable to those legal acts for which there is a counterperformance – for which there is legal consideration.503
21.5.
Loss of ownership in other ways
One loses his property rights in a movable if it is no longer identifiable in
one estate, i.e. when it has been destroyed by a fire, or also when it is no
longer identifiable because it has been commingled with another property.504
Historically, movables have been lost by decrees of nationalisation by
which the government declared that certain goods formerly belonging to
private institutions, mostly ecclesiastical institutions, now belong to the
nation.505 Presently, the tendency is however rather to privatise public institutions than to nationalise private property.
Nationalisation, which leads to uncompensated property loss, is to be
distinguished from expropriation for public interest, which is a kind of
forced sale. The owner cannot refuse to sell, but he will receive compensation. Expropriation is still in use, but it normally concerns immovables.
502
503
504
505
Cass. 12 December 2008, Rev. not. b. 2009, 755.
S. STIJNS, o.c., n° 148, p. 107.
Comp. R. DEKKERS and E. DIRIX, o.c., n° 125, p. 55.
H. DE PAGE and R. DEKKERS, V, 1975, n° 752, 1°, p. 671.
319
Articles 42 and 43 of the Penal code provide the confiscation of goods that
have been used to commit a crime, that constituted the object of a crime
or that were produced by it (‘fruits of the crime’).
22.
The law of restitution of movables
Among the grounds for restitution, a distinction must be made between
the grounds that operate with retroactive effect and the grounds that do
not have retroactive effect. The annulment of a contract has retroactive
effect. That is also the case for dissolution due to non-compliance of the
contractual obligations by one of the parties and, finally, the revocation
of a gift because of non-compliance with the conditions on which the gift
was made subject.
These grounds of restitution result in the “restitutio status quo ante”,
e.g. parties must make restitution in such way that they are put in the
same situation as if no agreement had been entered into. The Belgian Supreme Court rules that “la resolution d’un contrat synallagmatique a pour effet
que les parties doivent être replaces dans le meme état que si elles n’avaient pas
contracté”.506
There is no agreement among legal scholars as to the legal grounds for
this restitution. Some legal scholars defend the view that these restitutions
must be effected according to the rules of undue payment (Article 1376
et seq. C.C.). As the contract must be considered to have never existed,
the performance of contractual obligations is considered as undue.507 According to others, the obligation to make restitution would be grounded in
the prohibition of unjust enrichment.508 This prohibition is not expressly
stated by the legislation, but has been recognized as a general principle of
law since the beginning of the 19th century. Still other scholars argue that
506
507
508
Cass. 24 March 1972, Pasicrisie 1972, I, 693.
Court of Appeal Mons 15 September 1992, Rev. not. b. 1995, 22; M.E. STORME,
“Het ingaan en de terugwerkende kracht van de ontbinding van wederkerige overeenkomsten”, T.B.B.R. 1991, 104; F. TROPLONG, Le droit civil expliqué suivant
l’ordre du Code. De la vente, Brussels, Tarlier, 1844, article 1601, n° 252.
P.-H. DELVAUX, “Les effets en droit belge de la résolution des contrats pour inexécution. Rapport belge”, in M. FONTAINE and G. VINEY (eds.), Les sanctions de l’inexécution des obligations contractuelles. Etudes de droit comparé, Brussels,
Bruylant, 2001, p. 674, n° 8; M. FONTAINE, “La rétroactivité de la résolution
des contrats pour inexécution fautive”, R.C.J.B. 1990, p. 401, n° 53; S. STIJNS,
Gerechtelijke en buitengerechtelijke ontbinding, Maklu, Antwerp, 1994, n° 213; P.
VAN OMMESLAGHE, “Examen de jurisprudence. Les obligations (1968-1973)”,
R.C.J.B. 1975, p. 622, n° 73 et seq.
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320
the obligation has an autonomous nature, which cannot be reduced to one
of the preceding legal institutions.509
Other grounds for restitution have no retroactive effect. This is notably
the case for the termination of a contract that has been entered into for an
indefinite period. These grounds will not be analyzed further, as they only
operate for contracts that do not have any translative effects.
22.1.
Fruits
We will first analyse the concept of fruits and the position of a good faith
possessor and a bad faith possessor with regard to the fruits. Afterwards, we
will investigate whether these principles apply to the restitutionary obligation.
22.1.1. Definition of fruits
Belgian law distinguishes between fruits and products. Fruits are the periodical gains of the property that do not reduce its value as such.510 A distinction is usually made between natural fruits and civil fruits. The Civil Code
also mentions fruits of industry of land.
Natural fruits are, besides the produce of the soil itself, the gains of animals and their offspring.511 Civil fruits are e.g. interests and sums of rent.512
Fictitious dividends do not constitute fruits but form part of the authorized
share capital.513 Fruits of industry of land are those realized by cultivation.514
Products are non-periodical gains of the property that diminish the size
and value of the property itself, e.g. minerals, timber trees.515 However,
certain products are equalized with fruits.516 This is the case for the products
of mines exploited at the moment the possession commenced. Generally
509
510
511
512
513
514
515
516
H. DE PAGE, Traité élémentaire de droit civil belge, II, Les incapables. Les obligations
(Première partie), Brussels, Bruylant, 1964, n° 817. Tribunal of commerce Antwerp 8
January 1951, J.T. 1952, 305; C. RENARD, E. VIEUJEAN and Y. HANNEQUART,
Théorie générale des obligations, in Les Novelles, Droit civil, Brussels, Larcier, 1957,
p. 617, n° 2101; R.P.D.B., v° Quasi-contrat, n° 283.
F. VAN NESTE, o.c., n° 250, p. 429-430; J. HANSENNE, I, n° 265, p. 270.
Article 583 C.C. See however article 547 C.C., where the natural fruits are mentioned besides the offspring of animals.
Article 584 C.C.
J. HANSENNE, I, n° 280, p. 279.
Article 583 C.C.
J. HANSENNE, I, n° 280, p. 279.
J. HANSENNE, I, n° 265, p. 270; F. VAN NESTE, o.c., n° 250, p. 430.
321
speaking, only the ones who are entitled to dispose of the movables, can be
entitled to the products. By contrast, a mere right to enjoy a movable (ius
fruendi) is sufficient to be entitled to the fruits.
Fruits of movables follow as a general rule Article 2279 C.C. The Civil
Code also contains special rules concerning fruits of movables as well as
immovables in the Article 549 et seq. These rules will usually give the possessor less protection and he will therefore prefer to claim the protection
of Article 2279 C.C. However, there are cases in which Article 549 et seq.
offers a better protection to the possessor than Article 2279 C.C. This will
for example be the case if the verus dominus revindicates a stolen or lost
movable within the period of three years mentioned in Article 2279 C.C.517
In what follows, only Articles 549 et seq. are dealt with.
The rules of Article 549 C.C. et seq. on restitution of fruits vary according to the possessor’s good or bad faith.
22.1.2. Good faith possession
Article 549 C.C. stipulates that a person who only has the possession of
property is entitled to its fruits if he possesses in good faith. This Article
only refers to the fruits dating from the period during which the possessor
gained possession in good faith of the property; it is not to be applied to
fruits dating from before that time.518 He is not allowed to keep the fruits
dating from after the introduction of the action unless they follow from
added value he has given the property.519
The rule that the possessor in good faith may keep the fruits is based
on equity. The possessor in good faith is victim of an excusable mistake.
Fruits are meant to be dispensed. Trusting the existence of his rights, the
possessor will have incurred expenses. If the real owner could, after several
months or years, claim his property and its fruits, this could ruin the possessor in good faith.520
The rule of Article 549 C.C. applies to real possessors. The object of
the possession does not matter: it also applies to possessors of a real right
in the property as far as that real right includes the right to the fruits (e.g.
ususfructus).521
517
518
519
520
521
J. HANSENNE, I, n° 282, p. 281.
Cass. 17 June 1852, Pasicrisie 1853, I, 435, concl. 1st Att.-Gen. DELEBECQUE;
F. VAN NESTE, o.c., n° 252, p. 431.
F. VAN NESTE, o.c., n° 252, p. 431.
F. LAURENT, VI, n° 203, p. 270-273; H. DE PAGE and R. DEKKERS, VI, n° 159,
p. 135; J. HANSENNE, I, n° 277, p. 277.
J. HANSENNE, I, n° 278, p. 278.
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322
The rule does not apply to mere detentors. But this does not imply that
mere detentors can never keep the fruits, just that they will not derive their
rights from Article 549 C.C. Nonetheless, their right to, e.g. rent may give
them rights to the fruits.522
The possessor in good faith is only entitled to the fruits, not to the
products.523
Article 549 C.C. does not specify at which moment the possessor acquires the right to the fruits. Articles 585 and 586 C.C. stipulate that the
rights of the ususfructor to the fruits come into existence at the moment
they are separated from the main property. The literature extends this rule
to the acquisition of a right to the fruits, according to Article 549 C.C.524
Article 550 C.C. stipulates that the possessor is (only) in good faith
if he possesses as an owner on the basis of a title of transfer of property
of which he does not know the defects. His good faith ends as soon as he
knows of the defects.
The word ‘title’ does not refer to an instrumentum, but to a certain legal
act.525 Judicial decisions giving rise to a transfer of property, such as judgements conferring a pledge to a creditor or adjudicating seized property, are
equivalent to legal acts.526
The judge’s decision concerning whether the possessor possesses in good
or in bad faith is an issue of fact, and as such it is sovereign.527
22.1.3. Bad faith possession
(a)
Principle: full restitution
The possessor in bad faith – for instance a thief – has to return the gains
with the property to the owner who claims his property. As a rule, restitution has to be effected “in full”. The possessor in bad faith has to return
all the fruits he has received, irrespective of whether he still has them or
whether he has consumed them; in the latter case he has to make restitution of the value of the consumed fruits.528
522
523
524
525
526
527
528
J. HANSENNE, I, n° 279, p. 278.
J. HANSENNE, I, n° 280, p. 279-280.
J. HANSENNE, I, n° 283, p. 282; H. DE PAGE and R. DEKKERS, VI, n° 175, p. 143144; F. LAURENT, VI, n° 206, p. 275-276.
J. HANSENNE, I, n° 286, p. 284.
J. HANSENNNE, I, n° 286, p. 285.
F. VAN NESTE, o.c., n° 251, p. 430.
J. HANSENNE, I, n° 269, p. 272.
323
The possessor in bad faith even has to make restitution of the fruits he
neglected to receive.529 Moreover, he must pay compensation to the owner
for any fruits received by a third party in good faith, to whom he has transferred the property; this includes during the time after which the good faith
of the third party has ceased.530 It is suggested by legal scholars that, in cases
in which the restitution has to take the form of compensation, the value of
the fruits should be valued at the moment of the restitution.531
The possessor in bad faith is also indebted to the real owner for interest
on the fruits. As possession in bad faith is a delict, the interests run from
the moment the possessor in bad faith has received the fruits, even if this
moment is before the introduction of the action in revindication.532
(b)
Exception: moderations
The possessor in bad faith is entitled to request compensation for the production costs.533 This rule is based on the theory of necessary costs and more
generally on the principle that nobody should be enriched, absent cause,
at another’s expense.534
The possessor in bad faith does not have to make restitution of the
fruits he has not received if he can prove that the owner would not have
been able to receive them either.535 The possessor in bad faith also cannot
be required to pay the interest on the value of the property by means of
restitution of the fruits, when the property does not produce fruits.536
When the revindication fails because the possessor has acquired title to
the property, the action in restitution of the fruits against the possessor fails
as well.537 According to French legal scholars, the possessor in bad faith is
entitled to keep the portion of the fruits that is the result of his personal
industry.538
529
530
531
532
533
534
535
536
537
538
J. HANSENNE, I, n° 269, p. 272.
J. HANSENNE, I, n° 269, p. 272.
J. HANSENNE, I, n° 270, p. 273.
J. HANSENNE, I, n° 271, p. 273. Also H. DE PAGE and R. DEKKERS, VI, n° 155,
p. 134.
F. VAN NESTE, o.c., n° 251, p. 430. Arg. article 548 C.C. that stipulates that the
fruits of property belong to its owner under the obligation to compensate the costs
of ploughing, cultivation and sowing.
J. HANSENNE, I, n° 273, p. 275.
J. HANSENNE, I, n° 271, p. 275.
J. HANSENNE, I, n° 271, p. 275.
J. HANSENNE, I, n° 272, p. 275.
J. HANSENNE, I, n° 272, p. 274.
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324
22.1.4. Application to the obligation of restitution
The question whether the debtor of a restitutionary claim will be able to
invoke Article 549 C.C. if he is in good faith, is uncertain. The application
of this provision is difficult to reconcile with the obligation to restore the
situation as if no contract had been entered into, if the termination of the
agreement has retroactive effect (“restitutio status quo ante”).
Most Belgian authors argue that this argument prevails and the debtor
of the restitutionary claim is not entitled to keep the fruits. He could not
be considered a possessor in good faith.539 Complete restitution would, according to this view, also include restitution of the fruits. However, this
contravenes French case law and legal scholarship, where Article 549 C.C.
is applied to obligations to make restitution.540
22.2.
Loss and deterioration
22.2.1. Restitution following revindication
The bad faith possessor, i.e. the possessor who knows he is unlawfully in
possession of the property, is liable for all losses irrespective of whether
he caused them fraudulently, negligently or whether they are the result of
force majeure, and irrespective whether they date from before or after the
introduction of the action in revindication. However, he is not liable for
accidental losses if he proves that these would also have occurred if the
property had remained with its real owner (arg. Article 1302 C.C.).541
The good faith possessor is only liable for losses finding their origin in
an event dating from before the introduction of the action in revindication. This rule is justified by the idea that the possessor was, until that
time, entitled to believe the property was his. It results that he should not
compensate the real owner, not even if the losses are caused voluntarily.
However, he is liable for losses caused negligently or voluntarily after the
introduction of the action in revindication. Indeed, at that time, an obligation arises to conserve the property, which he may have to return.542
With regard to the restitution after retroactive termination of a translative agreement, most scholars do not make a distinction between the debtor
539
540
541
542
H. DE PAGE, II, n° 827; F. LAURENT, Principes, XIX, p. 66, n° 64.
Cass. fr. 20 June 1967, D. 1968, 32, J.C.P. 1968, II, n° 15262, note J.A. and Rev.
trim. dr. civ. 1968, 337, note BREDIN; G. BAUDRY-LACANTINERIE, Traité, XIV,
n° 1969.
J. HANSENNE, I, n° 673, p. 624-625.
J. HANSENNE, I, n° 673, p. 625.
325
in good faith and the debtor in bad faith. The debtor of the restitutionary
obligation is bound by an obligation to reach that result. If the property has
perished or the value of the property has diminished beyond the normal
“usure”, he will have to restore the property at his own expense.543
However, the debtor of the restitutionary obligation is discharged if
the property has perished pursuant to vis maior.544 It must be taken into account that this obligation to make restitution is only one side of a mutual
obligation. If the debtor of the restitutionary obligation is discharged, the
other party (the seller) is entitled to refuse repayment of the price.545 The
economic risk would, according to this view, be on the purchaser who cannot make restitution.
22.2.2. Restitution at the end of a contract of lease
At the expiration of the lease term, the lessee has to return the property in
the same condition it was in at the beginning of the contract. The lessee
is liable for losses and deterioration during the time of the lease, unless he
proves he was not at fault (Article 1732 C.C.).
Here several rules have to be combined to determine the liability of the
borrower for loss or deterioration of the property. Article 1884 C.C. stipulates that the borrower should return the property in the state it was in
when he received it, except for deterioration caused by normal usage and
by an extraordinary cause (cause étrangère). The borrower has the burden
of proving the extraordinary cause.
But, if the state of the property at the moment of delivery is not proved
by the lender, the borrower seems to be relieved of his duty of restitution if
he returns the property timely in the state it was in at the end of the contract; this is unless the lender proves it deteriorated due to the borrower’s
fault or of that of people for whom he was liable. If the borrower does not
return the property timely, he is liable for the losses and deterioration the
property has suffered since the borrower is on notice of his non-compliance
543
544
545
T. STAROSSELETS, l.c., p. 80, n° 26.
J. LIMPENS, o.c., n° 1782; T. STAROSSELETS, l.c., p. 83, n° 36.
Belgium
326
As the lender remains the owner of the property, he bears the risk for
accidental loss during the period of the loan. However, several exceptions
to this rule exist.546
The borrower is responsible for the loss of the property, even if he accidentally uses the property for a purpose other than the one for which it
is meant, or when he keeps the property for longer than the agreed time
(1881 C.C.). According to Article 1302 C.C., the obligation of restitution
of certain property disappears even when the debtor does not return the
property on time and even if the risk rests on him, if he proves that the
property would have perished even had he returned it on time. It is disputed
whether this article applies to the contract of loan.
The risk rests also on the borrower when he could have prevented the
loss of the borrowed property by using his own property, or when the borrower deliberately chose his own property over that of the borrowed property when he could only save one of the two (Article 1882 C.C.). Further,
the risk rests on the borrower if the property was valued by agreement
between the parties in the beginning of the contract (Article 1883 C.C.).
The estimation of value creates a reversible presumption that the borrower
accepted the risk.
The depositary only needs to return the property in the state it is in at the
moment of the restitution (Article 1933 C.C.), but he has to return it. In
case the depositary does not return the property, he is presumed liable. He
can only overcome this presumption by proving an extraordinary cause
(cause étrangère).547 In fact the courts are satisfied if the depositary proves
that he has taken all measures necessary for a careful preservation of the
property. Force majeure is then accepted if the depositary proves that he has
done everything that can be expected from a careful person placed in the
same circumstances.548
The pledgee has to return the pledge at the moment of the extinction of the
main debt. The pledgee will only be relieved from his obligation to return
the pledge if he proves that the pledge has perished by accident or force
546
547
548
For these exceptions, see articles 772 et seq. C.C.
327
majeure (Article 1147, 1148, 1302 C.C.). If compensation is paid by a third
party for the perishing of the pledge, the right of pledge is then transferred
to that compensating third party.549
22.2.6. Restitution following an action based on an undue payment
Concerning corporeal movables, restitution takes place in natura if the
property still exists and if the property has decreased in value or has deteriorated due to the fault of the accipiens. The accipiens in bad faith even has
to stand in for accidental loss (Article 1379 C.C.). If the accipiens in good
faith has already sold the property, he only has to pay the price of the sale
22.3.
Reimbursement for improvements and expenses incurred
during the possession of the movable
22.3.1. Restitution after revindication
Except when special rules exist, the obligations of reimbursement after
revindication are determined by the theory of expenses. This theory states
that necessary and useful costs have to be compensated, but not mere luxury
expenses.550
Necessary expenses are those that are necessary for the preservation of
the property (for instance, insurance premiums or expenses of repair); useful
expenses are those that realize added value. Luxury expenses are those that
are for mere personal satisfaction and only have a subjective usefulness.551
Legal scholars add a third category of costs: costs of maintenance. The
underlying reasoning is that maintenance costs are usually paid with the
revenues of the property and, as we have seen, the possessor in good faith
is entitled to keep the revenues dating from before the introduction of the
action in revindication; it is therefore logical to leave the maintenance
costs for his account.552
With regard to the restitution after retroactive termination of a translative agreement, the debtor of the restitution may not claim any compensation for the increased value to which the object has been subject due to
549
550
551
552
Cass. 23 December 1943, Arr.Cass. 1944, 60 and Pasicrisie 1944, I, 123.
Civ. Leuven 23 March 1988, R.W. 1989-90, 824, note.
J. HANSENNE, I, n° 675, p. 626-627. Comp. H. DE PAGE and R. DEKKERS, VI,
n° 152, 3°, p. 132-133.
Belgium
328
purely economic developments.553 The debtor can however claim compensation for the improvements that are due to his activity, regardless whether
he is in good or in bad faith.554
With regard to the expenses of maintenance, it emerges from case law
that these expenses are often set off against the right of use and enjoyment
with regard to the property. As a consequence, the seller would not be
obliged to reimburse these expenses if the purchaser is not obliged to make
restitution of the fruits.555
22.3.2. Restitution at the end of the rental contract
The lessee has the duty to use the property in conformity with its kind and
its intended purpose (Article 1728, 1° and 1730 C.C.).
Apart from divergent contractual stipulations, the lessee is not entitled
to build or rebuild the property. At the most he can make removable adaptations in conformity with the purpose of the property. At the end of the
contract, the lessee can remove them. If he does not do so, the lessor can
demand their removal. If lessor prefers to keep them, a compensation based
on unjust enrichment is due.556 If the lessee carried out non-removable
works, the lessor can demand their removal as well as restitution of the
property in its original state and damages. The lessor can also decide to
keep the works without having to pay any compensation.557
If the lessor gave the lessee permission to carry out certain works, parties
will usually have made an agreement concerning possible compensation
duties at the end of the contract. If not, and if the works are removable, the
same rules as explained above seem to apply.558 Concerning non-removable
works, it is sometimes said that they should be compensated on the basis
of the theory of costs.559
553
554
555
556
557
558
559
H. DE PAGE, II, n° 828; T. STAROSSELETS, l.c., p. 79, n° 24. Contra: J.
HANSENNE, II, n° 721.
J. HANSENNE, I, n° 273; T. STAROSSELETS, l.c., p. 79, n° 24;
Cass. 23 April 1965, Pasicrisie 1965, 883 and R.W. 1965-66, 1158. According to this
judgement the compensation consists of the surplus-value of the property and not
of the price paid for the improvements and the materials. In fact the application of
the rules on unjust enrichment would lead to an obligation to pay the smaller sum
of the two: the impoverishment or the enrichment.
329
The lender will have to compensate the borrower for the exceptional expenses for the preservation of property that were so urgent that the borrower could not inform the lender in advance (Article 1890 C.C.).
The borrower is not entitled to carry out improvements on the property. If he does, the owner seems to have the choice to either demand the
borrower remove them (if possible) and / or claim damages, or keep the
improvements without being held to pay for them.
The depositor has to compensate the depositary for the costs he made for
the preservation of the property and for the loss the deposit caused him
The depositary is not entitled to carry out improvements on the property. If he does, the owner seems to have the choice to either demand the
depositary remove them (if possible) and / or claim damages, or keep the
improvements without being held to pay for them.
The pledgor has to compensate the pledgee for all the useful and necessary costs of maintaining the property (Article 2080 C.C.). Article 20, 4°
Mortgage Act attributes to the pledgee a privilege for the payment of this
compensation.560
22.3.6. Restitution following an action based on undue payment
The person to whom the property is returned has to compensate the accipiens, even the accipiens in bad faith, for all the necessary and useful expenses
for the preservation of the property (Article 1381 C.C.).
560
Belgium
330
22.4.
Possessor’s right to retain the movable
22.4.1. Introduction
The Civil Code does not organise a general right of retention. It only recognizes certain applications of it (e.g. Article 570, 867, 1612, 1673, 1749,
1948, 2028, 2087 C.C.).
However, case law and legal scholarship have elaborated a more general
right of retention, which is available as soon as the conditions of application are fulfilled.
22.4.2. Definition
The right of retention is defined as the right of a creditor to retain property
he has as a detentor until the debt concerning that property is paid.561
22.4.3. Conditions
The right of retention is based on a material connection between an action
and a certain movable (debitum cum re iunctum).562 The necessary material
connection is available when an action of the possessor is narrowly connected to a movable belonging to his debtor.563 According to certain case
law and legal scholarship, the right of retention can also be based on a legal
connection between an action and (an obligation to make restitution of)
a movable.564
561
562
563
564
H. DE PAGE and R. DEKKERS, VI, n° 793B, p. 749; E. DIRIX, “Retentierecht” in
Voorrechten en Hypotheken, Commentaar met overzicht van rechtspraak en rechtsleer,
Mechelen, Kluwer, 1999, n° 1.
Liège 7 June 1996, J.L.M.B. 1997, 633; J.H. HERBOTS, “L’exception d’inexécution
et la mesure à garder dans le contrat de bail”, R.C.J.B. 1990, (563), n° 9, p. 571;
H. VANDENBERGHE, Voorrechten en hypotheken, Leuven, Wouters, 1998, p. 37,
n° 38.
Com. Antwerp 27 May 1964, R.W. 1965-66, 638; Pres. Com. Antwerp 8 August
1990, Rechtspraak Haven van Antwerpen 1992, 54; H. DE PAGE, VI, n° 813, p. 773.
Concl. Att.-Gen. KRINGS, Cass. 7 October 1976, Pasicrisie 1977, I, 154; Brussels 7 December 1977, J.T. 1978, 330; A. CLOQUET, “Over twee twistpunten ter
zake van het retentierecht”, R.W. 1954-55, (161) 161; P. VAN OMMESLAGHE,
“Observations sur les effets et l’étendue du droit de rétention et de l’ “exceptio non
adimpleti contractus” spécialement en cas de faillite du débiteur”, R.C.J.B. 1963,
(69), p. 73, n° 3.
331
In fact, it is generally accepted that under certain circumstances, a legal
connection can suffice for the creditor to retain the movable. Only certain
case law and legal scholarship prefer to call it the possessor’s right of retention based on a legal connection between the action and the movable
exceptio non adimpleti contractus.565
To retain the movable, the possessor needs an actionable566 right against
the party that demands the restitution of the movable / or its owner.
The possessor’s action needs also to be certain (i.e. not contested).567 It
need not be liquidated i.e. precisely defined in terms of money.568
The debtor must fail to execute his obligation voluntarily.569
The right of retention needs to be exercised in good faith;570 the possessor may not abuse his right of retention. The main criterion for abuse of a
right is: use of a right in a way that is obviously not in conformity with the
normal use of that right by a careful and concerned person.571 This criterion
565
566
567
568
569
570
571
E.g. Cass. 7 November 1935, Pasicrisie 1936, I, 38; H. DE PAGE, VI / 2, n° 792 / C,
p. 751-752; L. LAMINE, Het retentierecht, in Recht en Praktijk, Deurne, Kluwer, 1993,
p. 54-57, nrs. 75-78.
E. DIRIX, “Retentierecht” in Voorrechten en hypotheken, n° 8; E. DIRIX and R. DE
CORTE, Zekerheidsrechten, in Beginselen Belgisch Privaatrecht, Antwerp, Story-Scientia, 1999, n° 519, p. 347. M.E. STORME (“De exceptio non adimpleti contractus
als uitlegvraag. Uitwerking van enkele aspecten in de verhouding tussen partijen,
meer bepaald evenredigheid en volgorde van de prestaties en bewijslast”, R.W. 198990, p. 316, n° 9 and p. 317, n° 11) specifies concerning the exceptio non adimpleti
contractus that the action should not necessarily be actionable: only, the excipiens
should not be held to previous performance. When both of the obligations are
not actionable, both parties can postpone their obligations. Also, in certain cases
prescription could not be invoked.
Com. Mons 18 September 1978, B.R.H. 1979, 88 and J.T. 1979, 219; Justice of the
Peace Sint-Niklaas 14 January 1991, R.W. 1991-92, 1436; E. DIRIX, “Retentierecht”
in Voorrechten en hypotheken, n° 8; P. HEURTERRE, o.c., T.P.R. 1992, n° 50, p. 1309.
CORTE, o.c., n° 519, p. 347; J.-L. FAGNART, o.c., R.C.J.B. 1979, p. 14, n° 5.
E. DIRIX and R. DE CORTE, o.c., n° 519, p. 348.
Justice of the Peace Sint-Niklaas 14 January 1991, R.W. 1991-92, 1436; E. DIRIX, “Retentierecht” in Voorrechten en hypotheken, n° 12; E. DIRIX and R. DE CORTE, o.c.,
n° 519, p. 348; L. LAMINE, o.c., p. 82-83, nrs. 123-127. Concerning the exceptio non
adimpletu contractus: Cass. 18 March 1971, Arr.Cass. 1971, 697 and Pasicrisie 1971, I,
669; J.H. HERBOTS, “De exceptie van niet-nakoming”, T.P.R. 1991, n° 16, p. 387.
Cass. 20 November 1987, Arr.Cass. 1987-88, 359, R.W. 1987-88, 1099, Pasicrisie
1988, I, 337 and Bull. 1988, 337; Cass. 18 February 1988, Arr.Cass. 1987-88, 790,
R.W. 1988-89, 1226, Pasicrisie 1988, I, 728, Bull. 1988, 728 and T.B.H. 1988, 696;
Cass. 1 February 1996, Bull. 1997, 158 and Arr.Cass. 1996, 139.
332
Belgium
has been divided into a number of more precise criteria.572 The criterion
that is used most is that of proportionality between the damage caused and
the benefit intended or received.573
On the basis of this principle, a moderation was needed of the traditional opinion that the right of retention is indivisible, which implies that
the possessor may retain all the property as long as his debtor has not paid
all of his debt.574 At present it is accepted that the retention should be proportionate to the non-payment.575 However, the courts do not and should
not too easily find an abuse of right.
Abuse of the right of retention (normally) will be further found if the
possessor himself caused the non-payment of his debt, which he has invoked to justify the right of retention.576
The retentor needs to have factual power over the movable: he needs
to have it factually in his possession or have it held for him by another
person and he must have acquired that power in a lawful way.577 In fact,
the retentor only needs to have detention over the movable,578 possession
pro suo is not necessary. The possessor can only retain the property if he
personally has an action against the owner of the property; he cannot retain
the property in protection of another person’s action.579
Once the creditor has relinquished his power over the property, the
right of retention is permanently lost; it does not “revive” when the credi-
572
573
574
575
576
577
578
579
On these criteria, see S. STIJNS, “Abus, mais de quel(s) droit(s)? Réflexions sur
l’ exécution de bonne foi des des contrats et l’ abus de droits contractuels”, J.T. 1990,
(33) 40-41.
Cass. 30 January 1992, R.C.J.B. 1994, 185, note P.A. FORIERS, J.L.M.B. 1992 (abstract), 650, Bull. 1992, 475, R.R.D. 1992, 256, Pasicrisie 1992, I, 475, R.W. 1993-94,
1023 and Arr.Cass. 1991-92, 497. For an application concerning the right of retention, see Justice of the Peace Sint-Niklaas 14 January 1991, R.W. 1991-92, 1436.
J.-L. FAGNART, o.c., R.C.J.B. 1979, n° 22, p. 30.
J.H. HERBOTS, o.c., T.P.R. 1991, n° 27, p. 392-393; J.H. HERBOTS, o.c.,
R.C.J.B. 1990, (563), n° 24, p. 587-588.
E. DIRIX, “Retentierecht” in Voorrechten en hypotheken, n° 8.
Com. Brussels 7 September 1987, J.T. 1988, 607; H. DE PAGE, VI, n° 813, p. 772;
CORTE, o.c., n° 519, p. 347; L. LAMINE, o.c., p. 61, n° 88; H. VANDENBERGHE,
o.c., p. 34, n° 31.
E. DIRIX and R. DE CORTE, o.c., n° 519, p. 347 ; H. VANDENBERGHE, o.c.,
n° 29, p. 35.
H. VANDENBERGHE, o.c., p. 34, n° 33.
333
tor regains possession over the property580 (except when he regains the
property in the course of the same legal relationship).581
If the creditor involuntary loses possession of the property, he is able
to claim the restitution of the property after which his right of retention
revives. The creditor can claim revindication on the basis of Article 2279
C.C. (which might however fail when the real owner takes possession of
the property).582 According to some scholars, the creditor can also base his
claim on Article 1382 C.C. and the principle that the damage caused by a
fault has to be compensated in natura.583 The creditor can further proceed
to a “revindicative seizure” measure (Article 1462 et seq. C.C.).584 Given
the rule of Article 2279 C.C, this is however impossible against a third
party in good faith.585
According to a certain opinion, the right of retention can only be exercised over property that is fit for seizure.586 Other legal scholars only give
a very narrow scope to this exclusion,587 and still others disapproved of the
opinion.588
Articles 1613 and 1653 C.C. provide that the right to retain the movable ends if other sufficient security is offered. According to a classic au580
581
582
583
584
585
586
587
588
Brussels 26 February 1997, R.W. 1997-98, 1340; H. VANDENBERGHE, o.c., n° 33,
p. 36.
E. DIRIX, “Retentierecht” in Voorrechten en hypotheken, n° 10 and 45; E. DIRIX and
R. DE CORTE, o.c., n° 519, p. 347.
E. DIRIX, “Retentierecht” in Voorrechten en hypotheken, n° 11; L. LAMINE, o.c.,
L.S. HEYNING-PLATE and G. SUETENS-BOURGEOIS, “Enkele beschouingen
over het retentierecht naar Belgisch en Nederlands recht”, T.P.R. 1970, 198. Contra:
L. LAMINE, o.c., n° 100-101, p. 66-67.
E. DIRIX, “Retentierecht” in Voorrechten en hypotheken, n° 11; H. VANDENBERGHE, o.c., n° 34, p. 36.
Brussels 1 December 1988, J.T. 1989, 76 and R.R.D. 1991, 167; Pres. Com. Bruges
18 November 1991, R.W. 1992-93, 1380.
According to certain scholars one should distinguish between the reason why property is declared unfit for seizure. E. DIRIX and R. DE CORTE, o.c., n° 519bis, p. 349;
L. LAMINE, o.c., n° 85, p. 60). Example: If the unfitness for seizure only serves to
prevent that it would be sold against the debtor’s will (e.g. objects necessary for the
execution of his religion), retention would possible. If the property is declared unfit
for seizure to ensure the debtor’s continuous use (e.g. bedding), retention would be
allowed (see L. LAMINE, o.c., n° 85, p. 60).
H. DE PAGE, Traité, VI, n° 811, p. 771; A. VERBEKE and I. PEETERS, Vijf jaar
voorrechten, hypotheken en andere zekerheden 1991-1995, Ghent, Mys en Breesch,
1997, n° 171, p. 95.
Belgium
334
thoritative author, this rule may not be extended to other cases.589 Recent
case law590 and legal scholarship591 however also accept that in other cases
than those foreseen by the mentioned articles, the right of retention may
end if a sufficient security is offered.
The right of retention may not make the performance of the obligation of the retentor entirely or partially permanently impossible, or cause
any permanent damage.592 This rule will often hinder the suspension of
continuous obligations, e.g. obligations of continuous provision of the use
of the property, for example in cases of rent. An author specified that the
suspension may not render the performance of one’s own obligation permanently impossible, unless the conditions for a final settlement are fulfilled,
e.g. resolution of a contract or seizure.593
22.4.4. Real or personal nature
An important part of Belgian legal scholarship considers the right of retention a mere personal defense and denies it every real effect.594 The right of
retention would not provide the creditor any right on the property itself,
nor would it provide him a right of preference or a right to follow the property. Nevertheless it is generally accepted that the creditor has the right to
oppose the right of retention, not only against his debtor and his debtor’s
successors under general title, but also against his debtor’s other creditors.
A possible explanation for this external effect can be found in the nature of the right of retention: a type of “taking the law into one’s own
hands” accepted by law and finding its foundation in the factual power
over the property.595 This approach would however lead to the conclusion
that the opposability of the right of retention should be accepted in all
589
590
591
592
593
594
595
H. DE PAGE, Traité, VI, n° 817, p. 777-778.
Brussels 23 February 1994, DAOR 1994, n° 31, 103.
A. VERBEKE and I. PEETERS, o.c., n° 173, p. 97-98. Also: E. DIRIX, “Retentierecht” in Voorrechten en hypotheken, n° 13 who thinks that the refusal of a sufficient
security may be seen as contrary to the condition that the right of retention must
be exercised in good faith. Some authors defend a more strict vision: see e.g. L.
LAMINE, o.c., p. 157-159, n° 234-236 who distinguishes between reciprocal and
non-reciprocal obligations.
For the exceptio non adimpleti contractus: J.H. HERBOTS, o.c., R.C.J.B. 1990, n° 25,
p. 589-590; J.H. HERBOTS, o.c., T.P.R. 1991, n° 28, p. 393-394; M.E. STORME,
o.c., R.W. 1989-90, n° 19, p. 321-322.
M.E. STORME, o.c., R.W. 1989-90, n° 19, p. 321-322.
H. DE PAGE, VI, n° 823, p. 783.
J.H. HERBOTS, o.c., T.P.R. 1991, n° 39, p. 398.
335
cases. This indistinct result does not conform to the resolutions developed
by case law. The only satisfactory way to explain the external effect of the
right of retention and conflicts with diverse third-party real rights of possession, consists in the recognition of the real effect of the right of retention.
Conflicts with other real rights are generally resolved by the anteriority
principle.596
22.5.
Expenses and place of restitution
22.5.1. Restitution pursuant to avoidance of the contract
As explained before, the avoidance of a contract terminates the contract
ex tunc. The parties have to be restored to the position that would have
been theirs if the contract had never been concluded. This implies that
the parties have to make restitution of everything they have received in
performance of the contract. If one of the parties is at fault for the voidness
of the contract, he has to bear the costs of the restitution of the movable.
If neither of the parties has committed a pre-contractual fault, each party
has to bear its own costs.
In most cases parties will agree on the time and place for restitution of
the property. If they cannot reach an agreement, it is arguable that it has
to be returned at the place where the property was situated at the time the
contract was concluded. This option seems to be most in line with the
general rule that the parties have to be restored to the situation that would
have been theirs if the contract had never been concluded. One could
however argue that Article 1247 C.C. should be applied mutatis mutandis.
This would imply that, if certain and defined property is concerned, the
property should be returned at the place where it was situated at the time
the debtor’s obligation came into existence, i.e. the time the contract was
declared void. In any other case it should be returned at the domicile of the
debtor, i.e. the person who has to return the movable.
22.5.2. Restitution when the right to use is invalidated
The invalidity of the right of use will usually follow from the invalidity of
the contract by which the right of use has been accorded. The same rules
as under 22.5.1. will apply.
596
Belgium
336
22.5.3. Restitution when the right to use has ended
In contracts governed by the Civil Code, such as rent and loan, the user is
under an obligation to make restitution of the property at the end of the
contract. The expense of the restitution is for the user. Time and place of
restitution are usually contractually foreseen. If the place for restitution is
not defined in the contract, Article 1247 C.C. has to be applied. If certain
and defined property is concerned, the property should be returned at the
place where it was situated at the moment the user’s obligation came into
existence, i.e. time of conclusion of the contract. In any other case it should
be returned at the domicile of the debtor, i.e. the person who has to return
the movable.
Because the system of obligations is “open”, parties can agree on other
contracts providing a temporary right of use. They too seem necessarily to
imply an obligation to make restitution of the property at the end of the
contract.
22.5.4. Restitution in case of theft and similar cases
Expenses of restitution are for the thief as part of the compensation due
by him.
23.
Retention of title
23.1.
General overview
Ownership for security purposes in many European systems is the “queen
of the security rights”.597 It confers on the creditor not a limited real right,
which has to be executed in case of insolvency of the debtor, but full ownership in such a way that the property remains outside the estate of the debtor.
Belgian law has however for many decades taken a rather hostile position with regard to retention of title. A title retention did not affect the
validity of the agreement, but Belgian law did not recognize the opposability of title retention. In other words: title retention was considered a valid
clause, but this clause did not have any proprietary effects.
597
J. STOUFFLET, “L’usage de la propriété à des fins de garantie” in A. BRUYNEEL
and A.M. STRANART (eds.), Les sûretés, Brussels, Feduci, 1983, 320, n° 2.
337
This case law deprived title retention of its usefulness. As title retention
could not be invoked by the seller against the competing creditors of the
purchaser, it did not grant any security to the creditor.598
23.2.
Legal categorization of title retention
The qualification of title retention is the object of doctrinal debate. According to the majority opinion, title retention constitutes a suspensive
condition to which the transfer of ownership is made subject.
According to some legal scholars, title retention would create a mere
real security right without any public notice.599 These authors argue that
title retention is nothing more than a pledge in favour of the seller without
dispossession of the pledgor (purchaser). The main argument in favour of
this view is the fact that the purchaser is protected in case of insolvency of
the seller. The seller is entitled to vindicate the assets out of the insolvency
estate if he duly performs the payment of the purchase price.600 This entails
that his position is protected by a kind of property right (the German “Anwartschaftsrecht”), which would not be justified if one considers the title
retention as the retention of full ownership.
However, another view is also defended. The main difference is that
a real security right is granted / vested, while in title retention ownership is
retained. The proprietary effects of a real security right are suspended until the opening of an insolvency proceeding against the debtor, while the
proprietary effects are operating from the moment of the sales agreement.
Until that moment, the principle “prior tempore, potior iure”, is prevailing.
That is different from the functioning of title retention. The retained prop598
599
600
Cass. 9 February 1933, Pasicrisie 1933, I, 103 concl. Proc. Gen. LECLERCQ. This
judgement was more recently confirmed in Cass., 22 September 1994, R.W. 1994-95,
1264, note E. DIRIX.
In support of this view: M.E. STORME, “Van trust gespeend? Trusts en fiduciaire
figuren in het Belgisch privaatrecht”, T.P.R. 1998, p. 723, n° 24; F. T’KINT and
W. DERYCKE, “Dessaisissement et situation des créanciers en cas de faillite” in Le
nouveau droit du concordat judiciaire et de la faillite: les lois des 17 juillet et 8 août 1997,
Brussels, Bruylant, 1997, p. 206, n° 39.
This rules is imposed by the European Regulation n° 1346 / 2000 of 29 May 2000 on
Insolvency Proceedings on a European PIL-level: “The opening of insolvency proceedings against the seller of an asset, after delivery of the asset, shall not constitute
grounds for rescinding or terminating the sale and shall not prevent the purchaser
from acquiring title where at the time of the opening of proceedings the asset sold is
situated within the territory of a Member State other than the State of the opening
of proceedings”.
338
Belgium
erty has never been part of the insolvency estate of the purchaser. A title
retention operates from the moment of the sales agreement, not from the
moment of the insolvency. The seller under title retention does not have a
priority over the sold property, rather this property remains excluded from
the insolvency estate.601
In conclusion: title retention can, from a legal point of view, not be
identified with a real security right, even if the economic finality of both
is similar. Pursuant to the prevailing view in French law, Belgian scholars
do not qualify title retention as a real security right, but as a guaranty with
proprietary effects. It is closer to a full ownership than to a real security
right.602 The assimilation between title retention and real security rights
was also rejected by the Belgian parliament during the preparatory works
of the Bankruptcy Act (1997).603
This debate is not merely theoretical, but has major practical implications. If one agrees that title retention creates a real security right, the
exercise would automatically extinguish the obligation to which it is connected.604 However, it is mostly argued that the exercise of title retention
does not extinguish the guaranteed obligation. After the exercise of the
title retention, the seller will have to effect the termination of the sales
agreement.605 This will be easily possible because of the non-compliance
of the purchaser.
If the second view prevails, the seller is not obliged to declare his claim
within the time period set forth for creditors (even those with real security
rights).606
The statutory provisions do not clearly distinguish the issue of who
bears the risk for deterioration or destruction of the property under title
retention. Most legal scholars defend the view that the seller has the risk
601
602
603
604
605
606
H. DE PAGE, VII, n° 11.
V. SAGAERT, Zakelijke subrogatie, n° 164 et seq.; G. SCHRANS, “Het beding van
eigendomsvoorbehoud en zijn externe werking tegenover de schuldeisers van de
koper van een zaak”, T.P.R. 1982, 151, fn. 20.
Amendement n° 5 of the Government, Parl. Proceedings Chamber of Representatives 1995-96, n° 330 / 2, 6-7.
In this sense: A.M. STRANART, “Rapport de synthèse”, in Les sûretés. Colloque de
Bruxelles des 20 et 21 octobre 1983, Paris, Feduci, 1984, 567.
A.P.R., v° Afbetalingsovereenkomsten, n° 403-404; comp. M. GREGOIRE, “Questions liées à l’invocation d’une clause de réserve de propriété” in Mélanges offerts à
Pierre Van Ommeslaghe, Brussels, Bruylant, 2000, p. 483, n° 25.
Defending the same opinion: M. GREGOIRE, “Questions liées à l’invocation de
la clause de réserve de propriété”, l.c., p. 479-480, n° 20; V. SAGAERT, Zakelijke
subrogatie, n° 169.
339
until the moment ownership passes (i.e. sales price has been paid).607 However, parties can contractually stipulate differently.
23.3.
Conditions for the proprietary effects of title retention
Belgian law was one of the last European legal systems to introduce proprietary title retention. Finally, the proprietary effects of title retention have
been recognized in the amendment of the Bankruptcy Act of 8 August
1997. This amendment was largely and clearly inspired by the French provisions on title retention.
The conditions for invoking title retention against other creditors of the
purchaser are set out in Article 101 Bankruptcy Act. This provision rules as
follows: “The bankruptcy proceeding does not impede the right of vindication of
the owner of property that is in the possession608 of the debtor” (free translation).
However, movable property that has been sold on the condition that
transfer is suspended until full payment of the sales price can be vindicated
on the grounds of that clause if it has been agreed in writing, at last at the
moment of the delivery of the property. Moreover, the property must be in
natura in the possession of the debtor and must not have been made immovable by incorporation or commingling with other movable property. The
claim in restitution cannot be brought after the moment that the document
that numbers the assets and debts is closed.
Although only the Bankruptcy Act recognizes the opposability of title
retention, this opposability is also accepted in other cases of insolvency
such as collective debt arrangements (civil bankruptcy), liquidation of
companies and reorganisation proceedings.
Article 101 Bankruptcy Act clearly expresses that title retention cannot
be exercised after the commingling of the property under title retention
with private property of the purchaser. However, it is common opinion
that a co-ownership can come into existence among the different sellers
of this category of property.609 They can globally claim restitution of their
property. We can refer to supra, Part IV, 23, for a more in depth analysis of
the effects of title retention.
A “Verarbeitungsklausel”, as in German law, cannot have any proprietary
effects. Accessio excludes the possibility to claim restitution if the movable
property cannot be disconnected without damaging the immovable property into which it has been incorporated.
607
608
609
E. DIRIX, o.c., R.W. 1997-98, p. 483, n° 7; J. RONSE, “Het risico bij verkoop op
afbetaling met beding van eigendomsvoorbehoud”, R W. 1953-54, 1897 et seq.
Possession is used in a non-technical sense, e.g. in the meaning of detention.
E. DIRIX, o.c., R.W. 1997-98, p. 491, n° 30.
Belgium
340
If the property under title retention is seized by creditors of the purchaser, the seller will be entitled to oppose the seizure. In the same way,
the purchaser will be entitled to oppose the seizure of the assets in case of
insolvency of the seller.610 That is also the case if the seizing creditor has
a legal lien.
As we have seen, the purchaser has a right with proprietary effects against
the seller. If he continues paying the sales price, he will be able to claim
restitution of the property from the insolvency estate (cf. supra, Part II, 13).
23.4.
Effects of re-sale by the purchaser
What is the position of the seller (A) if the purchaser (B) becomes insolvent after he has already re-sold the property to C? If C is in bad faith,
A will be entitled to vindicate the property from the hands of C (right
to follow). C is protected if he is in good faith (cf. supra: Article 2279
C.C.).
Can A claim priority over the proceeds of the sales agreement? Some
authors argue that real subrogation cannot be invoked to support the position of the seller under title retention.611 They find support in the parliamentary proceedings of the new Bankruptcy Act, in which the Government stated that “title retention will remain without effect in relation to
the bankrupt debtor if the latter has already sold the assets subject to title
retention and the third-party purchaser has already taken possession of
these assets” (free translation).612 However, it was correctly noticed by others that this statement merely aimed to protect the third-party purchaser in
good faith and to exclude a restitution of the assets from his hands, but did
not concern the question whether the proprietary interest could be upheld
on the substitute.613
This solution is the only one that is coherent within the broader system
of real rights, because a property right for security purposes, as it is vested
by title retention, is in the middle between a full property right and a security right. A security right is generally protected by real subrogation: if the
debtor sells the object of the real security right, the secured creditor can also
610
611
612
613
E. DIRIX, o.c., R.W. 1997-98, p. 494, n° 44.
M. GREGOIRE, “Questions liées à l’invocation d’une clause de réserve de propriété”
in Mélanges offerts à Pierre Van Ommeslaghe, Brussels, Bruylant, 2000, p. 492, n° 42;
I. VEROUGSTRAETE, Manuel de la faillite et du concordat, Diegem, Kluwer Rechtswetenschappen, 1998, n° 845.
Amendment n° 5 by Government, Parl. St. Kamer 1995-96, n° 330 / 2, 8. A member
of parliament even declared that real subrogation should remain unapplicable.
E. DIRIX, “Eigendomsvoorbehoud”, R.W. 1997-98, p. 491, n° 34.
341
claim priority to the proceeds of the sale.614 Likewise, he can claim priority
to the insurance proceeds if the object of the real security right is materially lost in circumstances covered by the insurance agreement contracted
by the debtor.615
The same is true for the holder of a full property right: he can claim a
proprietary interest also in the proceeds of the sale if the debtor has opened
insolvency proceedings on the base of Article 103, § 2 Bankruptcy Act,
which is similar to Article 122 French Bankruptcy Act. It would be illogical
to exclude the seller under title retention, which is in the middle between
the two former categories. In conclusion, there are very strong arguments
in Belgian law for protecting the position of the seller under title retention,
and also by applying the mechanism of real subrogation.616
Real subrogation operates by way of law. Hence, parties do not need
(according to this opinion) to stipulate this expressly in the sales agreement. Such stipulation would not contribute to the position of the creditor.
In order to ensure that the title retention covers both the proceeds of a
resale and the claims for the contract price against the transferee’s buyers,
a fiduciary transfer for security purposes would be necessary. According to
the current state of Belgian law, this would be ineffective.617 Belgian law
traditionally does not recognize the proprietary effects of a fiduciary transfer
for security purposes.618 Even if some recent developments have diminished
the strength of this starting point, it still remains de lege lata part of Belgian
security law.
614
615
616
617
618
H. DE PAGE, VII, n° 26; E. DIRIX and R. DE CORTE, o.c., n° 217.
This is expressly provided by article 10 Belgian Mortgage Act: “Lorsqu’un immeuble,
des récoltes ou des effets mobiliers auront été assurés soit contre l’incendie, soit contre tout
autre fléau, la somme qui, en cas de sinistre, se trouvera due par l’assureur, devra, si elle
n’est pas appliquée par lui à la réparation de l’objet assuré, être affectée au payement des
créances privilégiées ou hypothécaires, selon le rang de chacune d’elles. Il en sera de même
de toute indemnité qui serait due par des tiers à raison de la perte, déterioration ou perte de
la valeur de l’objet grevé de privilège ou d’hypothèque”.
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Act. dr.
Ann. dr. Liège
A.P.R.
A.J.T.
A.J.T.-Dossier
Arr. Cass.
Art.
Att.-Gen.
Actualités du droit
Annales de droit de Liège
Algemene Praktische Rechtsverzameling
Algemeen Juridisch Tijdschrift
Algemeen Juridisch Tijdschrift. Dossier
Arresten van het Hof van Cassatie
Article
Attorney-General
Belg. Jud.
Bull.
Bull. Bel.
Bull.civ.
Belgique Judiciaire
Bulletin des arrets de la Cour de cassation
Bulletin der belastingen
Bulletin des arrêts de la Cour de cassation (France)
C.C.
Civ.
CMI
Concl.
Com.
Comp.
compl.
Civil code
Civil Court of first instance
Comité Maritime International
Conclusion
Tribunal de commerce (Rechtbank van Koophandel)
compare
complément
D.
DAOR
Dalloz Hebdomadaire
Droit des affaires / ondernemingsrecht
ed.
éd.
eds.
e.g.
err.
esp.
et seq.
editor
édition
editors
ex generis
erratum
especially
et sequitur
Faill.W.
fn.
Faillissementswet (= Insolvency Act)
footnote
i.e.
J.T.
id est
Journal des Tribunaux
351
J.C.Br.
J.C.P.
J.L.M.B.
Jurisprudence commerciale de Bruxelles
Semaine Juridique
Revue de jurisprudence de Liège, Mons et Bruxelles
Limb. Rechtsl.
Limburgs Rechtsleven
n°
Not. Fisc. M.
number
Notariaat. Notarieel en fiscaal maadblad
o.c.
opus citatum
p.
Pand. pér.
Pas.
page
Pandectes périodiques
Pasicrisie belge
Rec. gén. enr. not.
R.C.J.B.
R.D.
R.D.I.D.C.
R.H.A.
Rep. not.
Rev. dr. pén.
Rev. Liège
Rev. not. b.
Rev. prat. soc.
Rev. trim. dr. civ.
Rev. trim. dr. com.
Rev. trim. dr. comp.
Rev. trim. dr. fam.
Rev. int. dr. comp.
R.D.A.I.
R.P.D.B.
R.W.
Recueil général de l’enrigistrement et du notariat
Revue critique de jurisprudence belge
Royal Decision (Koninklijk Besluit)
Revue de droit international et de droit comparé
Rechtspraak van de Haven van Antwerpen
Répertoire notarial
Revue de droit pénal et de criminologie
Jurisprudence de Liège
Revue du notariat belge
Revue pratique des sociétés civiles et commerciales
Revue trimestrielle de droit civil
Revue trimestrielle de droit commercial
Revue trimestrielle de droit comparé
Revue trimestrielle de droit familiale
Revue international de droit comparé
Revue de droit des affaires internationales
Répertoire pratique de droit belge
Rechtskundig Weekblad
T. Aann.
T.B.B.R.
T.G.R.
T.P.R.
T.R.V.
T.Vred.
Tijdschrift voor aannemingsrecht
Tijdschrift voor Belgisch Burgerlijk recht
Tijdschrift voor Gentse rechtspraak
Tijdschrift voor Privaatrecht
Tijdschrift voor Rechtspersoon en Vennootschap
Tijdschrift van de Vrede-en Politierechters
v°
V&F
verbo
Vennootschapsrecht en Fiscaliteit
in Bulgaria
Dimitar Stoimenov
Table of Contents
Introduction: historical background and sources
361
Part I:
1. Notion of ownership and property rights
1.1.General
1.1.1. Characteristics of rights in rem
in contrast to rights in personam 1.1.2.The numerus clausus of property rights
1.1.3. Other principles of property rights
1.2. Notion of ownership
1.2.1. Definition and scope of ownership
1.2.2. Restrictions on ownership
1.2.3. Components of the right of ownership
(a) Usus (b) Fructus (c) Abusus (d) Duties of the owner
regarding specific movables 1.3. Other property rights
1.3.1. The pledge
1.3.2. The usufruct
1.4. Protection of property rights
1.4.1. Protection of ownership
(a) Rei vindicatio (b) Actio negatoria 1.4.2. Protection of other property rights
1.4.3. Other remedies of protection
(a) Claim for damages (tort law)
(b) Claim for unjustified enrichment
1.5. Transferability of the ownership of movables
1.5.1.General
1.5.2. Transferability of other property rights in movables
365
365
366
367
367
367
368
369
369
371
372
373
373
373
375
377
377
378
379
380
381
381
381
383
383
384
Bulgaria
356
1.5.3. Restrictions on transferability
based on agreements of non-alienation
1.5.4. The main movable and its accessories
2. Possession
2.1.1. Definition
2.1.2. The objective element of possession
(corpus possidendi)
2.1.3. The subjective element of possession
(animus possidendi)
2.1.4. Other characteristics of possession
(a) Permanence
(b) Uninterrupted possession
(c) Unequivocal possession
(d) Passive possession
(e) Manifest possession
2.1.5. Detention
2.1.6. Intensity of the actual control over the movable
2.1.7. Different forms of possession
(a) Possession in good faith
(i) Legal grounds as a prerequisite of possession
in good faith
(ii) The prerequisite of good faith
(b) Possession in bad faith
2.1.8. Possession of rights
2.2.1. General functions of possession
2.2.2. Functions of the possession in good faith
2.3.1. Acquisition of possession through unilateral
acts of the possessor
2.3.2. Acquisition of possession with
the consent of the former possessor
2.3.3. Acquisition of possession by a third party
2.3.4. Possession of an inheritor
2.3.5. Constitutum possessorium
2.3.6. Traditio brevi manu
2.4.1. General
2.4.2. Self-help
384
385
385
385
386
386
388
388
388
389
389
389
389
390
391
391
392
393
394
394
394
395
395
396
396
396
397
398
398
398
399
399
401
Table of Contents
357
3. Obligatory rights with similarities to the protection
of absolute rights
402
4. Field of application and definitions
4.2. Definitions
403
403
Part II:
5. Consensual system of transfer of ownership
5.1. Basics
5.1.1. General view of modes of acquiring ownership
5.1.2. Consensual transfer system
5.1.3. The principle of art. 24, p. 1 OblCA
5.2. Proprietary-obligatory effect of the contract
5.2.1. Transfer of specific property
5.2.2. Transfer of property that must be specified
alternatively
5.2.3. The transfer of ownership of generic movables
5.2.4. Transfer of future movables
5.2.5. Transfer of ownership of movables not
yet owned by the transferor
5.3. Contractual autonomy and transfer of title
5.4. Effect of the transfer of ownership
5.5. Requirement of a valid obligation to transfer ownership
5.5.1. Contracts that transfer ownership
5.5.2. Unilateral acts
5.5.3. Acquisition of ownership
by a judicial act (court order)
5.5.4. Validity of the obligation and its effects
(a) Void contracts
(b) Voidable transactions
(c) Termination of a contract
(d) Retroactive effect of the resolutive condition
5.6. Registration
5.6.1. Registration of vessels
5.6.2. Registration of aircrafts
5.6.3. Registration of motor-vehicles
405
405
406
407
407
407
408
409
411
411
412
412
414
414
414
415
415
416
416
417
418
418
418
419
419
358
Bulgaria
6. “Selling in a chain”
419
7. Transfer of acquisition by means of indirect representation
420
8.1. General issues
8.1.1. Termination of contracts by the
insolvency administrator
8.1.2. Legal remedies of the creditors in order to avoid
contracts between the debtor and a third party
8.2. Insolvency of the transferor
8.2.1. Disposition of a movable before the opening of
the insolvency proceedings against the transferor
8.2.2. Disposition of a movable after
the occurrence of the insolvency
8.3. Insolvency of the transferee
422
422
423
425
425
426
426
Part III:
Modes of original acquisition
9. Acquisition by accession, commixture or processing
9.1. Accession of movables
9.1.1. Accession into the ground of an immovable
9.1.2. Accession into the main movable
9.2. Commixture
9.3. Processing
9.4. Co-ownership of the commixed or the processed movable
10.1.1. No acquisition in good faith of
lost or stolen movables
10.1.2. No acquisition in good faith of movables,
the transfer of which requires a specific form by
virtue of law
10.1.3. Applicability of the rule of art. 78
to other specific movables
10.1.4. Acquisition in good faith of a co-ownership share
10.2. The element of non-gratuity
10.3. The requirement of possession
10.4. The requirement of physical control
428
428
429
429
430
430
431
432
433
433
434
434
435
435
Table of Contents
10.5.
10.6.
10.7.
10.8.
10.4.1. The exception of “constitutum possessorium”
10.4.2. Physical control by a third party
10.4.3. Delivery of generic goods, object of the
good faith acquisition
Specific circumstances with respect to the transfer
Good faith acquisition in case of a voidable contract
Good faith
10.7.1. Object of good faith
10.7.2. Time-requirement of good faith
10.7.3. Presumption of good faith
Property rights of a third person
encumbering the movable acquired in good faith
11. Prescription
11.2. Requirements of acquisitive prescription
11.2.1. Restrictions on acquisitive prescription
11.2.2. Requirement of possession
11.2.3. Importance of the bad or good faith of the possessor
11.2.4. Addition of the possession of the predecessor
(a) Addition of the possession of an heir
(b) Adding the possession of a predecessor
who alienated the property
(c) Common requirements for adding the
possession of the predecessor
(d) Special requirements for the
adding of the possession of a universal
or a singular predecessor
(e) The question of “fictitious” succession
11.3. Period of prescription
11.3.1. Beginning of the prescription period
11.3.2. Suspension of the prescription period
11.3.3. Interruption of the prescription period
11.4.4. Legal remedies of the former owner
against the acquirer
11.4.5. Real rights and charges on the movable
12.1. Finding
12.2. Occupation
12.3. Separation from other property
359
435
436
436
437
437
437
437
438
438
438
439
440
440
440
441
441
441
442
442
443
443
444
444
444
446
446
447
447
448
448
360
Bulgaria
Part IV:
Additional issues
13. Reservation of title
449
14. Abandonment
449
15. Co-ownership
15.1. General
15.2. Definition of co-ownership
15.3. Sources of co-ownership
15.4. Transfer of a share of co-ownership
15.5. Termination co-ownership
15.6. Separation of co-ownership
15.6.1. Contractual termination of co-ownership
15.6.2. Judicial termination of co-ownership
449
450
450
450
451
451
451
452
16. Restitution of the movable to the owner
16.1. Restitution of the movable in case of a void,
avoided or retrospectively terminated contract
16.2. Restitution in case of the end of a contractual
right to use the movable
16.3. Restitution of stolen property
16.4. Entitlement to the fruits resulting from the movable
16.4.1. Entitlement of the possessor in good faith
16.4.2. The situation of the possessor in bad faith
16.5. Loss and deterioration of the movable
16.6. Reimbursement for improvements
and expenses incurred during the possession
16.6.1. Reimbursement for necessary expenses and
improvements made by the possessor in good faith
(a) The necessary expenses
(b) Reimbursement for improvements made by
the possessor in good faith
16.6.2. The situation of the possessor in bad faith
16.7. The right of the possessor to retain the movable
452
453
453
453
454
455
455
455
456
456
457
457
458
Table of Literature
461
465
Introduction:
historical background and sources
The notion of “property law” within Bulgarian civil law constitutes an autonomous part of the Bulgarian legal system dealing in particular with the
right of ownership, real rights, the possession of movables and immovables
and registration.
Focusing on property law questions (excluding those within the spectrum of intellectual and industrial property rights or relative rights such
as assignment of claims) this report* will deal only with questions of the
transfer of ownership of tangible movable property.1
In contrast to most legal orders in Continental Europe, the Bulgarian legal system does not have a codified civil law. Several proposals for a
codification of civil law have been developed over the last 50 years. None
of them became a reality. The failure of these past projects was the result
either of the complicated statutory regulations for the state-owned business entities of the socialist economy in the times of the People’s Republic
of Bulgaria (1946-1989)2 or of the later problem of integrating the acquis
communautaire into the field of private law.3
*
1
2
3
I would like to sincerely thank my colleagues and friends Philip Mielnicki, Pádraic
McCannon and Susan-Gale Wintermuth for their comments as to style. I have also
been fortunate enough to discuss some of the controversial property law topics with
Venzislav Tomov; to him I extend many thanks.
Under Bulgarian property law, there is a distinction best translated as ‘movable’
(“движима”) versus ‘immovable’ property (“недвижима собственост”): herein the
terms ‘tangible’ and ‘asset’ are also used for the conept of ‘movable’ property. Also,
under Bulgarian law, utilities, such as electricity, are assumed to be movables (see
art. 110, p. 2 The Ownership Act, Official Journal (OJ) nr. 92 from 16.11.1951, latest amendment OJ 113 from 28.12.2007). This assumption serves as an instrument
for the criminalisation of the theft of electricity to fill the lacuna in the criminal law.
In light of comparative legal arguments, an amendment to the Criminal Code seems
to be a better course of action.
For further details, see Pavlova, M., Grajdansko pravo, Obshta chast, Vol. 1, Sofia
1995, p. 39.
The Project of 1999 is reviewed in detail in Popov, P.; Takov, Chr., Otnosno proekta za grajdanski kodeks, redakziya ot m. septemvri 1999, Turgovsko pravo 1 / 2000,
p. 3-8.
362
Bulgaria
The main source of property law is the new Constitution of the Republic of Bulgaria, which entered into force on 13 of July 1991.4 The principal
property law legislation is the Ownership Act (OA),5 which builds a system founded on two parts: a general part, consisting of general rules about
things, and a specific part, consisting of chapters on the right of property,
real rights over another’s property, acquiring, losing and defending property
rights, possession and registration.
The OA was created in the early fifties of the 20th century. It replaced
the Assets, Property and Real Rights Act (APrRlRA6), which was a reflection of Romanic property law doctrine. It was essentially based on the
system of the second Book of the Code Napoleon and the old Italian Codice
Civile. The OA marked an advance on its predecessor in introducing a new
systematic approach.
Besides the OA there are many other statutes that contain rules relevant for the transfer of tangible property. Only the most important of them
are cited here. The legal regime for different kinds of public property can be
found in the State Property Act (SPrA7) and the Municipal Property Act
(MPrA8). Issues regarding the transfer of tangible property owned jointly by
both spouses by virtue of marriage are regulated by the Family Code (FC9).
There is a special regulation for the transfer or establishment of property
rights in movables, such as vehicles or vessels: cars in the Road Traffic Act
(RTA10), ships in the Merchant Shipping Code (MSC11), and aircraft in
the Civil Aviation Act (CAA12). Other statutes also provide restrictions on
the disposition of movable property. An example of this would be tangible
property that qualifies as cultural property. (Other statutory instruments
4
5
6
7
8
9
10
11
12
Constitution of the Republic of Bulgaria, OJ nr. 56 from 13.7.1991, latest amendment OJ nr. 12 from 6.2.2007.
See fn. 1.
Assets, Property and Real Rights Act, OJ nr. 29 from 7.2.1904, repealed by § 1, nr. 1
OA.
State Property Act, OJ nr. 44 from 21.5.1996, latest amendment OJ 113 from
28.12.2007.
Municipal Property Act, OJ nr. 44 from 21.5.1996, latest amendment OJ nr. 92 from
13.11.2007.
Family Code, OJ nr. 41 from 28.5.1985, latest amendment OJ nr. 59 from
20.7.2007.
Road Traffic Act, OJ nr. 20 from 5.3.1999, latest amendment OJ nr. 36 from
4.4.2008.
The Merchant Shipping Code, OJ nr. 55 from 14.7.1970, latest amendment OJ
nr. 36 from 4.4.2008.
The Civil Aviation Act, OJ nr. 94 from 1.12.1972, latest amendment OJ nr. 36 from
4.4.2008.
363
that regulate specific property law topics13 will be mentioned at the relevant
junctures in the text.)
In connection with the legal sources of the law of property another
specific branch of Bulgarian law should be mentioned, namely the interpretative decrees of the Bulgarian Supreme Court (in the period 19471996) and its successor the Supreme Court of Cassation (1996 to date).14
Art. 130 (2) Judicial System Act (JSA15) provides that the interpretative
acts are binding for all courts, and organs of the executive arm of government. Although the interpretative acts are not legal sources, they are to
be treated as being indirectly binding on the parties in civil litigation and
administrative proceedings.16
A distinction must be drawn between two different types of interpretative acts. The first one is the interpretative decrees of the plenum of
the Supreme Court of Cassation. Their objective is to ensure the uniform
interpretation of law, thereby avoiding contradictory judgments.17 The
second type of interpretative decree attempts to avoid contradictory interpretations of law between the Supreme Court of Cassation and Supreme
Administration Court (Art. 124 JSA).
An initiative for the issuing of an interpretative decree by one of the
different plenums of the Supreme Court of Cassation or the joint plenum of
the Superior Courts can be made by the President of the Supreme Court of
Cassation, the President of the Supreme Administrative Court, the Chief
Prosecutor, the Minister of Justice, the Ombudsman and the President of
the Bulgarian Bar Association.18 The judicial interpretative decrees must
be published in the bulletins of both Supreme Courts.
13
14
15
16
17
18
P. ex. Statutory instrument to the SPrA, OJ nr. 78 from 26.9.2006, latest amendment
OJ nr. 51 from 26.06.2007.
All decisions of the Supreme Court (later the Supreme Court of Cassation) will be
cited with number, year and number of the civil chamber or indication of the judging
court-body.
Judicial System Act, OJ nr. 64 from 7.8.2007.
Further details on this topic by Pavlova (fn. 2), p. 79.
At this juncture, it should be underlined that not only the judgments of the first and
second instance courts may be conflicting here, but also judgments of chambers of
the Supreme Court of Cassation.
See art. 125 JSA.
Part I:
1.
Notion of ownership and property rights
1.1.
General
1.1.1. Characteristics of rights in rem in contrast
to rights in personam
Bulgarian property law follows the doctrinal division between rights in rem,
as absolute rights, and rights in personam arising from an obligation, which
are usually subdivided into two categories: claims and the right to change
a legal relationship.19
The general distinction between rights in rem and rights in personam
reflects the different economic functions of relative and absolute rights,
as most commentators acknowledge. In contrast to claims arising from
an obligation, which are orientated around the circulation and transfer
of valuable assets, the function of absolute rights should be looked at in a
static context: they are directed at the protection and use of those assets.20
This static function of rights in rem requires that there is no prescription
of some absolute rights.
In contrast to relative rights arising from an obligation, rights in rem are
absolute rights, which have effects against third parties. This denotes that
the person entitled to an in rem right encumbering property can exercise it
against a successor in title to the property; in other words, his right follows
the encumbered property (droit de suite).
The opinion is widespread21 that claims arising from an obligation (other than an obligation of nonfeasance) are in fact obligations by which the
creditor can demand a positive act on the part of the debtor. This is not a
characteristic of rights in rem. In principle rights in rem presuppose passive
conduct on the part of third parties. This main characteristic of absolute
rights is referred to, in the context of their important role in the debate, as
a part of the numerus clausus of property rights.
19
20
21
This doctrinal distinction seems to be influenced by the German differentiation between “Ansprüche” and “Gestaltungsrechte”, see Venedikov, P., Novo veshtno pravo,
Sofia 1995, p. 30.
Comp. Kojuharov, Al., Obligazionno pravo, Obshta chast, B. I, Sofia 1996, p. 9.
See Kalaydjiev, A., Obligazionno pravo, Obshta chast, 1. ed., Sofia 2001, p. 37.
Bulgaria
366
1.1.2. The numerus clausus of property rights
The Bulgarian system of property law operates with a closed catalogue of
property rights. The numerus clausus principle restricts the possibility for
the parties to establish other property rights than those whose content
forms part of the property rights fixed by statute.
The fact that there is a catalogue of property rights does not answer the
question which property rights are in fact a part of the numerus clausus.
One of the issues most discussed by legal scholars in older doctrine on property rights was the question whether or not the pledge and the mortgage
are to be regarded as property rights. Under the present legal regime22 the
mortgage should no longer be considered a property right. The old claim
of devastation or waste – grounded in the old Roman hypothecaria in rem
actio – entitles the mortgagee to demand from every third party23 not to
damage the substance of the immovable property.
It seems that the modern Bulgarian doctrine on property law does not
recognize the mortgage as a property right because of the secondary importance of the devastation / waste claim as a part of the mortgage.24 Given the
absence of a statutory provision resolving the point (in contrast to the old
APrRlRA, which affirmed their property status), it could be asserted that
the mortgage is not a substantive property right, but rather a relative right,
which could be exercised in favour of the creditor to change an existing
legal relationship.25
Yet more complicated is the question whether the pledge right is a part of
the numerus clausus catalogue of property rights. The pledge consists of two
different components. The first is the relative right of the creditor to satisfy his
claim out of the price obtained by an execution sale. But that is not the whole
substance of the creditor’s right under a pledge. Subject to the exception of
22
23
24
25
Art. 23 of the APrRlRA, which provided that the mortgage is a property right, was
overruled by the OA.
Even this is not considered as an entirely clear solution in the literature; against
the opinion that the devastation claim could be made against third persons but not
against the owner, see Markov, M., Ipotekata, Sofia 2008, p. 55.
The topic is certainly highly controversial. For different opinions on this, see by
Boyanov, G., Veshtno pravo, Sofia 2004, p. 19; by Markov (fn. 23), p. 69 et seq; by
Stavrou, St. Vuprosi na bulgarskoto veshtno pravo, Sofia 2008, p. 415 et seq.; for
the comparative details and profound analysis, see Venedikov, P., Ipoteki, zalog,
privilegii, 3rd ed., Sofia 1994.
Due to the restricted importance of this theoretical discussion about the legal nature
of the mortgage, it shall not be addressed in detail at this point.
This thesis by Venedikov seems not to prevail entirely at present, see Venedikov
(fn. 19), p. 33; against this point of view, Stavrou (fn. 24), p. 416.
367
the so-called “special pledge”26 and some specific forms of pledge for movables
such as ships and aircraft, the creditor’s rights under the pledge incorporate
another component that has a typical characteristic of property rights. This
is the right of the pledge creditor to detain the property. In view of this, the
creditor’s right under the pledge is regarded as a mixed substantive right having elements of both a relative right and a property right.27
1.1.3. Other principles of property rights
Apart from the principle of numerus clausus and the inviolability of property
rights, Bulgarian property law operates on the principle of registration of
acts that establish, change or preclude the right of ownership or other real
rights in an immovable asset. The act of registration creates the possibility
for the person entitled to the property right to oppose the registered right
against third persons that claim to be entitled to the same right, but which
has not been registered.
In the case of movable assets, the principle of publicity permits the possibility of the holder of the real right, e.g. the ship-mortgagee, to oppose
the registered ship-mortgage against every third person also claiming the
existence of a real right encumbering the ship (see 5.5.1.).
Another principle of Bulgarian property law represents the possibility
for the person entitled to the property right to possess an asset that has been
already specified. The right of ownership and real property rights can only
exist if the asset has been specified. This issue is elaborated in Bulgarian
property law in the doctrine on the transfer of the right of ownership of
generic and specific movables.
1.2.
Notion of ownership
1.2.1. Definition and scope of ownership
The right of ownership and the different types of ownership in Bulgarian
law are set out in Art. 17 of the Constitution of the Bulgarian Republic.28
26
27
28
Special Pledge Act (SPlA), OJ nr. 100 from 22.11.1996, latest amendment OJ
nr. 108 from 19.12.2007.
Comp. Venedikov (fn. 19), p. 35.
Art. 17 of the Constitution:
(1) The right to property and inheritance shall be guaranteed and protected by law.
(2) Property shall be private and public.
(3) Private property shall be inviolable.
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368
Art. 17 (3) of the Constitution enacts the principle of the inviolability of
private property. However, the notion of private ownership is not defined
by the Constitution. Thus, the notion of ownership used in the Constitution is closely tied to the concept of ownership elaborated by civil law.29
Part II of the OA does not provide a legal definition for the right of
ownership, but it is widespread in the literature that the right of ownership
includes the right of the owner to possess, use and dispose of a specific asset, including the authority to demand from every third person that he not
interfere with the asset.30
1.2.2. Restrictions on ownership
The right of ownership can be legally restricted31 in different manners.
Regarding tangible property it should be mentioned that those restrictions
are mainly orientated around the right of the owner of the movable to
dispose of it with complete freedom. A common restriction is exhibited by
the possibility of one spouse to dispose of tangible property owned jointly
by virtue of marriage (art. 22, p. 2 FC). The characteristic of the transfer
29
30
31
(4) The regime applying to the different units of state and municipal property shall be
established by law.
(5) Forcible expropriation of property in the name of state or municipal needs shall be effected only by virtue of a law, provided that these needs cannot be otherwise met, and after
fair compensation has been ensured in advance.
Sarafov, P., Ponyatieto sobstvenost spored Konstituziyata, Suvremenno pravo,
VI / 2001, p. 7.
See Boyanov (nr. 24), p. 47.
The majority of the literature considers the restrictions on those assets that can not
be owned by any legal or natural persons, due to a lack of capacity, not as a substantive restriction on a property right, see Sarafov, P., Ogranicheniya pri uprajnyavaneto na pravoto na sobstvenost, Suvremenno pravo 1 / 1999, p. 42 et seq.
The problem of restrictions is related to the issues regarding the situation in which
tangible things are used for activities that fall under a state monopoly (Art. 28(2)
OA). This provision points to the activities listed as state monopolies in Art. 18
(4) of the Constitution. Without describing this in detail here, mention should be
made that the legislator restricted the ownership of movable and immovable assets
which are used in the activities subject to state monopoly. It could be the case that a
person who no longer has a licence to exercise such an activity may be compelled to
dispose of the goods in favour of another person with a license; a good overview of
this scarcely discussed problem is given by Ruschev, I., Deznosti, za koitot sus zakon
e ustanoven monopol na durjavata, i davane na razresheniya za izvurshvaneto im,
Pravna misul, III / 1998, p. 45 et seq.
369
of such property will be considered in the parts of the text dealing with the
transfer of those assets.
1.2.3. Components of the right of ownership
Ownership is the most comprehensive property right. Although there is no
legal definition of the right of ownership, legal doctrine32 takes the right of
ownership to be an absolute property right that allows the owner, or those
taking the property under him, to demand third parties refrain from interfering with the object of the property right. That is the reason why some of
the authors33 adopt the view that the right of the owner to dispose of the
property could be derived from (i) the legal position of the owner as the
one who can demand from everybody else that he refrain from interfering
and (ii) the proposition that, in contrast, nobody else can demand from the
owner that he refrain from using the property as he, the owner, wishes.
It is almost impossible to describe the complete spectrum of the right
of ownership. The main characteristic of ownership is the possibility to
exercise full control over the property. This complete control could be
restricted by a real right, such as superficies, usufruct and pledge. Since the
law of movables is the focus here, it is only necessary to mention pledge.
Superficies is confined to immovable property. The right of usufruct could be
theoretically established over tangibles, but this construction seems to have
limited application.34 However, usufruct will be briefly analysed in 1.3.
(a)
Usus
Bulgarian property law received the Roman differentiation between various ingredients of the right of ownership, in particular the old distinction
between the three ingredients of ownership usus, fructus and abusus.
The first of these, ownership usus, is the right to possess the object of
ownership. In contrast to possession (which is merely a factual state of
affairs under Bulgarian law), the right of ownership usus is an inseparable
component of the substantive property right of ownership.35 It is the most
important component of the right of ownership and the prerequisite for
exercising the two other vires of ownership. For that reason it is impossible
32
33
34
35
Venedikov (fn. 19), p. 75; for a more common definition Boyanov (fn. 24), p. 15.
See fn. 31.
See Venedikov (fn. 19), p. 67. For further details on the problem of real rights, see
above 1.3.
Boyanov (fn. 24), pp. 95 et sqq.
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to “remove” ownership usus from the person entitled to it, or to “restore”
ownership usus to the (dispossessed) owner. Through vindication from the
non-entitled party, the owner merely claims the re-establishment of the
situation before his right of possession was infringed.36
The right of ownership could be jeopardized if the third party holding or
possessing the movable was subject to an execution procedure or insolvency
proceedings. In the first case the execution levied upon the non-owner’s
property is a non-derivative method for the buyer to acquire ownership
of the property sold. This is provided by Art. 482 (2) of the Civil Procedure Code (CPC37). The former owner merely has a claim for the value of
the movable sold if the price has not been distributed between the debtor
and his creditor in the execution proceedings (art. 482, p. 3, s. 1 CPC).
If the price has been distributed between them, the former owner has a
claim against the debtor and his creditor for the shares that they received
(art. 482, p. 3, s. 2). If the creditor of the holder or possessor of the movable
acquires the property and was not in good faith, the former owner has a tort
law claim against the creditor.38
If the holder or possessor of the movable is insolvent, the protection of
the right of ownership consists in not including in the insolvency estate the
movables held by the insolvent debtor under a contract, such as a loan for
use39 or a leasing contract.40 Hence, the claims regarding the protection of
property rights of third parties are not suspended or precluded by the opening of insolvency proceedings. This is provided for by the new paragraph
in art. 637, p. 5, nr. 1 of the Commercial Act (CA41).
Until the amendment of the CA in 2006,42 the question whether claims
aimed at the protection of property rights of third parties were precluded
36
37
38
39
40
41
See Petrov, Vl., Osnovi na pravoto, Dyal vtori-grajdansko pravo, Svishtov 1988,
p. 138, criticising the misuse of terminology.
Civil Procedure Code, OJ nr. 59 from 20.7.2007.
The old Civil Procedure Code provided for an obstacle to the transfer of ownership
if the creditor seeking to acquire the movable was in bad faith. This provision in
art. 372 (4) of the old CPC was unfortunately not adopted in the new CPC. In this
way it became the strongest basis of acquisition under Bulgarian law. For details on
the old statutory regime, see Stalev, J., Bulgarsko grajdansko prozesualno pravo,
7. ed. Sofia 2001, p. 748.
The term ‘loan’ refers to the loan of movable property to another who may use it; it
does not refer to a financial obligation.
Without going deeper into the problematics of protection of the ownership of movable assets owned by third persons before the realisation of the insolvency estate,
see Madanska, N., Proiyvodstvo po nesustoitelnost, 2nd ed., Sofia 2005, p. 71.
Commercial Act, OJ nr. 48 from 18.6.1991, latest amendment OJ nr. 104 from
11.12.2007.
371
caused the Supreme Court of Cassation to develop controversial case law.43
Under the present legal regime the movable asset owned by a third party
can be removed from the insolvency estate either by a claim for vindication
against the holder / possessor or by an action for a declaratory judgment.
Similar to the position of the owner under execution proceedings, the
person who owns the movable asset loses his right of ownership at the time
of the sale or disposal of the insolvency estate. Under art. 717k, p. 1 CA, the
buyer acquires ownership of the movable ex lege. If the price has not been
paid yet the former owner can receive the sale price (art. 717k, p. 1, s. 1).
However, if the creditors and the insolvent debtor have received the sale
price for the asset, the former owner has a claim for conversion against them
for the part they received (art. 717k, p. 1, s. 2 CA). If the movable property is
owned jointly by co-owners, the whole of the property (and not merely the
bankrupt’s undivided share) can be sold only if the co-owners have declared
their consent in written form before the sale proceedings (art. 717m, p. 2 CA).
Other problems in insolvency and execution proceedings arise where
movables are owned jointly by both spouses by virtue of marriage44 and
the spouse who is a sole trader, or a partner with unlimited liability, is the
subject of an insolvency proceeding. Under art. 614, p. 2 and 3 CA, the
assets, and rights related to those assets, are part of the insolvency estate.
The many specifics of this topic, such as possession and the right to dispose
of such assets, are elaborated upon in the following parts of this text.
42
(b)
Fructus
The second ingredient of the right of ownership is the right to the fruits
of the property. The right to fruits includes the opportunity for the owner
to use the movable in an appropriate way to extract its fruits. The fruits
of a movable are the assets (in the sense of gains or growth) that do not
42
43
44
OJ nr. 38 from 9.5.2006
In favour of the interruption of revindication proceedings: Court order of the Supreme Court of Cassation nr. 147 / 1997, 5th civ. ch., against: Court order of the
Supreme Court of Cassation nr. 141 / 1999, 4th civ. ch. All decisions of the Supreme
Court and the Supreme Court of Cassation are cited from the internet-database
www.ciela.net.
Family Code (FC), OJ nr. 41 from 28.5.1985, latest amendment OJ nr. 59 from
20.7.2007. The main principle applicable to property owned jointly by both spouses
by virtue of marriage (in German “Errungenschaftsgemeinschaft”) is that the property
acquired during the marriage by one of the spouses is subject to that legal regime
until the death of one of the spouses, divorce or important circumstances that require
a separation of the assets (art. 19-30 FC).
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372
influence, or merely have an insignificant influence on, the substance of
the tangible property.45
They can be classified46 in two categories: natural fruits and civil fruits.
The natural fruits can in turn be subdivided into fruits that do not influence
the substance of the property at all, such as the offspring of the livestock
and the fruits of the trees, and those that insignificantly influence the substance of the property.47 Nonetheless, there are some natural fruits which
do influence the substance of the property quite significantly, such as the
mining of a pit, but are still regarded as natural fruits.
In contrast to natural fruits, civil fruits of the property are not tangible
property but relative rights. These are, for instance, the price paid for leasing the property or the interest that should be paid.
(c)
Abusus
The third ingredient of the right of ownership consists in the possibility for
the owner to dispose of the movable. The right to dispose is functionally
related to the transmission of rights, the establishment of real rights over
the movable and the disposition of that property as a security.48
The disposition should be regarded as a juridical act that transfers,
modifies, burdens, or extinguishes the property right.49 It does not matter if
the disposition of the right of ownership is directed at the immediate loss
of ownership (as in the case of sale, barter, or abandonment of ownership)
or only a future possible loss (as in pledge), or even just the establishment
of a real right over the tangible property.
45
46
47
48
49
Vassilev, L., Grajdansko pravo na NRB, 3rd ed., Sofia 1956, p. 277.
See Venedikov (fn. 19), p. 25.
Generally the natural fruits of an immovable can not be deemed the object of property rights before their separation from the main property. There is an exception.
Bulgarian Civil procedure law (art. 476 CPC) introduced a fiction for the autonomous existence of the fruits as an object of a property disposition. With the sale
(the act of disposition) the buyer acquires ownership. Regarding the interest of the
buyer, the CPC provides that the sale of those fruits could be made at the earliest
of one week before the reasonably expected season of earning begins; for further
details, see Georgiev, Al., Plodovete na veshti i neobranite nasajdeniya kato obekt
na prinuditelno izpulnenie, Sobstvenost i pravo, 2 / 2004, p. 5-11.
For the alternative argument, see Boyanov (fn. 24), p. 101.
A very similar definition is to be found in the Interpretative Decree nr. 91 / 1974 of
the Supreme Court, General Assembly of the Civil Chambers.
(d)
373
Duties of the owner regarding specific movables
Bulgarian law imposes several duties on the owners of tangibles that are to
be considered cultural property under The Cultural Property and Museums
Act (CPrMA50). Their owners have to maintain them in reasonable condition, to inform the state and municipal authorities about changes in their
condition and to provide free access to the artefacts (art. 20 CPrMA).
Similar to the duties of the owner, municipal bodies or the state are
subject to the duty to exercise the right of ownership in favour of the public
interest (Art. 18, p. 6 of the Constitution) or in the interest of the municipal community (Art. 140 of the Constitution).
1.3.
Other property rights
Apart from the most comprehensive property right – the right of ownership as mentioned above (see 1.1.2.) – Bulgarian property law on movables
recognizes two distinct rights in rem that can encumber movable property.
These are (1) the pledge, which has a real character, and (2) the usufruct.
1.3.1. The pledge
The right of pledge is comprised of a property element and a right to change
a legal relationship. Only the real pledge is a property right. It can only
be established by a contractual relationship. Other forms of pledge rights,
such as the special pledge or the pledge established by virtue of law,51 do
not presuppose the tradition of the property being the object of the pledge
right. Hence, they will be disregarded.
The pledge right is established by the conclusion of a contract that is
real in character; the tangible property should be delivered to the pledge
creditor (art. 156, p. 1 from The Obligations and Contracts Act52). This
50
51
52
The Cultural Property and Museums Act, OJ nr. 29 from 11.4.1969, latest amendment OJ nr. 30 from 11.4.2006.
The pledge by virtue of law can be effected only to secure a commercial legal transaction (art. 310 et seq CC).
The Obligations and Contract Act (OblCA), OJ nr. 2 from 3.1.1950, latest amendment OJ nr. 92 from 13.11.2007. If the movable was the object of a former pledge,
the former pledge creditor must also give his consent to hold the property for the
new pledge creditor, see Kalaydjiev (fn. 21), p. 554. Where the pledge object is held
by a third person, the person who holds the property for the first creditor must accept
the duty to exercise de facto control of the property for both creditors. The consent
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Bulgaria
pledge right in rem consists of the possibility of the pledge creditor holding
the movable himself or through a third person. The creditor can hold the
tangible property as long as the debt of the pledge is not satisfied. This right
is effective against the pledge debtor, the owner of the pledged object, and
against any person entitled to the right of usufruct and so on.
Not only movable property owned by the debtor may be given in pledge.
Bulgarian property law allows for the acquisition in good faith of a pledge
right.53 If the movable has been stolen or lost, a pledge right can not be
acquired – even if the pledge creditor was in good faith (art. 78, p. 2 OA).
The pledge-creditor can not use the property unless the contrary has been
agreed by the parties (art. 157, p.2 COA). This could be either an obligatory
legal act: p. ex. lease of the movable object of the pledge,54 or an establishment
of a property right in the pledged property, such as the right of usufruct, which
entitles the pledge-creditor to acquire ownership of the fruits of the property.55
The pledge right, as an absolute right, is enforceable against third parties. If the property has been taken away, the pledge creditor has a claim
that appears similar to the revindication claim. It is the so-called actio quasi
Serviana (art. 157, p. 3 OblCA). This claim could be made not only against
third persons, but also against the owner of the movable.
In the latter case, if the person who owns the property is the debtor
of the contractual obligation, the creditor has to prove that the pledge
object has not been returned to the debtor.56 This assumption serves the
pledge debtor but not the third-party owner of the property. The practical
importance of the claim under art. 157, p. 3 OblCA seems to be limited,
due to the regime of acquisition in good faith (art. 78 OA) affording every
third person in good faith the possibility to acquire the ownership of the
object of the pledge.
Bulgarian law does not permit the re-acquisition of the pledge object
if the debtor does not perform the obligation that has been secured by the
pledge (art. 152 OblCA). Such contractual terms are void.57
53
54
55
56
of the first creditor is not required; for the complexity of legal relationships resulting
from those contracts, see Venedikov (fn. 24), p. 207.
On the applicability of art. 78 OA to the pledge, see Tadjer, V., Veshtno pravo na
NRB, Vladenie, B. IV, Sofia 1970, p. 102; Stavrou (fn. 24), p. 503; the contrary
opinion by Stefanov, St., Vuzmojno li e pridobivane na zalojno pravo vurhu dvijima
vesht po silata na chl. 78 ot Zakona za sobstvenostta?, Turgovsko pravo, 3 / 2003,
p. 18 et seq, who denies the acquisition in good faith of a pledge right arguing that
the pledge itself, contrary to the legal translation, which has been secured, could not
have a gratuitous character.
For a good example, see Decision nr. 1964 / 1957 of the Supreme Court, 4th civ. ch.
See Stavrou (fn. 24), p. 503.
Art. 159, s. 2 OA.
375
1.3.2.57 The usufruct
Despite having little or no practical importance, the usufruct – as a right
in rem that may be theoretically established in movables – should not be
ignored completely. The usufruct is the most comprehensive property right
that can encumber a movable owned by another person.58 It entitles the
person in whose favour the right was established to use the property and
to acquire the fruits of the property (art. 56, p. 1 OA), if doing so does not
affect the substance of the property. The usufruct lasts until the entitled
natural person dies or the legal person ceases to exist, if a concrete period
of time has not been stipulated (art. 59, p. 1, 2 OA).
The central problem regarding the right of usufruct relates to the problem of defining the appropriate way to use the property. In legal theory, the
prevailing opinion is that the person entitled to the usufruct can not change
the economic purpose of the property held.59 That is also the case if the
holder of the property has incurred significant expenses that have increased
the value of the property.
If the person entitled to the usufruct influences the substance of the
property, e.g. by investing in the property, the owner can protect himself by
terminating the usufruct contractual relationship (art. 61 OA). In addition,
the owner also has an actio negatoria according to art. 109 OA.60
Another specific feature of Bulgarian private law is the recognition of
an unjustified enrichment claim (art. 59 OblCA), with regard to improvements made on property owned by another who cannot be regarded as
possessor of the property but who, under property law, can be qualified as
a holder or even co-holder.61 If expenditure on property is made by the
57
58
59
60
61
Decision nr. 1964 / 1957 of the Supreme Court, 4th civ. ch.
The fact that the usufruct qualifies as the most comprehensive property right in other
property, constitutes a general principle of Bulgarian property law, where superficies
could be regarded merely as another form of ownership but not as a right in another’s
property; for further details, see Venedikov (fn. 18), p. 132.
Comp. Vassilev, L., Bulgarsko veshtno pravo, 2nd ed. Sofia 2001, p. 363. The main
examples in practice are changing the way in which the immovable property is used:
the converting of a dwelling into a pub or a hotel etc.
Vassilev (fn. 59), p. 363.
The following provisions of the OA apply to the claim for expenses incurred for the
upkeep or improvement of the item of property (in German “Verwendungsanspruch”)
of the possessor:
Article 72
A bona fide possessor may, for the improvements made by him, claim the sum of which the
value of the property has increased as a result of such improvements. Such increases shall
be determined as of the date of the judgment rendered by the court.
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Bulgaria
person entitled to the usufruct, that person can make a claim with regard
to the value of the improvements that have enriched the owner, which
follows from the basic elements of the general unjustified enrichment claim
(art. 59 OblCA).
The owner can require from the person entitled to the usufruct that
a declaration be given in relation to the condition of the property before
that person begins to exercise the right of the usufruct.62 If the holder of the
usufruct does not detail the condition of the property, the owner can refuse
to deliver the object of the usufruct, or even revindicate the property.63
However, there is the principle that the constituting of a usufruct does
not rely upon a declaration in relation to the condition of the property,
and thus the owner does not have a claim for the fruits of the property
based on the holder’s failure to give the relevant declaration. Nonetheless,
a declaration can be made by the municipal authority at the expense of the
holder of the usufruct. The parties may also jointly assign a private person
to carry out the declaration.
The right of usufruct is effective against all third parties. Even if the
movable property was delivered to a third party pursuant to a lease contract,
but before the establishment of the right of usufruct, the lease is nonetheless
not effective against the holder of the usufruct. Following the principle
“Kauf bricht nicht Miete”, the relative rights of third persons are only effective with regard to the immovable property (arg. from art. 237 OblCA).
62
63
A bona fide possessor may ask that he be reimbursed for the necessary expenditure made
for the maintenance of the property.
He may hold the property until reimbursed for the improvements and expenses.
Article 73
A mala fide possessor shall owe the owner the benefits he has derived or could have derived,
as well as compensation for the profits of which he has deprived the owner, deducting the
expenditure made for this purpose.
The mala fide possessor may ask that he be reimbursed for the necessary expenditure made
by him for the upkeep of the property.
Article 74
A mala fide possessor may ask, for the improvements made by him, only the lesser of the
sum total of all expenditures and the sum by which the value of the property has increased
as a result of such improvements.
Where the owner knew that improvements were being made on his / her property and has
not objected, the rights of the possessor shall be arranged in accordance with Article 72.
On the complexity of this issue, see Tzonchev, Kr., Podobreniyata, Sofia 2001, p. 36
et seq. These instances mainly concern the problems related to immovable property.
Hence, they will not be described in further detail.
See art. 57, p. 2 OA.
Venedikov (fn. 19), p. 133.
377
The holder of the usufruct has the duty to inform the owner about any
infringements on the property: dispossession or a revindication claim by a
third person (art. 58 OA).
Other questions connected to the termination of the right of usufruct
arise from a specific situation, one in which the usufruct was established
during a marriage in favour of only one of the spouses. The most widespread
opinion considers the spouse in favour of whom the right of usufruct has
been established as the only person entitled to the right.64
Hence, the right of usufruct ceases to exit after the death of the spouse
entitled to the right. If the right of usufruct has been established in favour
of both spouses, the surviving spouse will be in a position to exercise further
the usufruct.
The principles of non-transferability of the right of usufruct, and restraint against sharing, lead to the conclusion that, after the termination
of co-ownership (in most cases due to the divorce of the spouses), the rules
on termination of a co-ownership established during a marriage will not be
applicable to the right of usufruct.65
1.4.
Protection of property rights
1.4.1. Protection of ownership
The Law of Property Act provides in Chapter nine, “Protection of the right
of ownership”, two claims that serve to protect the right of ownership.
These are the property law claims of (1) revindication (art. 108 OA) and
(2) actio negatoria (art. 109 OA).
Chapter Nine
PROTECTION OF THE RIGHT OF OWNERSHIP
Article 108
The owner may request his / her property from any person who possesses or holds
it without grounds to do so.
Article 109
The owner may request the discontinuing of any act lacking grounds that obstructs the exercise of his right.
64
65
Comp. Venedikov, P., Vuprosi na suprujeskata imushtestvena obshtnost, Sofia 2000,
p. 8.
See Stavrou (fn. 24), p. 752-753.
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378
(a)
Rei vindicatio
Revindication is a claim that may be exercised by the owner of the movable property who is not in possession of the property. Hence, revindication
cannot be claimed against persons who possess the property on behalf of
the owner.66 The revindication claim can be made against possessors and
holders of the property who do not have a legal ground to possess or to hold
the property. If a claim has been made against a holder, the holder has the
possibility to require the possessor be joined in the civil proceedings.
Generic tangible property can not be the subject of a revindication
claim.67 The jurisprudence has established the principle that a person who
is in possession of, or holds, such property has the obligation to make restitution of the same generic property (i.e. the same quantity and quality),
based on principles of unjustified enrichment law. The legal remedy in
that case is a claim under art. 55, p. 1 OblCA and not art. 108 OA.68 In
the instance of property that is to be returned but cannot be found by the
respondent, the claimant can rely upon an unjustified enrichment claim
but not a revindication claim. In such a case the revindication claim has
to be rejected.69
Furthermore, the respondent in revindication proceedings has a defence
if he holds or possesses the property on a legal ground. A legal ground can
be based on a property right in another’s property (p. ex. pledge right). But
the respondent may also have other defences, which rely upon an obligation. It is necessary that the legal relationship concerning such an obligation implies an obligation for the owner to deliver the possession or the
tenancy to the other party. This is not the case if the owner is just a contractual party to a preliminary contract of sale. The principle of “promesse
de vente vaut vente” has not been adopted in Bulgarian property law.70
66
67
68
69
70
E.g. the lessor does not need to make a claim of revindication against the lessee,
because the possession of the lessor is not to be regarded as an interference. A claim
under art. 108 OA can be made if the lessee has converted himself into a possessor;
see Venedikov (fn. 19), p. 220.
Bobatinov, M.; Vlahov, Kr.,Veshtno pravo, Prakticheski problemi, 2nd ed., Sofia
2007, p. 340.
Decision nr. 98 / 1964 of the Supreme Court, General Assembly of the Civil Chambers.
See Bobatinov, Vlahov (fn. 67), p. 340. It may be noted that civil procedural law allows for the execution of the corresponding value of the property where the movable
cannot be found or has been destroyed (art. 521, p. 2 CPC). However, this is not
related to the substantive elements of the vindication of title claim.
For further details, see Venedikov (fn. 19), p. 228.
379
An interesting issue arises in the situation where the owner has obliged
himself by a preliminary contract of sale to deliver the possession of the
property before the conclusion of the final contract of sale, and the buyer
is obliged to pay the price at the conclusion of the preliminary contract.
In this case the buyer has a defence against the revindication claim of the
seller, unless the right of the buyer to claim the conclusion of the contract
has been precluded by prescription.71
Another rare case involves the situation where the claimant of a revindication claim has transferred tangible property owned by a third person
to the respondent. Could it be possible for such a person to vindicate the
property if he subsequently becomes the owner of the property (e.g. by
succeeding the owner of the tangible)? In this case, the respondent can
exercise the excercio rei venditae et traditae, which is in substance nothing
other than the recovery of the ownership from the transferee.72
A successful defence by the respondent will cause the revindication
claim to be rejected. However, not any type of defence leads to the rejection
of the claim. The return of the property can be denied if the respondent
has incurred expenses for the maintenance or improvement of the property
(see 15.4.).
(b)
Actio negatoria
The ‘negatory’ action (art. 109 OA) allows the owner to assume that the
enjoyment of the right of ownership shall not be interfered with by a third
person. The claim can not only be made against persons who lack any
kind of property right to the property, but also against co-owners and other
persons who also hold a property right in the property.73 The objective of
the ‘negatory’ claim is to restore the right of ownership to the state it was
in before the interference.
The claim can be made against a person who is not the possessor of the
property but who unlawfully interferes with or exercises an influence over
the property (in statu quo ante). It is not necessary that the influence still
persists at the time of making the claim. The ‘negatory’ claim should be
affirmed if there is a serious risk that the interference with, or the influence
71
72
73
See Decision nr. 1372 / 62 of the Supreme Court, 1st civ. ch. Preliminary contracts
are mainly used in legal transactions concerning the ownership of immovable property. However, there is no restriction on the parties to conclude a preliminary contract for the transfer of movables according to art. 19, p. 3 OblCA.
For a thorough analysis of this topic, see Venedikov (fn. 19), p. 229.
Bobatinov, Vlahov (fn. 67), p. 343. Most of the ‘negatory’ claims are, of course, concerned with interferences with immovable property.
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380
on, the object of the right of ownership will continue. Where the interference may continue, the respondent shall be ordered to refrain from future
interference.74
The ‘negatory’ claim can be joined with a tort law claim if damage has
occurred in conjunction with the interference. The prevailing scholarly
opinion indicates that a claim for damages is only possible if the damage inflicted has been caused through fault of another.75 There is no basis for suggesting that merely a claim based on one’s own wrongful conduct76 could be
the subject of a joint claim brought against co-owners or other persons who
also hold a right in the property, much less that a claim could be brought
based on the interference caused by an animal or by the property itself.77
The burden of proving that the claimant is the owner of the property
that has been interfered with rests on the owner even if the owner is in
possession of the property.
1.4.2. Protection of other property rights
Other property rights in movables, such as the right of usufruct, are protected by the possibility for the holder of the right to claim the property
from the owner, or from any third party, by virtue of exercising the right.78
For example, the holder of the usufruct right has a revindication claim, as
the owner of the fruits the property produced, against the person who possesses or holds the fruits.
74
75
76
77
78
The chosen method of Bulgarian civil procedural law is a fine of up to 400 Lewa
(appr. 200 Euro) for every further interference with the property by the defendant.
The claim is based on the general clause of art. 45, p. 1 OblCA: “Every person must
make good the damage which that person wrongfully caused to another person.” It
seems that there is no logic to restrict the joinder of a negatory claim against every
person that caused the damage (p. ex. art. 49 OblCA). This solution is based on the
idea that it is not required that the claimant prove that the interference has been
done culpably. This corresponds to the jurisprudence (see Decision of the Sofia City
Court in civ. m. 169 / 2002, Civ.ch., 4th b) that allows the joinder of a revindication
claim and a claim for damages grounded on the liability of the state for damages
caused by its organs (art. 1and 2 The State and Municipal Liability for Damages
Act, OJ nr. 60 from 5.8.1988, latest amendment OJ nr. 33 from 21.4.2006).
Such damages are to be rendered according to the provisions of liability without fault
(art. 50 OblCA).
This action is often called, under the influence of the Roman civilian tradition, actio
confessoria.
381
1.4.3. Other remedies of protection
In addition to the remedies of protection of ownership and other real rights
provided by property law, there are several remedies that derive from existing obligations. The protection of property interests related to insolvency
and execution law have been already mentioned above (see 1.2.3. a).
(a)
Claim for damages (tort law)
In Bulgarian civil law claims for damages are governed in the part relating to extra-contractual obligations. More concretely they are regulated in
Part II “Sources of the Obligations” and Chapter IV of the Obligations and
Contract Act.
As previously mentioned proprietary remedies are often accompanied
by claims for damages. The successful awarding of damages for an infringement of a property right depends on the ground of liability. However, the
Bulgarian law of tort provides for a presumption regarding the culpa of the
tortfeasor (art. 45, p. 2 OblCA). Intention is not presumed, only negligence
as a form of delictual culpability is implied by the presumption contained
in art. 45, p. 2 OblCA.79
(b)
Claim for unjustified enrichment
Bulgarian unjustified enrichment law recognizes two discrete categories of
restitutionary claims.80 The first category deals with rendering and obtaining without a legal ground (art. 55-58 OblCA). The second is often called
enrichment by a disadvantage of another (art. 59, p. 1 OblCA) and connotes a general unjustified enrichment claim. The general restitutionary
claim remains subsidiary to all other condictiones.81
Art. 57 OblCA
(1) If the restitution of particular property is owed, the recipient shall owe the
fruits from the moment the notice is given.
(2) Should the property subject to restitution perish after the notice was given
or should the recipient alienate or consume it following the discovery that it is
79
80
81
Details by Kalaydjiev (fn. 21), p. 373; Konov, Tr., Osnovanie na grajdanskata otgovornost, 2nd ed., Sofia 2002, p. 159 et seq.
Vassilev, L., Obligazionno pravo, Otdelni vidove obligazionni otnosheniya, 2nd ed.,
Sofia 1958, p. 569.
See art. 59, p. 2 OblCA.
382
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held without legal ground, the recipient must return its actual value or the price
he received for it, whichever is higher. However, if the property has perished or
has been alienated or consumed by the recipient prior to the notice, he must
return only what he has profited, excluding the fruits.
The revindication claim under art. 108 OA closely resembles the restitutionary claim under art. 57 OblCA. This merely derives from the fact that
the remedies share a common objective: namely providing that the property that is held or possessed by the defendant without legal ground can be
re-claimed. The prerequisites of the individual actions vary considerably.82
For example, the revindication claimant has to prove that he is owner of
the property that should be returned.
In contrast, the claim under art. 57, p. 1 OblCA does not require that the
claimant prove his title of ownership or adduce proof that the defendant is a
mere possessor or holder of the property. The sole requirement for this claim
is the fact that the “disenriched” person rendered the movable property or the
accepiens obtained the property. The remonstration of non-ownership by the
claimant, which is a requirement under every other revindication claim, is
not relevant under the restitutionary claim. It is not subject to the restrictive
application of the subsidiarity principle. Hence, this claim is not precluded if a
revindication claim and contractual legal remedies exist.83 The restitutionary
claimant can elect freely between all remedies available to him.
An interesting paradigm in this context is provided where the holder
sells the property to a third person. The defendant can not demand that the
claimant sue the third party, on the basis of a proprietary claim, instead of
taking action against him under the art. 57, p. 2 OblCA.
Notice of the claim of restitution given to the person that holds the
property without a legal ground transfers the risk that the claimant will
receive merely the profits that the holder obtained from the property, including the fruits (art. 57, p. 2, s. 2), if the property has been transferred,
lost or consumed by the defendant.
In the context of property law there is another rubric of an unjustified
enrichment claim that ought to be examined. The general unjustified enrichment claim mentioned above is precluded if the claimant has a legal
remedy based on another legal ground: namely contract, tort or a proprietary protection claim (art. 59, p. 2 OblCA). In the context of property
law the general unjustified enrichment claim primarily pertains to, or is focussed on, casual situations where it is considered that increased protection
should be proffered to the individual interests of the “disenriched” person.84
82
83
For an overview of the parallel existence of both claims, see Goleminov, Tch. Neosnovatelno obogatyavane, Sofia 1998, p. 77.
Comp. Goleminov (fn. 82), p. 77.
383
84
According to art. 72 and 74 OA, a possessor of property, in good or
bad faith, may claim expenditures; however a mere holder of property is
excluded from their ambit. The latter has a cause of action against the
owner of the property to claim what the owner obtained as enrichment,
provided that it does not lead to the impoverishment of the holder (art. 59,
p. 1 OblCA).85 Furthermore the general unjustified enrichment claim is
also applicable in three-party relationships.86 This is p. ex. the claim for the
value of construction materials sold by trader C that have not been paid and
have been used in the construction of an improvement by possessor B on
the immovable property of owner A. In this case owner A is the enriched
person in relation to seller C.87 Further particulars will be provided below.
1.5.
Transferability of the ownership of movables
1.5.1. General
Generally all movable property is freely transferable under Bulgarian property law. As mentioned above, several restrictions on the transferability of
movable property exist in order to protect public interests.
The restrictions on transferability of movable property can be subdivided into two categories. The first category has the objective of restraining
the alienation of certain movable property88, and the second triggers restrictions on the transfer of some movables but only with regard to a certain
group of persons who are licensed to own and to acquire specific property:
such as ammunition, guns, explosives, narcotics and precursors etc.89
84
85
86
87
88
89
For an overview of all such cases, see Goleminov (fn. 82) p. 100 et seq.
This is accord with the consistent practice of the Bulgarian Supreme Court, see
Decision nr. 1909 / 69 of the Supreme Court, 1st civ. ch.
Meant here are the broadly discussed “Dreieckverhältnisse” in the German legal
literature to unjust enrichment law.
The category of the three-party relationship is not elaborated in detail in Bulgarian civil law; very few authors like Vassilev (fn. 80), p. 600 discussed the topic on a
broader basis.
Such as property falling under so called “public state property”, which can not be
acquired by transfer or prescription (art. 7 SPrA).
Mainly regulated by special statutes and their statutory instruments, such as the
statutory instrument to the application of the control of explosives, arm-guns and
ammunitions, OJ nr. 78 from 3.9.1999, latest amendment OJ nr. 32 form 17.4.2007,
The Control of Narcotic Substances and Precursors Act, OJ nr. 30 from 2.4.1999,
latest amendment OJ nr. 36 form 4.4.2008. Concerning movable property necessary
for exercising activities under state monopoly, see also fn. 28.
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384
Restrictions on the owner’s right to dispose90 can arise as a result of
insolvency proceedings or as a result of an interim injunction during court
proceedings.
In case of an interim injunction being granted during court proceedings,
the owner of the tangible asset can not dispose of it (art. 452, p.1 CPC).91 If
the owner disposes of the asset in breach of an injunction, the third party,
e.g. the buyer of the asset, can oppose the creditors’ claims only with the
defence of having acquired the asset in good faith (art. 452, p. 1 CPC).
1.5.2. Transferability of other property rights in movables
Other property rights in another’s movable property, such as the right of
usufruct, are non-transferable rights (art. 56, p. 2 OA).
1.5.3. Restrictions on transferability
based on agreements of non-alienation
The possibility to alienate the right of ownership is part of the substance of
the property right. As considered above, the content of the property right
exists by virtue of law. This renders the principle that an acquired ownership right can not be restricted in its property effects if transferred to third
persons, through a contractual agreement.92
In contrast to this restriction, there is the possibility for the contractual
parties to establish an obligation for the person to whom the property is
conveyed not to transfer the ownership further to a third person.93 Such
an obligation shall be considered valid inter partes. It does not produce any
90
91
92
93
It is important to underline that the property belonging to the insolvency estate of
the debtor are to be regarded as property under general restriction of the right to
dispose. Under Bulgarian insolvency law the insolvency administrator has the right
to dispose of the property merely if there is a court order that allows the disposal of
the property by the insolvency administrator (art. 716, p. 2 CC).
Interim injunctions of the court against the defendant, which secure proprietary
claims, are often accompanied by the tradition of the removal by the bailiff to a third
person, who has the function to secure the tangible property, comp. Stalev (fn. 38),
p. 821.
Bulgarian law differs from the writings of certain older French legal scholars concerning the terms of an agreement regarding a temporal restriction on the transferability
of ownership due to serious reasons, see Venedikov (fn. 19), p. 158
For a comparative analysis concerning the validity of such contractual terms, see
Venedikov (fn. 19), p. 158-159.
2. Possession
385
proprietary legal effect regarding the acquisition of rights from third parties. In case the movable property is further transferred, the former owner
of the property can claim damages for breach of contract. Of course, such
contractual obligations have to be handled with caution.
The restrictions on the transferability of property should be considered
void if they affect essential property, if the term has the purpose of restricting the disposition by any subsequent transferee, or if the restriction is for
a very long time period.94
1.5.4. The main movable and its accessories
Bulgarian law recognizes the practical difference between movables that
are functionally independent and movables that have a close functional
connection with the “main” movable. This distinction follows from art. 98
OA,95 which is a non-mandatory rule.96 The contractual parties are free to
agree that only the main movable should be delivered, without the accessories. Otherwise, the transferor is obliged to deliver the main movable with
the usual accessories, e.g. a car with a spare tire, a jack etc.
Special legislation provides that certain movables for which an obligation to register exists, do not have to be registered if they are accessories
of a main movable that has been registered. These are vessels that could
be considered accessories to the main movable, e.g. life boats on a ship.97
2.
Possession
2.1.
2.1.1. Definition
The notion of possession in Bulgarian property law stems from the Roman
legal doctrine under which possession consists of the actual control – the
direct physical control – over property with the intention to hold it as the
possessor’s own.
94
95
96
97
Art. 98 OA:
The accessory shall follow the main property in the absence of an agreement to the
contrary.
Comp. Boyanov (fn. 24), p. 37, Vassilev (fn. 59), p. 24.
Provided by art. 11, p. 2 of the Government Decree for the Commercial Shipping,
OJ nr. 79 from 2.10.1953, latest amendment OJ nr. 55 from 12.7.1991.
386
Bulgaria
Art. 68 Ownership Act
(1) Possession is the exercise of actual control over property that the possessor
holds, either personally or through another, as his own.
(2) Detention means exercising actual control over property which the person
does not hold as the person’s own.
The definition of possession includes two elements: the actual control over
the property (corpus) and the intention to hold it as one’s own (animus).
2.1.2. The objective element of possession (corpus possidendi)
The “actual control” has to be understood as the opportunity to exercise
dominance over the movable or immovable, the possibility to influence the
property. The intention to exercise dominance over the property must be
constant98 and to its full extent.99 If the actual control is not exercised to
its full extent, this could be considered – if the partially exercised control
corresponds to the content of a property right to another’s property – as a
quasi-possession or a possession of a real right.100 The difference concerns
the diverse range of activities exercised by the owner or the person entitled
to the real right.
Regarding the actual control it should be mentioned that the possessor
has to be in a certain kind of physical proximity (realisable position) to the
property. This principle should not be taken as absolute. The high possibility that the movable property should be kept by the possessor is deemed
fully sufficient to accept the existence of actual control over the property.101
2.1.3. The subjective element of possession (animus possidendi)
To answer the question whether a person holds property as a possessor or
merely as a holder, Bulgarian law first poses the question whether the person
98
99
100
101
There is no actual control over property if a stranger spends a few nights in an empty
house; more examples by Venedikov (fn. 19), p. 41.
See Tadjer (53) p. 24 et seq.
The construction of quasi-possession plays an important role by acquiring a real
right through the acquisition of a real right (art. 78, p. 1, s. 2 OA); the possessory
protection of a real right (art. 75 OA); and the acquisition of a real right by means
of prescription.
Analyzing the examples of Roman law Venedikov (fn. 19), p. 43, e.g. there is no
possession if a wild animal is trapped by a hunter on real estate owned by another,
see also Hausmaninger, H., Casebook po rimsko chastno pravo, Sofia 2000, p. 310.
2. Possession
387
is holding the property with or without the intention to hold it as his own.
The differentiation between the diverse forms of animus marks the border
between possession and quasi-possession.
Hence, there is no possession, but a quasi-possession of a real right,
if the person merely has the intention to hold the property and to use it.
One example should establish clarity: the person who exercises full actual
control in making improvements may acquire the property on which improvements are made by virtue of prescription provisions; however, if the
person holds the property only with the intention to use it, this person will
only acquire a usufruct right in relation to the improvements made to the
property.102
Bulgarian legal doctrine103 considers the element of the intention to hold
property as one’s own as dependent on the legal capacity of the possessor. A
legally valid intention to possess is held by persons who are either fully legally
capable or partially legally capable. Under Bulgarian civil law, persons between 14 and 18 years old, and persons who have a mental illness or deficiency
that is not grave,, are considered partially legally capable.104 Persons who are
not 14 years old, or for whom a court appointed a legal guardian, are legally
incapable.105 They are regarded as not being capable to have the legally valid
intention to hold property as one’s own and therefore to possess property.106
Bulgarian property law provides that the subjective element of possession is presumed until it is proven that this person holds the property
for another (art. 69 OA107). The presumption is regarded as rebutted if it
is proven that the ground of possession is a contractual one, e.g. custody,
mandate or pledge, that binds the person to return the property.108 There is
no possession for another person if the possessor has not demonstrated his /
her own consent to possess through another person.
Other problems are posed by the question of whether the animus sibi
habendi should be always associated with the intention to hold the movable
property as one’s own. This is considerably problematic if the possession should
be exercised by an organ of a legal person. It has to be recognized that the
102
103
104
105
106
107
108
In this sense – Decision nr. 1667 / 68 of the Supreme Court, 1st civ. ch.
See Venedikov (fn. 19), p. 42; Tadjer (fn. 53), p. 28.
See art. 4 and 5 Persons and Family Act (PFA), OJ nr. 182 from 9.8. 1949, latest
amendment OJ nr. 120 from 29.12.2002.
Art. 3 and art. 5, p. 1 PFA
Article 69 OA:
It shall be presumed that the possessor holds the property as one’s own until proven that this
person holds it for another.
Further details by Boyanov (fn. 24), p. 44. Some authors consider legal incapacity as
a reason to rebut the presumption of art. 69 OA, see Venedikov (fn. 19), p. 42.
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388
legal person is only able to act through organs.109 In this case, the organs are
acting for the legal person by virtue of law or terms of the company charter.
Further it is possible that a third person, p. ex. an employee of the legal
person, possesses on behalf of the legal person without being an agent or a
legal representative. In this case, the legal representative of the legal person
will not be able to affirm the possession of the third person. In the cited
situation the animus of the employee can not be considered an intention
on the part of the legal person to possess.110
2.1.4. Other characteristics of possession
Additional to these general elements of possession, there are other characteristics of possession that are either important for the exercise of legal
remedies or are merely derivative, dictated by practical reasons.
(a)
Permanence
Possession should be exercised as permanent actual control over the property.111 The permanence of the possession includes the efforts of the possessor
to not allow disturbances of the possession by third persons. There is no
permanent possession if the possessor does not raise a claim to protect his
possession in a case where another person disturbs the possession with the
intention to exercise his / her own possession of the property.
(b)
Uninterrupted possession
Possession shall be uninterrupted if the possessed property has to be acquired by virtue of prescription.112 However the prescription period may be
109
110
111
112
Comp. Tadjer (fn. 53), p. 57, for further details Stavrou (fn. 24), p. 725.
See Stavrou (fn. 24), p. 727.
More about the five additional characteristics by Tadjer (fn. 53), p. 28 et seq; Djerov,
Al., Veshtno pravo, 6th ed., Sofia 2003, p. 59 et seq.
The provision of art. 80 OA is relevant to movable property: it provides that the
right of ownership of tangible property can be acquired after a period of five years.
Another important role is played by uninterrupted possession in the case where the
possessor claims protection due to an interference of the possession of an immovable.
This possessory claim can be used only if the possessor was possessing for a period
longer than six months (art. 75 OA). The possessor has to prove the uninterrupted
possession, see Bobatinov; Vlahov (fn. 67), p. 18.
2. Possession
389
suspended for a period for which the possessor was not in possession of the
property if this period is longer than six months (art. 81 OA).
(c)
Unequivocal possession
Possession has to be unequivocal. An obiter dictum113 repeats this requirement of the abolished APrRlRA (ab.) even if the provisions of the Ownership
Act, which are in force, do not adopt the wording of art. 302 APrRlRA (ab.).
The most widespread cases of complications related to unequivocal possession
are cases in which the co-owner who possesses for the other co-owners begins to
possess merely for himself.
(d)
Passive possession
The possession is passive if the possessor did not exercise violence to acquire it. If the possession has been interfered with by violence, the possessor
has the remedy of art. 76 OA. If the person claims the return of the property, the interferer has no possibility to protect the possession he acquired
by violence against the former possessor.114
(e)
Manifest possession
The possession has to be regarded as manifest and obvious. If it was acquired
in a covert manner from the former possessor and the possession remains
covert, it is not regarded as possession until it becomes manifest.115
The possession has not been acquired in a covert manner if the acquisition happened in front of persons that are bound by an obligation to inform
the possessor, e.g. the lessee (art. 233, p. 2 OblCA).
2.1.5. Detention
Bulgarian property law regards possession as a construct consisting of two
elements: animus116 and corpus. If there is merely the second, detention is
spoken of. The practical complications related to proving the subjective
element of possession are more or less bridged by the legal presumptions
113
114
115
See Decision nr. 304 / 95 of the Supreme Court, 1st civ. ch.
For a detailed argumentation and legal historical notes, see Tadjer (fn. 53), p. 32 et seq.
Further on this topic, see Boyanov (fn. 24), p. 46.
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390
introduced by the Ownership Act. In the opinion of the Romanic educated
lawyers, the results in practice are quite similar to systems that are grounded
on the Roman notion of possession.117
Detention is nothing other than the actual control over property without the intention to hold it as one’s own (see art. 68, p. 2 OA). The detention could be based on a different contractual relationship between the
detentor and the possessor, such as the entitled person of the right of ownership or another detentor (p. ex. in case of subleasing of the property).118
Hence, the custodian, the lessee, the bailee, and the forwarding agent are
only holders of the property as intermediaries. Similar to possessors, detentors of movable property can use legal instruments to protect the property
against interferences by third parties.
Bulgarian law does not distinguish between possession by a possessor
or by an intermediary. Possession may be acquired by an intermediary of
specific or generic property.
116
2.1.6. Intensity of the actual control over the movable
The person who exercises control over movable property has to actually
exercise the control or it must be reasonably expected that the person is
able to exercise it (see fn. 95).
It could be admitted119 that the state of possession is stable even if the
possessor is not in a situation to exercise actual control over the movable
property, when there is not a corpus to the movable during the entire period
of possession. The possession has to be considered as such unless there is a
reason to conclude that it has been interrupted. For example, the person
who places a coat in a coat-check is still the possessor. Hence, the possessor of a motor-vehicle does not loose possession if it is parked on a street.
Issues related to the transfer of possession from one person to another
are indeed similar to the questions of extent. Principally, the transfer of
possession from one person to another must be complete. Thus, there are
some situations where legal provisions provide that the person who has not
yet obtained possession of property could nonetheless exercise claims to
protect that possession. This is the hypothesis covered by art. 58 of the Law
116
117
118
119
In contrast to other jurisdictions in Europe, such as the German or the Austrian
legal systems, the animus as an element of possession is to be understood as animus
sibi habendi, see Vassilev (fn. 59), p. 29.
Venedikov (fn. 19), p. 41
Without mentioning the last category, comp. Tadjer (fn. 53).
This opinion represents the widespread view on the topic, see Tadjer (fn. 53), p. 61.
2. Possession
391
of Succession Act (LSA).120 According to this provision, the successor of a
person can raise claims, within the scope of protection of possession, until
the succession is admitted. This provision has the objective of avoiding a
future debate over property of the succession estate.
2.1.7. Different forms of possession
The most significant practical distinction between the different forms of
possession is the classification of possession as either possession in good
faith or possession in bad faith.
(a)
Possession in good faith
According to art. 70 OA, a person who has possession on a legal ground
that could make the possessor an owner is a possessor in good faith.
Article 70 OA:
(1) The possessor shall be deemed to possess in good faith when he possesses
the property on a legal ground fit to make the possessor an owner, without
knowing that the transferor is not an owner or that there is a defect in the form
prescribed by the law. It is sufficient that good faith exists at the time that the
legal ground arises.
(2) Good faith shall be presumed until proven otherwise.
(3) Where possession has been handed over on the ground of a preliminary
contract concluded with the property owner, the possessor shall have the rights
under Articles 71 and 72.
There are four elements of the rule of art. 70, p. 1 OA: the actual control
over property, the intention of the person who exercises the control to hold
the property as his / her own, the legal ground, and the subjective good faith
of the possessor in relation to the existence of the legal ground (alt. there
is a lack of form provided by law).121 The first two elements of possession
have been analysed above. Of more interest is the question of what must
be understood under the construct “legal ground”.
120
121
Law of Succession Act, OJ nr. 22 from 29.1.1949, latest amendment OJ nr. 59 from
20.7.2007.
A very systematic overview of the legal theory of possession in good faith is undertaken by Vassilev (fn. 59), p. 36 et seq.
392
(i)
Bulgaria
Legal grounds as a prerequisite of possession in good faith
The notion of legal grounds should not be confused with the notion of
causa as an element of a legal transaction (art. 26 OblCA) or with the term
“legal ground” as a prerequisite for an unjustified enrichment claim under
art. 55-59 OblCA.
Legal grounds as an element of the rule of art. 70 means a bilateral legal
transaction (e.g. contract), a unilateral legal transaction, (e.g. device or
legacy), a multilateral transaction (the contribution in kind under company
law), or an administrative or judicial act.122 The legal act that represents
the legal grounds should be considered an act by the transferor himself to
transfer the right, or an act of a state organ that binds the transferor.123
The juridical act, as legal grounds for good faith acquisition, plays two
important roles in relation to the proprietary legal effects of the acquisition.
The first function of the juridical act is orientated around the kind, content
and boundaries of the actual control exercised over the movable property.
When the category of juridical act affects the transfer of ownership,
the bona fide possessor will be able to acquire ownership according to the
prescriptive provisions under art. 80, p. 1 OA (movables) or under art. 79,
p. 2 OA. It must be underlined at this point that, in the context of acquisition of property in good faith (art. 78 OA), possession in good faith only
plays a role when the transferee acquires the right of ownership through
a non-gratuitous legal transaction. In contrast, if the transferee acquired
possession in good faith through a gratuitous legal act, e.g. donation, the
transferee does not acquire ownership under art. 78, p. 1 OA.
If the possessor has merely acquired quasi-possession of a real right, e.g.
a quasi-possession of the usufruct right, the possessor has only a legal ground
to acquire the right of usufruct of the property (see 2.1.7. below).124
122
123
For further details on the practical problems involved with the legal interpretation
of taking possession in good faith, see Interpretative Decree nr. 6/74 of the Supreme
Court, Plenum. Hence, judicial acts that can constitute a legal ground are only the
decisions that are to be regarded as a substitution for the legal translation. In Bulgarian
private law these are e.g. the constitutive court decisions that substitute the contractual conclusion, based on a preliminary contract (art. 19, p. 3 OblCA), or a decision
affirming the termination of joint ownership by virtue of marriage (art. 26 FC).
Thus, there is no legal ground which is not binding for the transferor. A practical
example is the so called “examination of circumstances”, which has to be done before the notary who decides if the necessary requirements of the law are present to
compile a notary act for acquiring property by virtue of the law of prescription. This
notary act is not binding on the transferor and does not lead to bona fide possession.
The assumption of ownership can be rebutted in court if it can be proven that the
prescription had not expired at the time of the compiling of the notary act.
2. Possession
393
124
The second requirement for recognizing that possession is acquired by
virtue of a juridical act is that the juridical act should be valid. If the juridical act is void, for example due to a lack of form,125 the possession acquired
can not be regarded as possession in good faith. This lack of form should
be distinguished from a so called “defect” in the form of the juridical act.126
This expression has to be understood in the sense that the form required by
virtue of law has been granted externally and, therefore, the act may later
be regarded as void.127
The legal grounds define the boundary of taking possession in good
faith. Thus, in case the property is to be co-owned and one of the putative
co-owners takes possession of it independently, the legal effects of good
faith acquisition are merely triggered with regard to the share of the property that should have been transferred by the juridical act.128
(ii)
The prerequisite of good faith
The last prerequisite of the bona fide possession is the requirement of good
faith. The possessor shall not have been aware that the transferor was not
entitled to transfer the property right. The unawareness of this fact is presumed (art. 70, p. 2 OA).
It is a widespread contention in the literature that the knowledge that
the transferor was not the owner of the property can encumber the possession of good faith.129 Knowledge of the fact that the titulus could be invali-
124
125
126
127
128
129
See Vassilev (fn. 59), p. 43.
By “lack of form” should be understood merely a the lack of the form prescribed by
virtue of law regarding the validity of the legal transaction. An example would be
the transfer of motor-vehicles. Art. 144, p. 2 RTA provides that motor-vehicles can
be transferred by a written sale contractö for the transfer of the ownership of a motorvehicle, a notary verification of the parties’ signatures. If the contract is not concluded
in accordance with these formal requirements, it will be considered as void.
The most widespread case represents the notary act that is granted externally but
that does not fulfil the requirement of validity: the immovable property found itself
not in the district of the notary, the notary did not signed the notary act etc.
This very complicated and controversial issue of defects of form has been broadly
discussed in the literature, see Tzonchev, Kr., Podobreniyata, Sofia 2001, p. 78 et
seq.; due to their particular significance for the transfer of immovable property, they
will not be mentioned at this point in detail.
Comp. Vassilev (fn. 59), p. 42.
This opinion seems to have been adopted from the French legal doctrine of possession in good faith, see Venedikov (fn. 19), p. 58.
Bulgaria
394
dated by one of the parties is not to be regarded as a circumstance that can
influence the possession in good faith.130
If the bona fide possessor subsequently becomes aware of the fact that
the transferor was not entitled to transfer the property right, the possessor
does not become a possessor in bad faith, according to the principle of mala
fides supervenient non nocet (art. 79, p. 1, s. 2).
(b)
Possession in bad faith
All other ways of acquiring possession are to be considered possession in
bad faith (otherwise called “unusual” possession).131
2.1.8. Possession of rights
In relation to the aforementioned, concerning the subjective element of
possession, possession can exist not only of movable and immovable property but also of rights.132 Thus, quasi-possession as a category is applicable
only to real rights; in the context of movables, these are: the right of usufruct and pledge.133
Bulgarian property law does not recognize the possession of relative
rights due the fact that134 specific legal effects arising from the provisions
on possession are specific to property rights.
2.2.
The functions of the legal framework on possession can be summarized
briefly. Before doing so, however, it should be noted that this legal frame130
131
132
133
134
This is the case if the transferor can claim that the avoiding of the act of transfer is
due to a lack of capacity (art. 27 OblCA).
See Tadjer (fn. 53), p. 115.
On the notion of “possession of relative rights” and its use, Venedikov (fn. 19), p. 38.
Quasi-possession is not possible by the mortgagee; this is another argument for the
non-proprietary character of the mortgage.
In respect to the pledge right, most authors are unanimous that the pledge right
can be the object of quasi-possession, although the second ingredient – the right
to change a legal relationship – has a relative character. Surely the bona fide quasipossessor acquires the entire pledge right, see Stefanov, St., Zakonut za osobenite
zalozi i zalogut vurhu nalichni zenni knija, Turgovsko pravo, 3 / 2000, p. 53.
For comparative solutions in other Romanic jurisdictions, see Venedikov (fn. 19), p. 38.
2. Possession
395
work is unrelated to several instances where the person in possession is not
the owner of the property he or she holds as his or her own. In this case,
the legal framework on possession does not protect the interests of the
non-owner possessor.135
Firstly, the general functions of possession that are applicable to all
forms of possession should be examined. Thereafter, the specific function
of possession in good faith will be discussed.
2.2.1. General functions of possession
The legal order awards protection to various forms of possession. This protection is unaffected by the fact that possession has been acquired legally or
illegally. There are two reasons for this position: 1) in most cases possession
is based on a legal ground; it enables an owner from whom the possession
of the property has been taken to rely upon the more expedient claim of
possessory protection, rather than the petitory actionable protection; 2) the
legal order aims at protecting property rights without allowing the entitled
person to resort to vigilantism.
Another function of the legal framework on possession is implied by the
necessity to regulate the legal relationships between possessors and persons
who are entitled to the right of ownership.136 Therefore, the possessor, even
if in bad faith, is entitled to make a claim against the owner for the expenditures that the possessor has incurred for the necessary maintenance of the
property (art. 73, p. 2 OA).
2.2.2. Functions of the possession in good faith
Bulgarian law assigns specific legal effects to the possession of property,
making a distinction between possession in good and bad faith. Thus, the
function of possession in good faith includes: 1) the possessor in good faith
acquires the fruits of the property; 2) the bona fide possessor acquires the
ownership of immovable property after expiration of a period of five years
(art. 79, p. 2 OA); 3) the possessor in good faith has the right to retain the
immovable or movable property until he receives reimbursement for expenditures incurred for necessary maintenance of or improvements to the property.
135
136
This does not conflict with the interests of the owner of the property. The person
entitled to the ownership may at anytime require the protection given by the legal
order, see Tadjer (fn. 53), p. 16 et seq.
Meant at this point is the linguistically very successful German notion of “Eigentümer-Besitzer-Verhältnisse”.
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396
Some scholars137 consider another function of possession in good faith,
namely good faith acquisition. As referred to above, the acquisition of
movables by persons who are considered in good faith by virtue of a nongratuitous juridical act, is not an acquisition of possession but rather an
acquisition of the right of ownership. From a dogmatic point of view, the
moment at which the right of “ownership is acquired” can not also be considered the moment at which the “possession is acquired”. From the point
the ownership is acquired on, the transferee acquires merely ownership and
can not be regarded as the possessor in good faith.
2.3.
2.3.1. Acquisition of possession through unilateral
acts of the possessor
Possession can be acquired through the unilateral acts of a person with the
intent to exercise direct physical control over the property and to hold it
as his own. If the property is found in the possession of another person,
the new possessor must take the property from its present possessor. It is
not necessary that the property is in the possession, or under the right of
ownership, of another person.138
2.3.2. Acquisition of possession with
the consent of the former possessor
Possession can be acquired not only through unilateral acts of the (new)
possessor but also, and this is the most common case, with the consent of
the former possessor. Consent is not regarded as a legal act that transfers,
changes or precludes rights.139 Thus, it does not require any form. If the
traditio is a consequence of an obligation to deliver possession by virtue of
137
138
Under the People’s Republic of Bulgaria, the legal system did not know property that
did not have an owner (res nullius), according to the abolished provision of art. 6,
p. 2 OA; for further details, see Tadjer (fn. 53), p. 48. This article provided that any
property that was not owned by someone, is owned by the state.
After the abolishment of art. 6, p. 2, the property, object of the usurpation, could be
the ground for acquiring the movable property by virtue of prescription (art. 80 OA),
due to the fact that the usurpation could not be considered anymore a criminal offence (Art. 80, p. 2 OA provides that a person can not acquire ownership of a movable
if the possession of the movable property has been obtained by a criminal offence).
2. Possession
397
a sale contract, a barter, a donation etc., the consent can be incorporated
in a contractual term.140
The delivery of possession can take place not only by giving the property to the new possessor, but also by delivering it to the house of the new
possessor; or under circumstances where it is clear that the new possessor
will acquire the possession in the future and that the former possessor has
surrendered possession.141
139
2.3.3. Acquisition of possession by a third party
Bulgarian property law allows the acquisition of possession by a third party.
The requirements for this kind of acquisition of possession are: 1) the potential possessor intends for the third person to hold the property for him,142
2) the third person exercises the actual control over the property, 3) the
third person acquires the corpus of the property in order to possess the
property, not as his or hers own, but for another.143
As mentioned above the acquisition of possession by a third person can
be based on a contract of mandate, working contract etc. The possession is
regarded as acquired if the third person acquires the corpus of the tangible
property, relying that the animus of the possessor already was at hand due
to a legal relationship between the possessor and the third party.144
139
140
141
142
143
144
Derived from the Decision nr. 803 / 94 of the Supreme Court, 1st civ. ch., Tadjer’s
argument in support of the thesis that consent is not a juridical act, relies on the fact
that the new possessor can acquire possession based on an illegally given consent;
see Tadjer (fn. 53), p. 52.
In practice the most common case concerns contractual terms to deliver the possession under a preliminary contract. Ex lege the possessor by virtue of a preliminary
contract is a possessor who has the rights of a possessor in good faith regarding the
acquisition of the fruits and the expenditures (art. 70, p. 3 OA).
Scholarship went even further and extended the case group, mentioned above, to
contractual agents. This could be the situation where the principle by virtue of a
contract of mandate empowered the representative to acquire possession, not only
of movable property specified by the mandator, but to also acquire possession generally within the authority of a mandator regarding the property administration for
another. Under Bulgarian law there is no restriction for acquiring possession if the
mandator acts within the mandate contract and the principal has no concrete animus
possidendi, see Tadjer (fn. 53), p. 57; Venedikov (fn. 19), p. 46.
For further details, see Tadjer (fn. 53), p. 55.
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398
The general principles that apply to acquisition of possession, such as
the principle of special proximity to the property, are also applicable to the
acquisition of possession by a third person, e.g. it is sufficient for the third
person to obtain the document that legitimates the possessor.145
2.3.4. Possession of an inheritor
The abolished art. 309, p. 1 APrRlRA provided that the heir acquires the
possession ex lege after the accrual of the inheritance even if the heir did not
know about the accrual of the inheritance or the death. This provision has
not been incorporated into The Ownership Act. Nevertheless, this principle can be deduced from several provisions. This point of view is widespread
in the literature and seems to be recognized in the jurisprudence as well.146
An argument for this thesis is the protection of the possession granted by
art. 58 LSA to the heir, and the possibility for the heir to cumulate the possession of the deceased person’s property with his or her own possession.147
2.3.5. Constitutum possessorium
A specific type of acquisition of possession is the situation where the possessor ceases to be a possessor and merely becomes a detentor of the property.
For example, a constitutum possessorium has to be presumed by virtue of a
sale contract, which transfers the ownership of specific property, but the
property has not been delivered yet to the new owner.148
2.3.6. Traditio brevi manu
Another method to acquire possession is the so called traditio brevi manu,
which occurs by the conversion of the detention into possession. This can
be the case if the former detentor acquires the ownership of the property
under a juridical act that is able to transfer ownership. The consent in the
145
146
147
148
E.g. a bill of lading.
Categorical therefor: Decision nr. 759 / 96 of the Supreme Court, 1st civ. ch., Decision nr. 664 / 94 of the Supreme Court, 2nd civ. ch. ?; see also Vassilev (fn. 59), p. 32;
See Tadjer (fn. 53), p. 60. He suggests that the acceptance of the inheritance by the
heir (art. 48 LSA) has effects ex tunc.
For further details on the property effect of the sale contract, see Kojuharov (fn. 20),
b. I, p. 114 et seq.
2. Possession
399
traditio brevi manu is implied in the juridical act that transfers ownership,
p. ex. the lessor sells to the lessee the property in detention of the lessee.149
2.4.
2.4.1. General
Bulgarian civil law recognizes several methods for protecting all forms of
possession. There is no difference if the possession has been acquired legally
or illegally, or if the possession is considered made in bad or in good faith.
Detention also enjoys possessory protection by means of the claim of
art. 76 OA. The claims referred to in the following provisions intend to protect all kinds of possessors. These are in general the claims based on art. 75
and 76 of the Ownership Act. Not too long ago (under the legal regime of
the old Civil Procedure Code (ab.)), a particularly expedient procedure for
possessory protection existed. This kind of proceeding has not been adopted
under the new Civil Procedure Code.150
Article 75 OA
The possession of immovable property or a real right over such property, including servitude that has continued for more than six months, may be defended
against any violation. The action must be brought within six months.
Article 76 OA
A possessor or a holder of movable or immovable property that has been taken
from the possessor or holder through violent means or through concealment
may, within six months, request that it be returned by the person who has taken
it. This does not exclude the right of the person who has taken the property to
bring an action under the previous Article.
Due to the restricted application of art. 75 OA to immovables, the protection granted by art. 76 OA is of primary interest here.
149
150
One of the arguments of the new project for a Civil Procedure Code against the so
called “administrative” protection, consisted in the restoration of possession against
an unknown interferer, cited in the online publications of the results of the working
committee.
However, the efficacy of these measures of protection cannot be disregarded. The
court order used to be executed not by the bailiff, but by police organs or by the
mayor of the municipality.
400
Bulgaria
The claim under art. 76 OA encompasses not only the protection of possession but the protection of detention of movable and immovable property
as well. In contrast to art. 75 OA, the period of possession or detention is
not a relevant prerequisite under art. 76 OA and the claim can be raised
anytime.
A very important characteristic of the claim under art. 76 OA is the
possibility of the detentor to raise a claim against someone in possession
of the property after depriving151 the detentor of the detention through
violent means or concealment.152
“Violent means” involves the practice of violence or uttering a threat.
The violence can be exercised not only against the possessor or the detentor, but also against the property itself, e.g. a by destroying a fence in order
to take the property from the possessor or from the detentor.
Concealment represents instances of the property being taken away from
the possessor or the detentor when it is done in a manner or at a time that
does not allow the possessor or the detentor to detect the deprivation. Concealment involves the attempt of the detentor, e.g. a lessee, to hold the property as his or hers own, denying the right of the possessor. Concealment is
only identified in cases where the possessor is not aware of the interference.
This is not the case if a person who holds the property for the possessor, e.g. as
a lessee, must inform the possessor about any interference of the property.153
The two elements of the rule of art. 76 can not practically be cumulated.
However, there could be situations that have the characteristics of both
elements.
The claim based on art. 76 OA can be brought not only against the
person who deprived the possessor or the detentor of the actual control over
the property, but also against the person who initiated the deprivation of
the property. If the movable property that has been taken away is found by
a third person, the possessor or the detentor cannot reclaim the tangible
property from that third person, due to the personal character of this action.
This represents the main difference between the claim under art. 75 OA
and art. 76 OA. The claim under art. 76 can only be raised against a person
who has deprived the possessor or the detentor of the actual control over
the property, or the universal successors of that person, but not against any
151
152
153
Tadjer regards “deprivation” as a terminus technicus under art. 76 OA, which is subject
to a broader interpretation. Deprivation has to be qualified, as not every interference completely deprives the possessor or the detentor of the actual control over the
property, but merely part of the actual control, see Tadjer (fn. 53), p. 115.
E.g. the lessor violently deprives the lessee of the detention; for more examples on
the protection of persons entitled to a real right, regarding immovables, see Bobatinov; Vlahov (fn. 67), p. 20.
See above 2.1.4.
2. Possession
401
third party. So far, this claim constitutes an incomplete instrument of protection against third parties that have acquired possession of the property.154
2.4.2. Self-help
The right of the possessor to defend himself through self-help against acts
of dispossession or interference is not provided by the Ownership Act.
However, there is a comprehensive principle applicable:155 every possessor
can defend his possession in order to reject attempts to dispossess him or to
interfere with his possession.
The possessor may use all means within the scope of legally permissible
self-defence under criminal law requirements. This would not be the case
if the person who exercises self-defence does so outside the boundaries of
allowed self-defence (so called “excessive self-defence”). Moreover, under
Bulgarian criminal law, the act of self-defence will not be considered excessive if the person who intends to take possession of the property has
forcibly entered the house of the possessor,156 or if defence of the possession
is made under the fear and anxiety of the possessor brought about by the
interference.157
If the interferer dispossesses the possessor of movable property, the possessor may defend his property even after the wrongdoer has taken the property. The requirement for the re-establishment of the actual control over the
property is that the violator has been caught at the place of the interference
with the tangible property. If the movable has been taken away and the possessor has lost his possession, the only way for the possessor to re-establish
possession is to raise a possessory claim against the transgressor.158
154
155
156
157
158
Art. 523 CPC is applicable to immovables, which allows for the execution against a
third person who is in possession of the immovable property. This has to be regarded
delege ferenda as a feature for future amendments.
In order to more closely define the scope and the requirements under which the
possession can be defended by way of self-help, some authors have recommended
the codification of the institute of self-help, see Tadjer (fn. 53), p.76.
The question whether the detentor may defend the detention in the same way as
the possessor, has not been discussed, but it seems to be accepted in the literature.
That may be supported, if the protection of possession is regarded not as a protection
against interferences to substantive rights but as a violation of the prohibition of
vigilantism, see Vassilev (fn. 59), p. 480.
Comp. art. 12, p. 3 Penal Code (PC), OJ nr. 26 from 2.4.1968, latest amendment
OJ nr. 19 from 22.2.2008.
Art. 12, p. 3 PC.
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402
3.
Obligatory rights with similarities to the
protection of absolute rights
As stated above, the rights in rem are absolute rights, which can be claimed
against every third person. The differences mentioned above, however, are
not exclusive.
Thus, the problems affiliated with the distinction between absolute
and relative rights are greater than the solutions Bulgarian legal scholars
have accepted without question.159 In this context, there are several details,
which have to be mentioned.
Firstly, the main theoretical problem is the distinction between absolute
rights and certain relative rights, such as the right to change a legal relationship of the mortgage due to the opportunity of the mortgage creditor
to execute on the immovable property subject to the mortgage.160 Thus, it
can not be ignored that the mortgage, as already mentioned, has an element
that has an absolute character: the right to demand that no one exercise
influence over the immovable property in any manner that can lead to a
decrease in value.
Secondly, as to whether the right of retention is de facto relative or
absolute, it should be noted that the right of retention generally can not be
claimed against a third person (for details see bellow 15.4.) and, therefore,
there is no absolute right of retention.
In contrast to these absolute rights, which compose property rights under Bulgarian law, a preliminary contract does not have a property law effect; it is not possible to transfer property rights by means of a preliminary
contract. The only possibility for the contractual party to acquire ownership
of the property is to claim according to art. 19, p. 3 OblCA. The constitutive court decision then replaces the conclusion of the final contract and
can be joined with a revindication claim.161
159
160
161
The issue concerning if the mortgage and the right to retain property merely imply
a privilege – which constitutes a right to satisfy the entitled persons against every
third person, or if they are only securities, is not resolved, see Konov, Tr., Vuzrajenie
za neizpulnen dogovor i pravo na zadurjane, p.67 et sec.
Venedikov (fn. 24), p. 18 et seq.
Comp. Kalaydjiev (fn. 21), p. 121.
4. Field of application and definitions
4.
Field of application and definitions
4.1.
403
Bulgarian property law makes a distinction between the acquisition of obligatory and property rights. The transfer of obligatory rights, such as the
assignment of claims, is governed by provisions of the law of obligations.
Property law provisions are applicable to the transfer of the right of ownership and real rights in another’s property.
A broadly discussed theoretical topic is the question whether the rules
on transfer of ownership also affect the transfer of ownership of money.
Some authors consider money tangible property that does not rely upon
the rules on acquisition of movables in good faith (art. 78 OA).162 Other
authors defend the thesis that some of the rules on the transfer of movables
also apply to the legal regime of money.163
This point of view has to be accepted with the following qualification:
the owner of the money can reclaim stolen money through revindication
due to the fact that, in some cases, it is possible to identify stolen coins or
banknotes; moreover, money that has a higher numismatic value can be
revindicated, even if it is in circulation as local currency.
4.2.
Definitions
Under the definition of “property”, sometimes translated “thing”, Bulgarian
property law includes all objects that have the quality of being corporal,
with the exception of human beings. Even though electricity and other
types of energy do not constitute a substance necessary to be corporal, Bulgarian property law defines them as a “movable thing” (art. 110, p.2 OA).164
The distinction between movable and immovable property is of fundamental importance. Under Bulgarian property law, immovable property includes all plots of land, plants, buildings and other objects that are attached
permanently to land or buildings (art. 110, p. 1 OA). All other property
shall be considered movable property (art. 110, p. 2 OA).
Animals are considered movable property as well. However, there are
several special rules that influence the transferability of animals, e.g. art. 11,
162
163
164
See Stalev, J., Vestnopravniyat rejim na parite, Suvremenno pravo, 1 / 1994, p. 7-16.
Under this point of view, even the thief acquires ownership of stolen money. The
former owner of the money has only a claim of unjust enrichment and not a revindication claim.
Kalaydjiev (fn. 21), p. 166.
See fn. 1 supra.
Bulgaria
404
p.1 of the Animal Protection Act165 prohibits the sale of animals to persons
under the age of 18.
Securities, such as negotiable instruments, are not considered “things”.
Bulgarian law does not have a common definition for a security instrument.
Rather, a security instrument constitutes a private document that has the
form and content required by law, embodies a declaration of an intention to exercise the right that grants the actual control over the document
and its traditio.166 Nonetheless, securities may, depending on their type, be
transferred according to the rules on transfer of movables. Additionally,
there may be other requirements for the transfer of certain instruments: the
instruments made out to order may only be transferred if the requirement
of endorsement is fulfilled, and bearer papers only through an assignment
of claims.
165
166
The Animal Protection Act, OJ nr. 13 from 8.2.2008.
Kalaydjiev, A., Bezkasovoto plashtane, Sofia 1999, p. 438.
Part II:
5.
Consensual system of transfer of ownership
5.1.
Basics
5.1.1. General view of modes of acquiring ownership
Juridical facts that affect the establishment and preclusion of property rights
are the so called acquisition modes of acquiring the right of ownership.
Acquisition modes in Bulgarian property law are provided by law. Parties
to legal transactions do not have the possibility to agree on other modes of
acquiring and relinquishing property rights.
Article 77
The right of ownership may be acquired through a legal transaction, by prescription or by other means provided by the law.
According to art. 77 OA, the two principle modes of acquiring the right
of ownership are 1) original and 2) derivative acquisition. With regard
to its applicability to all, or just to a particular kind of property (e.g. only
to movable property), the mode of acquisition may be further qualified as
specific or general.
The original acquisition of ownership does not include the prerequisite
of an existing ownership right of a person. The most important instances
under Bulgarian property law are: 1) acquisition by virtue of prescription
(art. 79 et seq OA), 2) acquisition through possession in good faith, 3) acquisition of found property by the municipal community (art. 89 OA), 4)
acquisition of a treasure by the state, 5) acquisition by processing (art. 94
OA), and 6) acquisition through incorporation (art. 97 OA).
Similar to other jurisdictions in Europe, the list of modes of acquisition
is not exhaustive, e.g. an original mode is also the acquisition of movable
property from a judgement debtor upon an execution levied by the creditor
or by a third person (482, p. 2 CPC), or the acquisition of movable property
from an insolvency estate (art. 717k, p. 2 CA).
The derivative acquisition implies an acquisition of the right of ownership through a person who has been entitled to transfer the ownership
to the transferee. Ownership will be acquired through legal succession.
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406
However, it is possible to acquire ownership by way of derivative acquisition even if there is no legal succession. This is the case where the owner
of property acquires its fruits. The owner acquires ownership of the fruits
merely due to his own right of ownership. Since the owner can not be a
legal successor of himself, the acquisition of the fruits may be regarded as a
derivative acquisition without legal succession.167
The fact that the transferor of the property is not the owner of the
transferred property is not grounds for the invalidity of the transaction.
The non-ownership of the transferor may only be legal grounds for terminating the contractual relationship.168 In this regard, Bulgarian civil law
distinguishes between the validity of the contract and the possibility of the
debtor to fulfil the obligation.169
5.1.2. Consensual transfer system
Bulgarian law follows the French-Italian system170 of contractual transfer.
Traditio of the movable property is not required for the transfer of ownership
to the transferee. The consensual transfer system is a milestone in Bulgarian law of property and of obligations. It has been established mainly in
favour of the protection of the transferee in order to ensure the transfer of
ownership. If this would not be the case, the transferee would not have an
efficient remedy, by means of a second legal proceeding with proprietary
effect, to acquire ownership of the property from a previous owner unwilling to transfer the right of ownership.171
The derivative acquisition of ownership presupposes the existence of
the right of ownership of the transferor. If the transferor is the owner of the
transferred property, the transferee will acquire ownership of it.
Art. 24 Obligations and Contract Act
(1) In case of contracts for the transfer of ownership and for creating or transferring other property rights in specific property, the transfer or the creation shall
occur on the strength of the contract itself and shall not require the property
to be delivered.
167
168
169
170
171
Only a valid contractual relationship may be terminated, Decision nr. 507 / 94 of the
Supreme Court, 1st civ. ch., see also art. 189, p. 1, s. 1 OblCA.
See Goleva, P., Obligazionno pravo, 4th ed., Sofia 2008, p. 188.
Apostolov, Iv., Obligazionno pravo. Chast purva. Obshto uchenie za obligaziyata,
Sofia 1990, p. 48.
Comp. Apostolov (fn. 170), p. 48.
407
(2) In case of contracts for the transfer of ownership of generic property, ownership shall be transferred when the fungibles are specified by agreement of the
parties and, in the absence of such agreement, when they are delivered.
Another consequence of the derivative nature of acquisition of ownership
is its retroactive effect that can extinguish the title of the transferor, which
is derived from the maxim resoluto iure dantis resolvitur ius accipientis.
5.1.3. The principle of art. 24, p. 1 OblCA
The provision of art. 24, p. 1 OblCA introduces a general principle of
obligations in Bulgarian law. The parties can not deviate from the effects
of art. 24, p. 1. OblCA due to the numerus clausus of the modes of acquisition under Bulgarian law.172 If the parties agree that the proprietary effect
of the contract should produce transitional effects after the delivery of the
movable property, this term is considered void.
5.2.
Proprietary-obligatory effect of the contract
5.2.1. Transfer of specific property
In the case of transfer of specific property, the transfer of ownership occurs
at the moment of the conclusion of the contract. This follows from art. 24,
p. 1 OblCA. The rule of art. 24, p. 1 OblCA is only applicable to obligations resulting from a contract.
The proprietary-obligatory effect occurs if the parties have agreed that
the transfer of ownership must be transferred by the conclusion of the contract. Such an agreement is implied in the contract, if the nature of the
contract typically involves proprietary-obligatory effects at its conclusion
and the opposite is not stipulated in the contract.173 An exception to this
principle is when the arising of the proprietary-obligatory effect can be
shifted to a later moment in time by contractual agreement of the parties.
Typical cases are the sale under reservation of title (art. 205, p. 1 OblCA)
and the sale on approval (art. 204 OblCA).
In addition to the sale contract,174 a proprietary-obligatory effect of
acquisition of property can occur through a donation, or a contract of assignment of claims – if the assignment transfers proprietary rights.175
172
173
Comp. Stavrou (fn. 24), p. 612-613.
For further details, see Venedikov (fn. 19), p. 149.
408
Bulgaria
An exception to the principle of the proprietary-obligatory effect of the
contract is the transfer of bearer security instruments. This follows from
art. 185, p. 1 CA and art. 119, p. 3 MSC. Even if the security instrument
has been specified, the acquirer of the instrument should acquire possession
of the bearer instrument in order to realize the rights incorporated in the
instrument.176
174 175
,
5.2.2. Transfer of property that must be specified alternatively
If the contractual parties do not agree that ownership shall pass to the
transferee, the proprietary-obligatory effect does not occur if the property
must be additionally specified. In this case, the ownership right will be
transferred after the property has been specified. The specification may
only be affected by an act of the creditor, the debtor, a third party or by
the court.
The specification represents a unilateral act.177 After the notification
of the specification, the specification becomes irrevocable (art. 130, p. 2
OblCA). The irrevocability of the specification follows from the character
of the right to specify, the exercise of which invokes the proprietary effect
of the contract.178
Under Bulgarian law if there is no other agreement, the debtor should
have the right to specify (art. 130, p.1 OblCA). If the specification must
be exercised by a third person, the specification becomes effective when
notification of it has been given to both the transferor and the transferee.
174
175
176
177
178
The black-letter rule of Art. 183 OblCA does not correspond to the literal use of the
expression that the seller has the obligation to transfer ownership to the buyer. This
definition corresponds to the case where the transferred property is generic goods or
has to be specified alternatively.
Art. 183 OblCA: Under the contract of sale the seller has the obligation to transfer to
the buyer the ownership of property or another right for a price, which the buyer has the
obligation to pay to the seller.
See Kalaydjiev (fn. 166), p. 444; Stavrou (fn. 24), p. 613. The delivery of the bearer
paper is also required, if the bearer instrument embodies the acquisition of ownership
of goods. The most common case under Bulgarian law is the bearer bill of lading
used in merchant shipping (art. 119, p. 3 MSC). The delivery of the bearer bill of
lading effects the transfer of ownership. Hence, after acquiring the possession of the
instrument the acquirer can alienate the property right.
Kalaydjiev (fn. 21), p. 158; Kojuharov (fn. 20), p. 128.
If there are several creditors of the debtors, the specifying person has to make the
specification only of one of them (art. 130, p. 2 OblCA).
409
In case the ius variandi is not exercised by the person who should specify the
property to be transferred, the right to specify is passed to the other party.
If the specification should be made by a third person and this person does
not specify after the expiration of the time to specify, the specification is
exercised by the court (art. 131, p. 3 OblCA).
The question as to when the proprietary-obligatory effect occurs, when
there is an obligation to specify between two or more alternatives, is widely
discussed in the Bulgarian legal literature.179 The older doctrine180 qualified the moment of transfer of the right of ownership as the moment of the
conclusion of the contract, based on the assertion that the specification has
a retroactive effect (ex tunc). According to this opinion, the ownership is
transferred at the time of the conclusion of the contract. This theory on
the transfer of ownership has been criticized181 mainly due to the concern
for the protection of the interests of third parties.
The arguments affirming that specification under Bulgarian law merely
has an ex nunc effect, do prevail. The four brief arguments in favour of
this are: 1) Bulgarian law does include a legal rule that is similar to § 263,
2) the BGB provides for a retroactive effect of the specification, 3) retroactive effects are exceptions that are expressly governed law, and 4) this
solution corresponds to the interests of third parties, since in this case the
creditor could vindicate the specified property from the insolvency estate
if the debtor becomes insolvent between the time of the conclusion of the
contract and the specification.
Consequently, the specification has to be regarded as having an ex nunc
effect, which transfers the right of ownership of the specified property at the
moment of specification. In case one of two alternative items of property,
either of which may be transferred through specification, vanishes, but not
due to the fault of the person who did not have the right to select the object
of the performance, the transfer of ownership is accomplished regarding
the property that can still be transferred by the other party (art. 132, p. 1
OblCA).
5.2.3. The transfer of ownership of generic movables
Art. 24, p. 2 OblCA provides that the transfer of the right of ownership of
generic goods occurs after the parties have agreed upon the identification
of the goods or, in case of lack of such an agreement, the ownership of the
179
180
181
See Apostolov (fn. 170), p. 61 et seq.
Instead all see Kojuharov (fn. 20), p. 129.
410
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goods is transferred at the moment of their delivery.182 “Delivery” is to be
understood as the obtaining of the actual control over the property by
the transferee.183 It is sufficient for the transfer of ownership, if the buyer
receives the “document of title”, e.g. the bill of lading.
The most common opinion in the legal literature184 and jurisprudence185
refers to the transfer of risk as the relevant moment, with regard to the
delivery of generic goods, at which ownership is acquired by the transferee.
Art. 186a, s. 1 OblCA provides that the risk during the sale of generic goods
is passed on to the buyer of the goods after the agreement on the identification or the delivery of the goods. In case of a distinct sale contracts, the risk
is passed to the buyer when the goods have been delivered to a forwarder
or a carrier (art. 86, s. 1 OblCA).
This lack of a more detailed non-mandatory rule under Bulgarian law
has rendered a legal uncertainty regarding the question whether the moment of the delivery to a forwarder, or to a carrier, can be regarded as
the time of identification and acquisition of the property transferred, or if
this merely is the moment when the risk passes to the buyer of the goods.
The dominating part of legal scholarship explores the time of delivery to a
forwarder, or to a carrier, as the time of identification of the generic goods
and thus the moment of transfer of the ownership of the movables.186 This
opinion is founded on the rules concerning the place of performance by the
debtor. According to art. 68, l. “c”, the debtor has to perform at his place
of residence at the moment the obligation arises. De lege ferenda would be
a non-mandatory rule that specifies the identification in case of delivery
of the movables.
Coming back to identification, which occurs through an agreement of
the contractual parties, the identification can be made in different ways.
The transferor and the transferee may come to an agreement, whereby they
shall decide that the goods are to be identified only by the debtor, e.g. the
182
183
184
185
186
If there is a lack of identification of the goods that are to be transferred, the transfer
of ownership occurs not merely through the acts that specify the generic goods,
such as the weighing and the separation from the rest of the goods, but through the
delivery to the transferee, see Decision nr. 237 / 55 of the Supreme Court, 4th civ. ch.
For a dissenting opinion, see Venedikov (fn. 19), p. 151, asserting that the delivery
should be understood as a bilateral transaction – as the acquiring of actual control
over the property is not the only requirement for the identification, but also required
is the consent of the buyer who has to accept the goods. This opinion can not be
adopted, as the delivery merely serves to replace the lack of consent (art. 24, p. 2
OblCA).
See Kalaydjiev (fn. 21), p. 156; Kojuharov (fn. 20), p. 122 et seq.
Interpretative Decree nr. 5 / 64 of the Supreme Court, Plenum.
See Kojuharov (fn. 20), p. 123.
411
goods have to be delivered to the store of the transferee or that the transferor gives a notice to the transferee of the specification made.
5.2.4. Transfer of future movables
The most common case of transfer of future property concerns the contract
of sale of future goods. Bulgarian law of obligations distinguishes between
contractual agreements that set a condition (emptio rei speratae) and aleatory contracts of sale (emptio spei). In both cases the proprietary effect of
the contract arises with the production of the goods.
The moment of occurrence of the future property raises certain problems in conjunction with a divorce: what happens to property under a contract for construction ordered by a party during marriage, but constructed
after the divorce (in other words, after the termination of the marital coownership). Under Bulgarian law future property is not an object of coownership by virtue of marriage.187
The right of ownership of future property is regarded as transferred only
when that future property has been specified in such a way that there is no
doubt that the property can be identified.188 If not, the rules on transfer of
generic goods shall be applicable.
Another question connected to the transfer of future property arises
from the interdiction of art. 226, p. 2 OblCA, which restrains the transfer
of future property by a contract of donation. Such contracts are void. Bulgarian legal doctrine, which briefly discusses this topic, is of the opinion
that “future property” in this context has to be understood as only property
for which the donor has no expectation of remuneration and for which the
donor does not have to make any additional effort to acquire.189
5.2.5. Transfer of ownership of movables
not yet owned by the transferor
As already considered above, a contract of sale of movable property owned
by someone other than the seller is valid and binding on the transferor. In
this case, the transferee will acquire ownership of the property when the
transferor acquires it.
187
188
189
Further details on the case law by Stavrou (fn. 24), p. 97.
Decision nr. 455 / 2004 of the Supreme Court of Cassation, 2nd civ. ch.
Further details on this rare discussed topic by Stavrou (fn. 24), p. 103.
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412
If the transferee does not know that the property is owned by another,
it is sufficient for the transfer of ownership if the third party confirms the
transaction.190
5.3.
Contractual autonomy and transfer of title
Thus, under Bulgarian law the parties may freely define the transfer of the
risk (art. 9 and 186a OblCA) and the transfer of the right of ownership.
This would be the case if the seller and the buyer agreed that ownership
of the goods shall be transferred only if the full price of the goods sold is
paid – reservation of title. Due to the protection of the interests of third
parties, such as creditors of the contractual parties, the concept of retention
of title by the seller can be opposed against the creditors of the buyer only
if the agreement on retention of title has been fixed in a written document
with an authenticated date (art. 205, p. 2 OblCA).
5.4.
Effect of the transfer of ownership
The acquisition of the right of ownership implies the possibility for the
transferee to dispose of the movable. In case of reselling the acquired movable to a third person, the former owner of the property can oppose his
right to retain also against the new owner of the property.191 It must be underlined at this point that under Bulgarian law the right to retain movable
property (art. 91, p. 1 OblCA) can be exercised to secure a claim arising in
connection with the preservation, maintenance, repair or improvement of
movable property, or in connection with damage caused by the property,
only if the person intending to retain the property did not acquire the direct
physical control over it by an illegal intentional act.192
An example should clarify this situation: assume a herd of sheep owned
by A damaged the property of B, who retains the animals because his tort
law claim is not satisfied. In the meantime, A sells the herd to C who aims
to vindicate the animals from B. The legal doctrine in this case provides
190
191
192
See Kalaydjiev, A., Obligazionno pravo. Obshta chast, 4th ed., Sofia 2007, p. 270.
This could be derived from the principle that the right to withhold performance can
be exercised only against the other party to the contractual relationship.
This does not follow from the grammatical interpretation of the provision of art. 91,
p. 1 OblCA (it uses the expression “not in good faith”) but from the comparative
analysis of its origin: § 273, p. 2 of the German BGB, see Venedikov (fn. 19), p. 234;
413
that the right to retain the movables can be opposed as well against C due
to the fact that here the right to retain is similar to a real pledge, which can
be opposed against every third person.193
This conclusion results from the main function of the right to retain –
that being to secure the interest of the retainor by giving him a privilege
(art. 91, p. 5 OblCA). This is not the case if the person retains the property
in order to exercise a right to withhold performance of a synallagmatic
obligation (art. 90, p. 1 OblCA). Following this legal logic, the right to
withhold performance in order to obtain performance could not be exercised against third persons such as e.g. the further owners of the movable
property.194
The situation is even more complicated due to the fact that the Bulgarian legal system recognizes different rights to retain property based on, in
some cases, overlapping juridical facts. One of them is the right to retain
by merchants, which is ruled by art. 315 CA. In contrast to the right to
retain under art. 91, p. 1 OblCA, the commercial right to retain is limited
to goods and security instruments given to a party in a bilateral commercial
transaction. It is applicable as well in cases where the person that owns
the goods becomes insolvent, even if the obligation of this person is not
due yet (art. 315, p. 5 CA). Due to a poor transposition of the provision in
art. 369 from the German Commercial Code,195 the commercial right to
retain the goods or the security instruments can be exercised merely against
the creditors and the universal successors of the parties to the commercial
transaction, but not against the persons that acquired the property or the
security instrument by a legal transaction (arg. from art. 315, p. 3 CA).
Another problem connected to the commercial right to retain the property is the requirement that the retainor exercise direct physical control
over the property, which could restrict the applicability of this legal instrument to situations where the creditor has to exercise his right of stoppage in transit. Some of these complications are partly solved by the fact
that certain creditors, e.g. the carrier (art. 375 CA) or the commissioner
(art. 357 CA), have a legal right of pledge that encumbers the goods over
which they exercise actual control.
Apart from these problems, there are the following further effects of
the transfer. The person who acquired ownership of the movable property
can claim vindication of it from a third person who stole the property from
the former owner. The transferor is no longer entitled to the fruits of the
193
194
195
Kojuharov (fn. 20), p. 179. Categorically for the absolute character of the jus retentionis, Konov (fn. 159), p. 79.
But it can be opposed against third persons, such as the assignee or a subrogated third
person, see Kalaydjiev (fn. 191), p. 269.
Further details by Kalaydjiev (fn. 191), p. 280.
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414
tangible property and therefore cannot claim restitution (art. 59 OblCA)
in the event the object had been used unlawfully by a third party. The unjustified enrichment can be claimed only by the owner of the property due
to the fact that only the owner is entitled to lease the movable property, if
it should have been leased to the enriched person.196
5.5.
Requirement of a valid obligation to transfer ownership
5.5.1. Contracts that transfer ownership
The contracts that can transfer ownership under Bulgarian law include
the following (non-exclusive): 1) sale, 2) barter, 3) transfer of property for
caretaking and maintenance, 4) donation, 5) short-term loan for use, and
6) partnership. The main contract that can transfer the right of ownership
is the sale contract.
Here, certain specific features of donation should briefly be examined.
A donation under Bulgarian civil law is considered a unilateral, gratuitous contract. In contrast to other contracts that transfer ownership, the
contract of donation of movable property requires written form with notary validation of the signatures, or delivery to the donee (art. 225, p. 2
OblCA). Another particularity of donation is represented by the restriction prohibiting a contract of donation of future property and prohibiting
a preliminary contract197 in order to conclude a final contract later. Such
contracts are void (art. 226, p. 1, 2).
5.5.2. Unilateral acts
Other juridical acts that can transfer ownership are unilateral acts. They
include will and legacy. A legacy that attempts to transfer specific property
of the legator’s patrimonium is void, if at the commencement of the estate
the property is not to be found in the estate of the deceased (art. 19, p. 1
LSA). In contrast to specific property, generic property that is the object of
a legacy and that can not been found at this point is nonetheless considered
valid (art. 19, p. 2 LSA).
196
197
See Goleva (fn. 169), p. 292.
The possibility to conclude a preliminary contract by the later conclusion of a gratuitous contract, is restricted by art. 226, p. 1 OblCA; see Takov, Chr., Predvaritelni
dogovori-nyakoi neizyasneni aspekti, Turgovsko pravo, 1 / 2004, p. 32-62.
415
5.5.3. Acquisition of ownership by a judicial act (court order)
Property may also be acquired by virtue of a constitutive judicial decision. Within the context of transfer of movables,198 these are: the decision
to declare a preliminary contract as subsequently concluded (art. 19, p. 3
OblCA) and the decision to grant movable property, intended for the education and care of children, to one of the spouses (art. 28, p. 2 FC).
The action to declare a preliminary contract as concluded is one special
way of acquiring ownership of property. The court decision substitutes a
final agreement between the parties and directly transfers the ownership
of the property that is the subject of the preliminary contract (art. 19, p. 2
OblCA).199
The second action that can lead to a court order that serves as title to
acquire ownership, concerns property that was co-owned by spouses by
virtue of marriage, and that at the moment of the divorce was intended for
the education and care of the children (art. 28, p. 2 FC). This claim can
be raised one year after the custody over the children has been awarded.200
5.5.4. Validity of the obligation and its effects
As earlier examined, the derivative mode of acquisition presupposes the
existence of a valid judicial act that can transfer the right of ownership to
the transferee. The derivative character of the contractual acquisition has
the following consequence: if the transferee acquires ownership and the
transfer is avoided, this will lead to the voiding of the title of the transferee.
The applicability of this principle, also called resolute iure dantis resolvitur ius
accipientis, is essentially restricted under Bulgarian law by the possibility to
acquire ownership over movables through the original mode of possession
in good faith.
The different defects of the legal transaction that can affect the retroactive effect of the transfer of ownership should be briefly mentioned here.
198
199
200
Within the context of immovable property, there are two other kinds of court decisions that could transfer ownership in a derivative way. The first of these deals with
the acquisition of ownership of immovable property, by buying back the share of a
co-owner that has been sold without having been offered to the other claimant-coowner (art. 33, p. 2 OA). The second constitutive court decision represents a claim
to provide a share of the inheritance of immovable property (art. 349 CPC).
Stalev (fn. 38), p. 618 et seq.
See also Nenova, L., Semeyno pravo na Republika Bulgaria, Sofia 1994, p. 219.
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416
(a)
Void contracts
Void legal transactions suffer from severe defects and do not have the legal
effect that is intended by the parties. The grounds for such nullity are:
infringement or circumvention of the law; violation of bonos mores; the
object of the agreement is a future inheritance; the contract has an impossible objective; lack of consent; lack of form prescribed by law; lack of a
causa; and a simulated contract (art. 26, p. 1, 2 OblCA).
The void transaction does not produce any legal effects, and therefore
anyone may rely on the defect of the legal transaction. Void juridical acts
can not be cured so as to result in a valid title of transfer of ownership.
The nullity of a void contract does not need to be declared by a court
in order to lack any legal effects.
(b)
Voidable transactions
Voidable transactions (art. 27-33 OblCA) are valid until the person entitled
to claim the avoidance of the transaction raises the claim. After claiming
avoidance, the transfer of title shall be regarded as extinguished by the retroactive effect of the avoidance ex tunc (art. 34 OblCA). Grounds for the
avoidance of legal transactions include: lack of capacity of a contracting
party, fraud, mistake, threat and unfair exploitation. The right to claim the
avoidance is precluded after a period of three years (art. 32, p. 2 OblCA).
Here only two grounds of avoidance will be examined: lack of capacity
of a contracting party and mistake.
Article 27 OblCA provides that contracts concluded by persons who
are incapable, or concluded by their legal representative but counter to
the requirements of law, are voidable. This rule is applicable only to legal
transactions that are not sanctioned by art. 73, p. 3 FC, which declares all
gratuitous contracts of a incapable minor person, such as donation, loan
for use, or security, are void.
The mistake is another ground of voidance of a legal transaction. According to art. 28, p. 1 OblCA, mistake can be a wrong comprehension of
the circumstances.201 A distinction must be made between mistake with
regard to the object of the legal transaction and mistake with regard to the
person of the contractual party. The former mistake may refer to characteristics of the object of the transaction, e.g. the material from which the
goods are made. The mistake may also refer to the legal characteristics of
the object of the transaction, e.g. as to which restrictions are foreseen for
the construction work on the real estate etc.
201
See Pavlova (fn. 2), p. 168.
417
A mistake regarding the personal characteristics of the co-contractual
party is only a ground for voidance of the legal translation if the personal
characteristics of the co-contractual party were of significant importance
for the conclusion of the contract. The typical case involves a person who
at conclusion of a service contract placed importance in the special abilities
of the other contracting person, such as a doctor, lawyer etc., and mistook
the other contracting party as having these abilities.
However, such matters as the solvency of the other contractual party
can not be regarded as grounds for claiming the voidance of the legal transaction.202 A mistake of calculation is also not a ground for avoidance, but
may serve as a ground to correct the mistake (art. 28, p. 2 OblCA).
(c)
Termination of a contract
Under Bulgarian law, a bilateral contract203 may be terminated as a result
of the non-performance of a contractual party. There are two basic requirements for termination: 1) termination can be exercised only as a last legal
remedy,204 therefore the terminating party has to give fixed additional time
to the other party to perform, 2) the termination must be exercised by
the terminating party through notice addressed to the debtor (art. 87, p. 3
OblCA). The only exception to these requirements for a non-judiciary termination concerns contracts that have transferred, established or precluded
a property right in an immovable (art. 87, p. 3 OblCA).
The legal effect of termination is retroactive (art. 88, p.1 OblCA).
However, this is not the case if the terminated contract was a long-term
contract or a contract of periodic performance.
The retroactive effect has the consequence that the parties have to
return everything that they received in conjunction with the contract.
The legal ground to retrieve the performed money or property is a claim of
condictio indebiti (art. 55, p. 1 OblCA). As to whether a party shall retrieve
the property, the restitution rule of art. 57 OblCA is applicable.
If the termination has to be proclaimed by a court, the restitution of the
property can not be awarded by the court ex officio, but only upon application therefor by one of the parties.205
202
203
204
205
For further details on the non-termination of the agency on this ground, Takov, Chr.,
Dobrovolnoto predstavitelstvo, Sofia 2006, p. 418.
Unilateral contracts such as donation may not be terminated, cf. Decision
nr. 1267 / 99 of the Supreme Court of Cassation, 2nd civ.ch.
See Interpretative Decree nr. 3 / 1973 of the Supreme Court, Plenum.
Decision nr. 65 / 81 of the Supreme Court, General Assembly of the civil chambers.
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418
(d)
Retroactive effect of the resolutive condition
The contractual parties are free to make their legal relationship subject to
a resolutive condition (art. 25, p. 1 OblCA). An example of this legal situation is the typical case where a person makes a donation (e.g. pair of very
expensive golden earrings) under the resolutive condition that, if the donee
does not marry the son of the donor, the contract shall be terminated.206 If
the condition is triggered (the woman does not marry the son of the donor),
the title of ownership shall be regarded as terminated due to the retroactive
effect of the triggered resolutive condition (art. 25, p. 2 OblCA).
5.6.
Registration
Certain kinds of movable property, such as ships, aircrafts and cars, are
subject to specific registration regimes, which can influence the form of the
legal transaction and the transfer of certain proprietary rights. Thus, this
has to be considered at this point.
5.6.1. Registration of vessels
The registration of vessels has no effect on the transfer of the right of ownership of a ship. The registration of the ownership has only a declarative
nature. However, art. 47, p. 1 MSC provides that the transfer of ownership
of a vessel, or a vessel under construction, may only be opposed against
third parties after registration in the ship register.
It is sufficient for the acquisition of the right of ownership of a ship if
the juridical act that transfers the ownership of the vessel fulfils the form
requirements posed by law. With regards to ships, the requested form is
notary validation of the signatures (art. 46, p. 1 MSC).
This is not the effect with regard to ship mortgages. The establishment
of the mortgage and the following registration has a constitutive legal effect
(art. 47, p. 2 MSC). The ship register is a public register.207 It is kept by the
state Agency “See Administration”.
206
207
The example is taken from Decision nr. 1212 / 1994 of the Supreme Court, 4th civ.
ch.
See Statutory instrument nr. 1 from 10.1.2003 about the Registrations in the ship
register, OJ nr. 7 from 24.1.2003, latest amendment OJ nr. 91 from 10.11.2006.
6. “Selling in a chain”
419
5.6.2. Registration of aircrafts
Similar to the registration of ships, the registration of aircrafts has no
constitutive effect on the transfer of ownership. Furthermore, the form
requirements for the transfer of aircrafts are even lower. The juridical act
that transfers the ownership of the aircraft is to be merely in written form
(art. 23, p. 1 CAA).
As with ships, the acquisition of the ownership is opposable against
third persons only if the transfer has been registered in the aircraft register
(art. 23, p. 2 CAA). Just like the establishment of a ship-mortgage on a
vessel, the registration of the aircraft-mortgage is required in order to have
a legal effect (art. 23, p. 4 CAA).
5.6.3. Registration of motor-vehicles
The regime of registration of cars in Bulgaria is not connected with the
transfer of ownership of other property rights, as opposed to some other
jurisdictions. The transfer of ownership of a registered motor-vehicle requires written form with notary verification of the signatures of the parties
(art. 144, p. 2 RTA). However, ownership may also be transferred by mere
written form regarding motor-vehicles that are not registered.
6.
“Selling in a chain”
“Selling in a chain” implies that seller A delivers goods directly to buyer C,
in accordance with his sale contract with B.
C shall acquire ownership of the goods simply by the conclusion of the
contract with B, if the goods already have been individualized (art. 24, p. 1
OblCA). If the object of the sale contract is generic goods, the transfer
of the right of ownership and the risk will take place in connection with
the individualization or delivery of the property to a forwarder or a carrier
(art. 24, p. 2 OblCA).
If the contract between A and B is void, has been voided by one of the
parties, or terminated ex tunc, the principle resoluto iure dantis resolvitur ius
accipientis will merely have a restricted application due to the legal effects
of art. 78 OA. A has only a condictio indebiti claim under art. 55, p. 1, alt. 2,
against the buyer B.
In event that the legal transaction B-C was void, became voidable, or
has been terminated by one of the parties, B can reclaim the property sold
either through the condictio indebiti claim, or by virtue of vindication.
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420
In the situation where both contracts are void, voidable or terminated
due to the non-performance of the parties (art. 87, p. 1 OblCA), A can
reclaim the property directly with the help of a vindication claim. Another
possibility is condictio indebiti claims between A-B and B-C.
Regarding the fact that A, as owner of the property, could vindicate
it from C, there is no possibility for A to raise an unjustified enrichment
claim directly against C under art. 59, p.1 OblCA (the general unjustified
enrichment claim). This is the result of the established principle of unjustified enrichment in Bulgarian law that the “disenriched” person can claim,
under art. 59, p. 1 OblCA, only if there is no other legal remedy against
the person enriched. The rule of art. 59, p. 2 OblCA is more popular as a
“principle of subsidiarity of the general unjustified enrichment claim”.
7.
Transfer of acquisition by means of
indirect representation
The question as to when property is acquired by the indirectly represented
person is by most scholars regarded as the same moment when the indirect
representative concludes the contract with the third person.208 Hence, the
majority of authors209 admit that the rights, which the indirect representative has acquired from the third person, have to be regarded as rights of
the principal.
However, this point of view can not be fully supported by virtue of a simple analysis of the statutory texts. Art. 292, p. 2, s. 1 OblCA provides that
the rights and the obligations, which arise by virtue of a legal transaction
between the indirect representative and the third party, have direct effect
for the indirect representative if the representative acts in his own name.
The same applies under art. 349, p. 1 of the Commercial Act. Hence, the
rights of the representative have to be transferred by another separate legal
transaction to the principal, in order to be exercised against third persons
(with regards to commission agency contracts, see art. 349, p. 4 CA).
However, the majority of legal scholars210 accept the view that the principal can (with exceptions under art. 349, p. 4 CA) acquire the property
directly from the third party, e.g. in case of a mandate between the representative and the principal.
208
209
Against this opinion is the text of art. 292, p. 2 OblCA, by which it has to be
understood that there is a necessity of a transferring legal transaction between the
represented person and the indirect represent, see Takov, Chr. Personalnata simulaziya-vidove, hipotezi, sravnenie s drugi pravni figure, Yuridicheski svyat, 2 / 2005,
p. 1-28 (cited after the online edition of the article).
See Kassabova, K., Turgovski predstavitel, Sofia 2005, p. 141 et seq.
7. Transfer of acquisition by means of indirect representation
421
The rights of the principal are protected against the creditors of the
indirect representative under art. 292, p. 2, s. 2 OblCA, which provides
that the rights of the principal can be opposed against creditors of the
representative in good faith if the contract of the mandate has a verified
date. This principle also applies without restriction to the creditors of the
commission agent (art. 349, p. 2 CA).
This protection of the interests of the principal can not be understood as
a principle of complete transfer of the rights that the indirect representative
acquired by virtue of the legal transactions with the third party. More or
less the protection granted in this case is focused on certain legal relationships between the principle and the indirect representative, or between the
principle and some third persons. Put another way, the protection granted
by the law in this situation can not be classified as a full, absolute protection
awarded within the effect of direct acquisition of property rights, but a partial and a relative protection against certain third-persons as the creditors
of the indirect representative.
The rights acquired by the indirect representative on behalf of the principal may, with regards to an agency enterprise, be exercised by the principle only if the indirect representative has already transferred the rights to
the principal. If not, they are still to be regarded as rights of the indirect
representative. For example, if the contract of agency has no verified date
it can not be opposed against creditors in good faith of the indirect representative (arg. from art. 292, p. 2, s. 3 OblCA).
The complexity and the contradictory nature of this issue support an
argument for the ad hoc proprietary effect of the conclusion of the legal
transaction with the third person regarding the patrimonium of the principal.
The first argument for the lack of necessity for the indirect representative to transfer the rights to the principle considers a problem of Bulgarian
tax law, which will not be discussed here but which relates to the taxation
of both legal transactions. Legal scholars211 are concerned with the double taxation of the transactions, between the representative and the third
party, and between the representative and the principal. Notwithstanding
the substance of this argument, it is not at the centre of a civil law discussion. As mentioned above (the electricity example), it is often inappropriate
to try to solve problems in other legal areas with the instruments of private
law.
210
210
211
Vassilev (fn. 45), p. 378, Venedikov (fn. 20), p. 157. The jurisprudence is quite controversial on this topic; against this point of view, see Decision of the Appeal Court
Sofia in civ. m. 1763 / 2002.
See Kassabova, (fn. 209), p. 141.
Bulgaria
422
The second argument refers to the notion that the principal should be
protected in any case against third persons, when the indirect representative alienated the acquired movable property by transferring it to another
person. The principal, as an “owner ex lege”, has to prove that these persons were not in good faith at the time of the acquisition of possession of
the property. In this case, the owner of the property should be protected
by granting him the possibility to vindicate from persons who are in bad
faith.212
However, the legal regulation of the mandate contract can not lead to
the conclusion that the legal transaction with the third party automatically
affects the acquisition of ownership of the property by the principal. This
is not the policy decision covered by art. 292, p.2, s. 3 OblCA. Bulgarian
civil law states clearly that in case of a non-verified date of the contract of
mandate, it can not be opposed against third persons in good faith.
8.
Insolvency of the transferor or transferee
8.1.
General issues
8.1.1. Termination of contracts by the insolvency administrator
The issues of insolvency proceedings are regulated in Part IV of The Commercial Act.
Regarding the specific position of the debtor in insolvency proceedings, the insolvency administrator can exercise the right to terminate each
contract of the insolvent debtor that has not been fulfilled or has been
fulfilled only partially (art. 644, p. 1 CA). This termination right of the
insolvency administrator concerns all kinds of contracts concluded by the
debtor, such as commission contracts, commercial sale contracts, rental
agreements etc.
The termination of the contract occurs without bringing a claim, merely
by notice of the insolvency administrator to the contractu

National Reports on the Transfer of Movables in Europe: Volume 4

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