National Reports on the Transfer of Movables in Europe: Volume 6

Transcription

© sellier. european law publishers
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National Reports on the
Transfer of Movables in Europe
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National Reports on the
Transfer of Movables in Europe
Volume 6:
The Netherlands, Switzerland, Czech Republic,
Slovakia, Malta, Latvia
edited by
Wolfgang Faber / Brigitta Lurger
Schriften zur Europäischen Rechtswissenschaft /
European Legal Studies / Etudes juridiques européennes
Band 15 / Volume 15 / Volume 15
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
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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
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:
Bundesministerium für Wissenschaft und Forschung (Vienna);
Bundesministerium für Justiz (Vienna);
Swiss Institute of Comparative Law (Lausanne);
Land Salzburg;
Evers-Marcic-Stiftung an der Rechtswissenschaftlichen Fakultät der
Universität Salzburg.
ISBN (print) 978-3-86653-137-6
ISBN (eBook) 978-3-86653-923-5
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
retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the publisher.
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.0
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Preface
This is the sixth and last volume of a series of national reports on basic
issues concerning the acquisition and loss of ownership of movable assets.
The full series covers 28 European legal systems 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
Arthur Salomons’ report on Dutch law is an updated and greatly extended version of a national report already published at an earlier stage
of this project;4 we are grateful to Peter Lang Publishers for making this
updated publication possible. We also wish to express special thanks to our
authors Patrick J Galea, Theis Klauberg and Julija Kolomijceva, who joined
the project at a very late stage and helped us to provide information on the
1
2
3
4
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.
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).
Salomons, Transfer of Title Concerning Movables Part IV, National Report: The
Netherlands (2006).
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Preface
VI
transfer systems in Malta and Latvia, which otherwise would not have been
covered. Due to the specific time pressure these authors were faced, these
reports are a bit shorter, but the authors managed to provide much more
than the most central information.
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 Austrian Ministry of Science and Research (Bundesministerium für Wissenschaft und Forschung), the Austrian Ministry of Justice (Bundesministerium für Justiz), the Swiss Institute of Comparative
Law (Lausanne), the Land Salzburg and the Evers-Marcic-Stiftung an der
Rechtswissenschaftlichen 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. Particular thanks go to Susan-Gale Wintermuth who, again, bestowed great care in linguistically improving all reports and harmonising
the terminology used.
May 2010
Salzburg and Graz
Wolfgang Faber
Brigitta Lurger
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List of Contributors
Bénédict Foëx
Professor at the University of Geneva
Patrick J Galea
Practicing Advocate in Malta and Lecturer in civil law and
civil procedure at the University of Malta
Theis Klauberg
Attorney at law with bnt attorneys-at-law, Riga, Latvia;
visiting lecturer at Riga Graduate School of Law
Julija Kolomijceva
Lawyer with bnt attorneys-at-law, Riga, Latvia
Sylvain Marchand
Professor at the University of Geneva
Ivan Petkov
Attorney at law, formerly researcher at the University of Trnava
Arthur F Salomons
Professor of Private Law, Centre for the Study of
European Contract Law, University of Amsterdam
Luboš Tichý
Professor in Law, Head of Centre for Comparative Law,
Faculty of Law, Charles University in Prague
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Contents
Preface
v
List of Contributors
vii
National Report on the Transfer of Ownership of Movables
in The Netherlands
Arthur F. Salomons
1
National Report on the Transfer of Movables
in Switzerland
Bénédict Foëx / Sylvain Marchand
159
in the Czech Republic
Luboš Tichý
255
in Slovakia
Ivan Petkov
351
in Malta
Patrick J. Galea
451
in Latvia
Theis Klauberg / Julija Kolomijceva
547
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National Report on the Transfer of Ownership
of Movables in The Netherlands
Arthur F. Salomons
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Table of Contents
Part I:
Basic information on property law
1. Notion of ownership and other property rights
1.1. Sedes materiae
1.2. General basics
1.2.1. Publicity
(a) Movables
(b) Assignment of claims
1.2.2. Exclusivity
1.2.3. Priority
1.2.4. Droit de suite
1.2.5. Absolutism
1.2.6. Protection of good faith
1.3. Notion of ownership
1.3.1. The right to use the object
1.3.2. The right to revindicate the object
1.3.3. The right to dispose of the object
1.4. Restrictions on ownership
1.4.1. Restrictions regarding the use of the object
1.4.2. Restrictions regarding revindication
1.4.3. Restrictions regarding the right to dispose
of the object
1.5. Other property rights in movables
1.6. Protection of ownership and other property rights
1.6.1. Revindication
(a) Revindication by a non-owner
(b) Revindication from the possessor
1.6.2. Declaratory judgment
1.6.3. Tort (injunction, damages)
1.6.4. Unjustified enrichment
1.7. Transferability of movables
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10
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14
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18
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24
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25
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27
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28
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2. Possession
2.1. Possession and detention
2.1.1. The criterion “detaining property for oneself”
2.1.2. Legal capacity required?
2.1.3. Mediate and immediate possession and
detention
2.1.4. Possessor (not) in good faith
2.2. Functions of possession
2.2.1. Defensive function
2.2.2. Procedural function
2.2.3. Acquisitive function
(a) Occupation
(b) Prescription
(c) Transfer
(d) Fruits
2.2.4. Liability function
2.2.5. Compensation function
2.3. Acquisition of possession
2.3.1. Taking possession (occupatio)
2.3.2. Transfer of possession
(a) Corporeal transfer of possession
(b) Transfer of possession by bilateral
declaration
2.3.3. Succession by general title
2.4. Protection of possession
2.5. Self-help
3. Personal right and proprietary protection
3.1. Introduction
3.2. Proprietary position, financial lessee or buyer,
in case of title reservation?
3.3. ‘Vormerkung’ with regard to registered property
3.4. Indirect representation
4. Field of application and definitions
4.1. Field of application
4.2. Definitions
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36
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Part II:
Derivative acquisition
5. Which system of transfer is used?
5.1. Basic characteristics
5.1.1. Unititular concept of the transfer of ownership
5.1.2. The same transfer rules applicable to
all kinds of obligations
5.1.3. Basic transfer requirements
(a) Valid title
(b) Right to dispose (including good faith
acquisition and regularization)
(c) Delivery
5.2. Categorization of transfer system
5.2.1. Causal or abstract?
5.2.2. Consensual or traditio system?
5.2.3. Requirement of payment?
5.3. Valid obligation
5.3.1. Obligations on which transfer can be based
5.3.2. Defects regarding obligation and effects on
transfer
(a) Void or annulled titles
(b) Obligations that do not constitute valid
titles for transfer
(c) Termination of a contract
5.4. Delivery
5.4.1. Dogmatic basis
5.4.2. Forms of delivery
(a) Movables within the control of the
transferor
(i) Actual delivery
(ii) Fictitious delivery
(b) Movables not within the control of the
transferor
(c) Movable registered objects
5.5. Registration
5.6. Real agreement
5.7. Payment – right of recovery of seller
6. Double selling
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60
61
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7. Selling in a chain
7.1. Combined title
7.2. Defects in either of the two relationships
7.3. Acquisition through another (e.g. indirect agency)
8. Insolvency of the transferor or acquirer
8.1. Contracts and bankruptcy
8.2. Actio pauliana (in bankruptcy)
8.3. Insolvency of transferor
8.3.1. Bankruptcy between sale and delivery
8.3.2. Bankruptcy after transfer under suspensive
condition
8.3.3. Position of the transferee in case of
invalidity of sale
8.4. Insolvency of the transferee
9. Passing of risk and proprietary interests
9.1. Transfer of movables and passing of risk
9.2. Passing of various interests in property
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90
90
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93
95
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Part III:
Original acquisition
10. Accession, confusion and specification
10.1. Terminology: component part and principal movable
10.2. Accession of movables
10.3. Confusion
10.4. Specification
10.5. Accession of movables by land
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101
102
104
11. Good faith acquisition a non domino
11.2. Acquisition for value
11.3. Possession or physical control by transferor required?
11.4. Acquisition of physical control by transferee required?
11.5. Specific requirements regarding transferor?
11.6. Good faith
11.7. Right to buy movable back from a good faith acquirer?
11.8. Acquisition of a movable encumbered with a limited right
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107
108
109
110
110
112
113
115
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12. Acquisitive prescription of movable property
12.1. Requirements for acquisitive prescription
12.2. “Thief becomes owner”: liberative prescription
with acquisitive effect
116
119
13. Other forms of original acquisition
13.1. Finding
13.2. Occupation
13.3. Separation
13.4. Treasures
121
124
124
125
14. Reservation of title
14.1. Ownership or security right?
14.2. For which claims?
14.3. The transferor’s and acquirer’s right to dispose
14.4. Extended reservation of title
14.5. Extinction of title reservation
129
130
130
131
132
Part IV:
Varia
15. Unspecified property
134
16. Abandonment
135
17. Community property
17.1. Sedes materiae
17.2. Communities; classification
17.3. Community; the right to dispose
136
137
138
18. Consequences of restitution to the owner
18.1. Entitlement to benefits (‘fruits’) of the movable
18.2. Loss and deterioration of a movable
18.3. Improvements and expenses during possession
18.4. Possessor’s right to retain a movable
18.5. Expenses to obtain restitution
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144
145
146
Table of Literature
149
Table of Abbreviations
157
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Part I:
1.
Notion of ownership and other property rights
1.1.
Sedes materiae
The rules regarding property law are to be found in Books 3 and 5 of the
Burgerlijk Wetboek, both of which were enacted in the year 1992, when the
central part of a new Civil Code (in Dutch: Burgerlijk Wetboek, henceforward to be abbreviated as: BW) was enacted.1
The BW (or at least the part that deals with patrimonial law, Book
3-8) is characterized by a hierarchical structure, both between the Books
and within each Book, from general to specific (“layered structure”). This
explains why the rules on transfer in general are found in Book 3, while
ownership is dealt with in Book 5: a transfer applies to all kinds of property
(in Dutch: goederen, which comprises both patrimonial rights and corporeal things,2 see art. 3:1 BW), while the notion of ownership is restricted
to things (corporeal objects; in German: Sachen; in Dutch: zaken; see for a
definition, art. 3:2 BW).3 The rules on limited rights that can only apply to
things are also to be found in Book 5 (servitudes, emphyteusis [or long-term
lease], the right of superficies and apartment rights), while the limited rights
1
2
3
Book 1 (Law of Persons and Family Law) was introduced in 1970, Book 2 (Legal
Persons) in 1976, Book 8 (Law of transport) in 1991, Book 3 (Patrimonial law in
general), Book 5 (Real Rights), Book 6 (General part of the law of obligations) and
Title 7.1 (Sale and exchange) in 1992, Book 4 (Law of Succession) in 2003. Since
1992, several Titles of Book 7 (Special Contracts) have been introduced, but the
project is not yet completed. The Travaux préparatoires (in Dutch: Parlementaire
geschiedenis) have been published by Kluwer Publishers in Deventer; We will refer
to these by Parl.Gesch., followed by the number of the Book of the BW.
The term “things”, albeit somewhat ineloquent, has been deliberately chosen for the
translation of the Dutch term “Zaken”; it comes closest to the sense of the Dutch
word. It is, however, used herein interchangeably with the terms “movable” and
“object”.
The Dutch term goederen covers movable and immovable tangible objects (in Dutch:
zaken) and personal and real rights that represent a certain monetary value (in
Dutch: vermogensrechten). Art. 3:1 BW provides: ‘Property (in Dutch: goederen) is
comprised of all things and of all patrimonial rights.’ Art. 3:2 BW: ‘Things’ (zaken)
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that can apply to all property (again: both things and patrimonial rights)
are dealt with in Book 3. Book 5 is titled Real Rights, Book 3 Patrimonial
Law in General.
1.2.
General basics
Dutch patrimonial law (as is the case in most, if not all, European countries)
is subdivided into property law, inheritance law and the law of obligations.
The distinction between proprietary rights (rights in rem) and personal
rights (obligations, rights in personam) was established by a famous ruling of
the Dutch Supreme Court, the Hoge Raad der Nederlanden (henceforward:
Hoge Raad, abbreviated as HR) from 1905.4
In this case, the Hoge Raad ruled that contractual obligations with regard to an immovable (in this case the obligation to construct a road on
one’s land) do not bind the person to whom the immovable is sold and
transferred; after this transfer, the person obliged to perform is the one who
has entered into the contract, not the new landowner.5 From 1905 onwards,
therefore, Dutch patrimonial law has been characterized by a sharp division
between rights in rem with absolute effect (including droit de suite), and
personal obligations, which bind only the original parties involved. In later
developments the distinction has lost its initial sharpness via the introduction of new exceptions,6 but as a basic rule it still remains valid.7
4
5
6
are corporeal objects susceptible of human control.’ Art. 3:6 BW: ‘Patrimonial rights
(vermogensrechten) are those that, either separately or together with another right,
are transferable; rights intended to procure a material benefit for their holder; or
rights acquired in exchange for actual or expected material benefit.’ See J.C. van der
Steur, Grenzen van rechtsobjecten. Een onderzoek naar de grenzen van objecten van eigendomsrechten en intellectuele eigendomsrechten. Serie Recht en Praktijk 124 (Thesis;
Kluwer: Deventer 2003) and Th. F. de Jong, De structuur van het goederenrecht. Over
het afschaffen van het begrip van de onlichamelijke zaak, het onderscheid tussen rechten en
hun voorwerpen en een opening in het systeem (Thesis; Groningen 2006).
HR 3-3-1905, W. 1905, no. 8191 (Blaauboer-Berlips).
As the new landowner is not obliged to perform, and the former landowner is no
longer able to perform, the original performance (to construct a road) will be converted into an obligation to pay damages.
The most noteworthy of these is to be found in art. 6:252 BW, which rules that a
contract may stipulate that the obligation of one of the parties to tolerate or not to
do something in respect to his registered property will be transferred to the persons
who will acquire the property by way of particular title, and that the stipulation may
also bind those who will acquire a right to use the property from the title-holder. For
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7
A further characteristic of Dutch property law is its adherence to the
principle of a numerus clausus of property rights.8 The numerus clausus rule
can be found in art. 3:81 § 1 BW (note the words “recognized by law”):9
A person who is entitled to an independent and transferable right, may, within
the limits of that right, establish the limited rights recognized by law. He may
also transfer his right subject to such a limited right, provided that he respects
the rules pertaining to both the transfer of such property and the establishment
of such a limited right.
We will return to this provision below (in § 1.3 under c and § 1.4.3). Nevertheless, its importance should not be exaggerated. Even if it – correctly –
provides that Dutch property law does not acknowledge absolute rights
other than ownership and the limited rights that have found their way into
the BW, the Dutch patrimonial law enacted in 1992 is characterized by a
fundamental openness:10 there is room for (the acknowledgement of rights
in) new legal concepts as long as they meet two criteria: they have to fit
into the system of law and be in keeping with the rights that are recognized
by law. In this light, Dutch property law should not be described as ‘closed’
but as ‘half open’.11
Besides the numerus clausus rule, there are several other general principles of Dutch property law. We will distinguish six of them (publicity,
exclusivity, priority, droit de suite, absolutism, protection of good faith).
7
8
9
10
11
this stipulation to have effect, a deed must be drawn up, by a notary, of the contract
between the parties, followed by its entry in the public registers.
See E.B. Rank-Berenschot, Over de scheidslijn tussen goederen- en verbintenissenrecht
(Thesis; Kluwer: Deventer 1992) for a thorough analysis of the distinction.
See on the scope and importance of this principle in Dutch property law, above
all, the recent, lengthy Phd-thesis by T.H.D. Struycken, De numerus clausus in het
goederenrecht. Serie Onderneming en Recht 37 (Thesis; Kluwer: Deventer 2007).
See for a translation to English and French of the Dutch Civil Code of 1992, P.P.C.
Haanappel and E. MacKaay, Nieuw Nederlands Burgerlijk Wetboek. Het vermogensrecht
(Kluwer law and Taxation Publishers: Deventer, Boston 1990).
This view was introduced by the authoritative W. Snijders, until 1998 vice president
of the Dutch Supreme Court and until 1995 Government Commissioner appointed
to complete the new Burgerlijk Wetboek.
See in particular W. Snijders, De openheid van het vermogensrecht. Van syndicaatszekerheden, domeinnamen en nieuwe contractsvormen, in: Onderneming en 10 jaar
nieuw Burgerlijk Recht (Kluwer: Deventer 2002), p. 27-58.
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1.2.1. Publicity
Of vital importance is the principle of publicity.12 As property rights have
absolute effect (see below), they must be “noticeable”. The importance
of publicity is best demonstrated in the provisions regarding transfer of
movables (one could even say that for most categories of property). The
requirement of publicity focuses not on the question whether one owns a
certain object, but on the question whether one has acquired the object.
The only exception is registered property, of which third persons can
at any time find out not only by whom and to whom the object was transferred in the past, but also who is the present owner of the object. It should
be noted, however, that an entry in the public registers is not correct ipso
facto; it may turn out at a later stage that a transfer published in the public
registers in the right manner was invalid after all, e.g. because of annulment
of the title of transfer.
Publicity concerning transfer will be dealt with below in greater detail,
when the different forms of transfer are described. Two examples may suffice here:
(a)
Movables
Movables are to be delivered by giving possession thereof to the acquirer
(art. 3:90 § 1 BW). This can be done sine manu13 (art. 3:115 under a-c;
constitutum possessorium, brevi manu, longa manu), but when the alienator
and acquirer choose delivery through constitutum possessorium, they have to
take into account that our legislator has “discriminated” against this form
of delivery in two ways:
(i) A delivery by constitutum possessorium can only be performed by a
possessor, not by a detentor. This follows from the fact that art. 3:115 BW
speaks of “transfer” of possession; only a possessor is capable of a transfer of
possession, whereas a detentor can only give possession (see art. 90 § 1 BW).
The rule can also be deduced from art. 3:111 BW:
A person who has begun detention for another pursuant to a juridical relationship continues to do so under the same title, so long as no change is apparent
12
13
See H.J. Snijders and E.B. Rank-Berenschot, Goederenrecht. Studiereeks burgerlijk
recht 2 (4th ed., Kluwer: Deventer 2007) (henceforward referred to as: Snijders /
Rank-Berenschot, Goederenrecht), nos. 80 and 81.
See W.H.M. Reehuis and A.H.T. Heisterkamp, Mr. A. Pitlo. Het Nederlands burgerlijk
recht 3. Goederenrecht (12th ed., Kluwer: Deventer 2006) (henceforward referred to
as: Pitlo / Reehuis, Heisterkamp, Goederenrecht), nos. 226-242.
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in his title that results either from an act by the person for whom he holds or
from the latter’s right having been contested.
This provision is an adaptation of the well-known maxim sibi causam possessionis mutare potest (Dig. 41.V.2.1).
(ii) Art. 3:90 § 2 BW provides:
Delivery of a thing that remains in the hands of the alienator has no effect with
respect to a third person who has a prior right to the thing, until the time when
the thing has come into the hands of the acquirer, unless the third person has
consented to the alienation.
The effect of this provision is that delivery by constitutum possessorium (obviously: by a possessor, as a detentor cannot deliver by constitutum possessorium at all) does not have any effect on the owner, other title-holders (with
a limited property right like usufruct) and creditors with preferential debts,
as long as the object has not yet come into the hands of the acquirer.
These two rules combined (artt. 3:111 and 3:90 § 2 BW) have the purpose and effect of distinguishing delivery by constitutum possessorium, exactly because this form of delivery lacks publicity. To put it differently: with regard to movables, Dutch property law favours publicized transfer over nonpublicized transfer. It does not, however, prohibit non-publicized transfer: it
acknowledges that delivery by constitutum possessorium cannot be missed for
economic reasons. For the same reason, in 2004 the possibility of assigning
claims without notification to the debtor was introduced; see below.
(b)
Assignment of claims
Assignment of claims14 also requires some form of publicity, as follows from
art. 3:94 § 1 BW:
In cases other than those provided in the preceding article, rights to be exercised against one or more specifically determined persons are delivered by means
of a deed intended for that purpose and notice thereof given by the alienator
or acquirer to those persons.
Notification of the debtor is an essential element of the assignment: the
transfer does not take effect until the notification is performed.
This requirement, however, is controversial, and in October 2004 (because of the unexpected advance of factoring and securitization) a new
14
Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 255-290.
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(third) paragraph has been added to art. 3:94 BW in which an alternative
form of assignment is laid down. This new form of assignment (labelled
‘silent assignment’ in Dutch literature) does not require notification in
order to have proprietary effect: both an authentic deed and a registered
deed under private writing suffice to make the assignee the titleholder of
the claim. However, the silent assignment cannot be invoked against the
debtor of the claim until notification has taken place.
This is not the place to elaborate on this development in detail.15 For
our present purpose it is important to note that the introduction of ‘silent
assignment’ (as an alternative to ‘public assignment’) implies a concession
to the principle of publicity for the benefit of those involved in the new
financial instrument of securitization. See the principle of publicity also
below, § 5.4.1.
1.2.2. Exclusivity
Property rights are characterized by exclusivity,16 as can be demonstrated by
the provision regarding the right of the owner to use his property (art. 5:1
§ 2 BW):
To the exclusion of everybody else, the owner is free to use the thing provided
that this use not be in violation of the rights of others and that it respect the
limitations based upon statutory rules and rules of unwritten law.
The principle of exclusivity is expressed with the words “to the exclusion
of everybody else”. Most authors hold that exclusivity is not so much a
characteristic of ownership, but of all proprietary rights.17
15
16
17
See on this development, both in the Netherlands and in several other European
countries, A.F. Salomons, Deformalisation of Assignment Law and the position of
the debtor in European Property Law, European Review of Private Law 5-2007 [639657] (also published in: Pro forma? Essays on the role of Formal Rules and Formal
Requirements in Private Law. Bundel Amsterdams Instituut voor Privaatrecht 3 (A.F.
Salomons and G.J.P. de Vries eds.; Boom Juridische uitgevers: The Hague 2006),
275-291).
Snijders / Rank-Berenschot, Goederenrecht, nos. 34-35.
Author’s comment: I have challenged this view with regard to security rights (pledge
and hypothec), which in my opinion should not be considered as exclusive rights;
see A.F. Salomons, Exclusiviteit van eigendom: hoeveel solidariteit kan van een
eigenaar verwacht worden?, in: Privaatrecht tussen autonomie en solidariteit. Bundel
Amsterdams Instituut voor Privaatrecht 1 (M.W. Hesselink, C.E. du Perron and A.F.
Salomons eds.; Boom Juridische uitgevers: The Hague 2003), p. 241-260.
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1.2.3. Priority
In case of a collision between two property rights the issue is decided by the
principle of priority; the oldest property rightis stronger than the younger
one (droit de preference; prior tempore, potior iure). The principle of priority
can be regarded as a consequence of the nemo-plus rule.18
1.2.4. Droit de suite
Property rights are characterized by the notion of droit de suite: the titleholder is allowed to follow (suivre) and claim his property from whoever
holds that property without any title to it (e.g. a lease contract or a right
of usufruct). The same applies, mutatis mutandis, to the person entitled to a
limited right. Of course, priority and droit de suite are closely connected and
both principles are faced with the same limitations and exceptions.
1.2.5. Absolutism
Yet another way of describing the same phenomenon is found in the principle of absolutism: property rights have absolute effect (from the Latin
absolutus: dissolved, detached) and can be invoked against whomever is in
possession of the object.
1.2.6. Protection of good faith
The last three principles (priority, droit de suite, absolutism) are subject
to important exceptions. The principal exception is the protection of good
faith,19 which in itself can be regarded as a principle. The Dutch civil code
contains a well-elaborated set of provisions regarding this third party protection. The most important provisions – which will be dealt with below
in greater detail – are art. 3:86 BW (movables), art. 3:88 BW (immovables
and claims), art. 7:42 (movables, in case a seller exercises his right of recovery) and art. 3:36 BW (general protection of the third party acting in
good faith).
At this point, it suffices to say that this principle, protecting the acquirer
who did not know or ought to have known that the acquired object was
18
19
Nemo plus iuris ad alium transferre potest, quam ipse haberet (Dig. 50.17.54, Ulpianus)
(no one is able to transer more rights than he himself owns).
Pitlo / Reehuis, Heisterkamp, Goederenrecht, nos. 153-156.
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encumbered with the proprietary right of someone else, is closely connected
to the principle of publicity: there is no need and room for the protection
of someone who was able to learn of the proprietary right of another for
the reason that that right was “published” in the prescribed form. Cf. in
this context art. 3:11 BW:
Where good faith of a person is required to produce a juridical effect, such person is not acting in good faith if he knew the facts or the law to which his good
faith must relate or if, in the given circumstances, he should have known them.
Impossibility to inquire does not prevent the person, who had good reasons to
be in doubt, from being considered as someone who should have known the
facts or the law.
1.3.
Notion of ownership
As stated above, in Dutch property law only corporeal objects can be the object of ownership. This follows from the definition of ownership in art. 5:1
§ 1 BW:
Ownership is the most comprehensive right that a person can have in a thing
and the definition of things in art. 3:2 BW:
Things are corporeal objects susceptible of human control.
Furthermore, we see that only objects susceptible to human control can
be owned. Water in the sea and the air around us cannot be the object of
ownership, until it is put in, e.g., a jar or a bottle.
With regard to the rights connected to ownership, the Dutch legislator has rejected the (modern, primarily Anglo-American but rooted in
common law), “bundle of rights” theory in favour of the (ancient, continental) view that the notion of ownership is indefinite and, therefore, it
is impossible to enumerate all rights (powers, in Dutch: bevoegdheden) of
the owner.
Nevertheless, the three most important rights connected to ownership
have indeed been enumerated in the BW: the right to use the object, the
right to revindicate it, and the right to dispose of it:
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1.3.1. The right to use the object
The right to use the object (as well as the limitations to this right) is to be
found in art. 5:1 § 2 BW:
To the exclusion of everybody else, the owner is free to use the thing provided
that this use not be in violation of the rights of others and that it respect the
limitations based upon statutory rules and rules of unwritten law.
1.3.2. The right to revindicate the object
The right to revindicate the object is to be found in art. 5:2 BW:20
The owner of a thing is entitled to revindicate it from any person who detains
it without right.
This right ends, of course, as soon as the object is acquired by another
person, e.g. by prescription21 or by acquisition by a third-acquirer in good
faith.22
20
21
22
See P.C. van Es, De actio negatoria. Een studie naar de rechtsvorderlijke zijde van het
eigendomsrecht (Thesis; Leiden 2005), who argues that next to the revindication of
art. 5:2 BW a separate legal action is available to the owner against infringements on
his exclusive right to use his property, a so-called modern actio negatoria comparable
to the action of § 1004 (1) BGB in German law.
Art. 3:99 § 1 BW: Rights in movables that are not registered property and rights
under documents payable to bearer and order are acquired by a possessor in good
faith by uninterrupted possession for three years; other property is acquired by uninterrupted possession for ten years. The possessor in bad faith is also entitled to
acquisition through presciption, as follows from art. 3:105 § 1 BW: A person who
possesses property at the time of the completion of the prescription of the right of
action to terminate possession, acquires the property even if his possession was not
in good faith. As the revindication is prescribed in 20 years (see art. 3:306 BW),
the thief of a movable object becomes the owner of his loot in 20 years time. It
goes without saying that this new provision, seemingly without precedent in other
countries, is rather controversial among Dutch scholars. Below (in § 2.1.4, § 2.2.3.b,
§ 12 (especially § 12.2) and § 13.4), we will deal with this in more detail.
See for movables, art. 3:86 BW; for immovables and claims, art. 3:88 BW (see below,
§ 5.1.3).
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1.3.3. The right to dispose of the object
The right to dispose of the object (better: of his right with regard to the
object) is, in principle,23 the exclusive right of the owner. This, however, is
not explicitly laid down in the BW. Cf. art. 3:81 § 1, first sentence:
A person who is entitled to an independent and transferable right, may, within
the limits of that right, establish the limited rights recognized by law.
This provision states that the title-holder of an object is entitled to establish limited rights, but not to transfer the object entirely.
Relevant in this context is art. 3:83 BW, which mentions the transferability of ownership (without indicating who is entitled to such a transfer):
Ownership, limited rights and debts are transferable, unless this is precluded by
law or by the nature of the right.
Transferability does not necessarily imply the right to dispose of the object, as transferability relates to the object, whereas the right to dispose
thereof relates to the title-holder. We will return to this provision below,
in § 1.4.3.
1.4.
Restrictions on ownership
The right of ownership is in itself not limited or restricted. This can be explained by the fact that ownership is regarded as an indefinite right: there
are no limitations, until the owner starts exercising the rights that stem
from his right. Therefore, we have to focus on the restrictions attached to
the various rights of the owner, that is: restrictions regarding the use of the
thing (§ 1.4.1), regarding the right of revindication (§ 1.4.2), and regarding
the right to dispose of the thing (§ 1.4.3).
1.4.1. Restrictions regarding the use of the object
As we have seen, art. 5:1 § 2 BW provides that the owner is, to the exclusion of everybody else, free to use the thing provided that this use not be
in violation of the rights of others and that it respect the limitations based
upon statutory rules and rules of unwritten law.
23
We will not elaborate on the well-known exceptions of bankruptcy and attachment
here.
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In this provision, the right of the owner to use the thing is limited in
three ways:
(a) The owner is obliged to respect the rights of others. This refers in the
first place to the situation that the owner himself has established a limited
right (e.g. usufruct or pledge) or a personal right (e.g. lease) on the object
of his ownership.24 Furthermore, the owner is not entitled to interfere with
other rights or hinder their title-holders: a landowner should take the interests of neighbouring landowners into consideration and “may not cause
nuisance to owners of other properties to a degree or in a fashion that is
unlawful”; see art. 5:37 BW.
This provision is not relevant to the situation in which the thing is
transferred by the detentor to a third person and the latter is protected on
the basis of his good faith; if the object were a movable (e.g. a bike) sold by
its lessee, the acquirer in good faith would be protected by art. 3:86 § 1 BW
(assuming that the requirements of this provision are met). This protection
is “real”, which means that the acquirer of the bike becomes the owner instead of the former owner (the lessor). This implies that the former owner
is no longer entitled to use or to revindicate the bike.
(b) The owner is obliged to respect the limitations based upon statutory
rules. This refers both to provisions within the Burgerlijk Wetboek (e.g. the
aforementioned art. 5:37 BW, the prohibition of hindrance), and to provisions enacted by the national legislator outside the Burgerlijk Wetboek.
Furthermore, the rule encompasses provisions in “lower legislation”, e.g.
municipal or provincial ordinances. The relevant provisions usually deal
with – that is, limit – the free use of objects, whether it be by the owner
or not.
It must be stressed that, while ordinances may limit the free use of a
thing by its owner, it has been left to the courts to decide whether ordinances may provide rules that award the right to use a thing to someone
other than the owner (violation of the principle of exclusivity). Ordinances
cannot take away the right of the owner to use his thing altogether, nor can
they limit in any way the right of the owner to dispose of his thing.25
24
25
This relates to the right of revindication: when, for example, a bike has been leased
by the owner to a lessee for the period of six months and this period has not yet expired, the owner is obliged to honour this: he is not entitled to use the bike himself,
if this would violate the rights of the lessee (as will almost certainly be the case),
and he is not entitled to revindicate the bike (this follows from the provision that
revindication is only allowed from persons who detain the thing of an owner without
right; see below).
See on this subject R. Meijer, Het eerste van vijf; de exclusiviteit van Eigendom, in:
Liber Amicorum NBW. Opstellen aangeboden aan mr.drs. B.C. de Die (Gouda Quint:
Arnhem, Kluwer: Deventer, W.E.J. Tjeenk Willink: Zwolle 1991), p. 73-78, A.F.
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(c) Finally, the owner is obliged to respect the limitations based upon
rules of unwritten law.
In the first place, this refers to art. 6:162 BW, the general provision
on tort law, stating that a person who commits an unlawful act toward
another, which can be imputed to him, must repair the damage the other
person suffers as a consequence thereof (§ 1) and that the violation of a
rule of unwritten law pertaining to proper social conduct is deemed to be
unlawful (§ 2).
Secondly, it refers to art. 3:13 BW, the ‘prohibition of abuse of right’,
stating that the holder of a right may not exercise it to the extent that it is
abused (§ 1), and that instances of abuse of right are the exercise of a right
with the sole intention of harming another or for a purpose other than that
for which it was granted; or the exercise of a right where its holder could
not reasonably have decided to exercise it, given the disproportion between
the interest to exercise the right and the harm caused thereby (§ 2): this
provision, too, presupposes numerous rules of unwritten law pertaining to
proper conduct towards others.
Thirdly, it applies to practice (customary law). An example can be
found in art. 5:42 § 1 BW:
1. Unless the owner has consented, or the adjacent land is a public road or
public water, trees, shrubs or hedges must not be within such distance from the
boundary of the property of another person as determined in paragraph 2.
2. Unless a shorter distance is permitted pursuant to an ordinance or local usage,
the distance referred to in paragraph 1, for trees, is two metres from the middle
of the base of the tree, and half a metre for shrubs and hedges.
It follows that a landowner may be obliged to tolerate the presence of trees
within a distance of less than two metres from the boundary of his property
when local usage permits this shorter distance.
Finally, it applies to unwritten rules of public law. This is at once clear
from art. 3:14 BW, stating that a right a person has pursuant to private law,
may not be exercised contrary to the written or unwritten rules of public
law.
Does the provision that the owner must respect rules of unwritten
law have independent significance? Yes and no. One could maintain that
the provision is superfluous, next to the articles 6:162, 3:13 and 3:14 BW.
Salomons, Exclusiviteit van eigendom: hoeveel solidariteit kan van een eigenaar
verwacht worden?, in: Privaatrecht tussen autonomie en solidariteit. Bundel Amsterdams Instituut voor Privaatrecht 1 (M.W. Hesselink et al. eds.; Boom Juridische
uitgevers: The Hague 2003), p. 241-260, and Parl.Gesch. Boek 5 (Inv. Boek 3, 5 en
6) (Kluwer: Deventer 1990), p. 1004.
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Nevertheless, the legislator deemed it useful to enumerate the restrictions,
stemming from these articles, to stress that the right of ownership does not
furnish a valid defence against claims based upon unlawful action, abuse of
right or exercise of a right contrary to public law.
1.4.2. Restrictions regarding revindication
The owner’s right of revindication is restricted in several ways:
– When the owner brings a revindicatory action against a possessor (detentor pro se), the owner will have to prove that the possessor is not the
owner; see art. 3:119 § 1 BW.
– A revindicatory action cannot be commenced against someone who is
entitled to use the thing or otherwise is entitled to detain the thing on
the basis of a personal or real right.
– When the owner has lost possession of the thing through theft or loss,
he runs the risk that this has caused the loss of his ownership as a result
of protection of the acquirer in good faith (art. 3:86 BW) or because
the finder has fulfilled all the legal obligations and has acquired the
ownership of the lost thing (after one year, on the basis of art. 5:5
BW).
– When the finder has not acquired the ownership of the lost thing (e.g.
because the loss occurred less than one year before the revindication),
he may, nevertheless, be entitled to a reward (art. 5:10 § 2 BW). He
does not have a right of retention of the lost thing, however. See on the
acquisition of a movable by its finder below, § 13.1.
– When the revindicatory action is commenced against a possessor in
good faith, art. 3:120 BW enumerates several restrictions, strengthened
by a right of retention (§ 3):
1. Separated natural fruits and civil fruits that have become exigible belong to
the possessor in good faith.
2. The title-holder of property who claims it from a possessor in good faith or
has recovered it from him is obliged to reimburse him for the costs expended on
the property, as well as for the damages for which, by virtue of the rules of Title 3
of Book 6, the possessor might be liable toward third persons by reason of his
possession; this obligation ceases to the extent that the possessor has been indemnified by the fruits of the property and the other benefits he has drawn from
it. The judge may reduce the reimbursement due if full reimbursement would
result in an inequitable advantage of the possessor over the title-holder.
3. As long as a possessor in good faith has not received the reimbursement due
to him, he has the right to suspend restitution of the property.
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4. The provisions of this article also apply to a person who believes and could
believe that he has lawfully acquired possession, although he knows that the
acts necessary for delivery of the right have not taken place.
A possessor who is not in good faith is obliged to restore to the owner the
separated natural fruits and the civil fruits that have become exigible, without
prejudice to his liability for the damage suffered by the owner and in addition
to the restitution of the thing. He may claim against the owner the reimbursement of the costs that he has expended on the thing or that he has made to
produce the fruits only to the extent that his claim can be based on the rules
regarding unjustified enrichment (art. 3:121 BW). See on this in more detail
below, § 1.6.1.b, § 2.2.3.d, § 9.2 and especially § 18.1 and § 18.3.
1.4.3. Restrictions regarding the right to dispose of the object
With regard to the right of the owner to dispose of the thing one has to
distinguish between the right to transfer the thing (better: to transfer the
ownership of the thing) and the right to establish limited rights like a pledge
or usufruct.
The former – the right to transfer the thing – is (indirectly) dealt with
in art. 3:83 BW. Ownership, limited rights and debts are transferable, unless
this is precluded by law or by the nature of the right, while the transferability of debts can also be excluded by agreement between the creditor
and the debtor.
Other rights are not transferable except if so provided by law. Obviously,
transferability is not to be confused with the right to transfer: the former is a
quality of the object, the latter a quality of the title-holder. But it goes without saying – and has not even been laid down in the code – that the right
to transfer an object belongs exclusively to the owner (cases of execution by
pledgee or mortgagee, bankruptcy and seizure excluded), so the limitations
of transferability and the limitations of the right to transfer concur.26
The latter – the right to establish a limited right in the thing – belongs
to the person “who is entitled to an independent and transferable right”
(art. 3:81 § 1 BW). This implies a first restriction: when the object is not
independent or not transferable, no limited right can be established. Two
more restrictions are to be found in § 1 of the same article:
26
Property belonging to the public domain is intended for direct use by the public, but
is nevertheless susceptible to private law ownership and does not have to be owned
by the public autorities; see likewise G.A. van der Veen, Openbare zaken. Betekenis
van het aloude publiek domein na vestiging van het primaat van het publiekrecht (Thesis;
W.E.J. Tjeenk Willink: Zwolle 1997).
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– An established limited right must be “within the limits” of the right on
which it is established. This refers to the nemo plus rule. When one has
established a servitude on his land, e.g. permitting his neighbour to pass
over the land, and after that he grants a right of usufruct on that land to
someone else, the latter is bound by the provisions of the servitude, as
the owner is not entitled to transfer rights he does not have.
– The limited right has to be “recognized by law”. This is the enactment
of the numerus clausus rule, the status of which under present Dutch law
has been described above, § 1.2.
1.5.
Other property rights in movables
The Burgerlijk Wetboek acknowledges, besides ownership, four proprietary
rights in movables:
– Usufruct (in Dutch: vruchtgebruik):27 gives a right to use property belonging to another and to enjoy the fruits thereof (art. 3:201 BW).
– Right of use and right of habitation (in Dutch: recht van gebruik en recht van
bewoning).28 These two rights are more or less variations on usufruct,
which is acknowledged by the fact that, with some exceptions, the rules
regarding usufruct apply mutatis mutandis to the right of use and the right
of habitation (art. 3:226 § 1 BW). The crucial exception is to be found
in § 4 of the same article: a person having the right of use or the right of
habitation cannot alienate or encumber it; nor can he allow the thing
to be used or the dwelling to be inhabited by another person.29
– Hypothec (in Dutch: hypotheek):30 is a limited right, established upon
registered property, intended to provide recourse against the property
subjected thereto for a claim for the payment of a sum of money, with
preference over other creditors. Where it has been established upon
other property, it is a pledge (see art. 3:227 BW).
27
28
29
30
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, nos. 678-705, and W.M. Kleijn,
Vruchtgebruik. Monografieën Nieuw BW B-10 (Kluwer: Deventer 1990).
Only tangible things are susceptible to the rights of use and habitation. Therefore,
these rights ought to have been placed in Book 5 BW (Real Rights). Because of the
close connection with usufruct, however, it has found its way into Book 3 BW, annexed to Title 8 (Usufruct).
Author’s comment: I prefer the term hypothec over mortgage. See on hypothec in
Dutch property law Pitlo/Reehuis, Heisterkamp, Goederenrecht, nos. 837-912, and
W. Heuff, Hypotheek. Monografieën Nieuw BW B-12b (2nd ed.; Kluwer: Deventer
1993).
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– Pledge (in Dutch: pandrecht):31 the same as a hypothec (see above),
but established on property other than registered property. It should be
mentioned that the so-called floating charge, stemming from English
security law (in equity), holds no place in Dutch law.
None of these rights is restricted to movables, and most of them are not
even restricted to things:32 a right of usufruct is also possible on all other
property (art. 3:201 BW), the rights of use and habitation are also possible
on immovable thing (art. 3:226 BW), a right of pledge is also possible on
rights payable to bearer or order, on the usufruct of such a thing or right, or
on claims (in short: on all non-registered property, see art. 3:227 § 1 BW),
and a hypothec is possible on all registered property susceptible of transfer
(art. 3:228 BW in conjunction with art. 3:260 BW).
The numerus clausus rule does not preclude the creation of new proprietary rights by special laws (i.e. outside the civil code). Indeed, this
has been done in the past, for example the proprietary right of one’s own
grave.33 This, however, is an exception to the rule: property law constitutes
a system that is laid down in the civil code.
1.6.
Protection of ownership and other property rights
Several types of action are available to the owner and other title-holders
against possible infringements of their rights. We will distinguish between
the action of revindication, the action to obtain a declaratory judgement,
a tort action, and an action arising from unjustified enrichment.
1.6.1. Revindication
The principal action for the owner is the revindication (art. 5:2 BW):
The owner of a thing is entitled to revindicate it from any person who detains
it without right.
31
32
33
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, Section 14 § 3 and 4, and F. Molenaar, Pandrecht. Monografieën Nieuw BW B-12a (2nd ed.; Kluwer: Deventer 1991).
The Burgerlijk Wetboek contains four other proprietary rights, all of them restricted
to things and therefore dealt with in Book 5 BW (Real Rights): Servitutes, Emphyteusis, the Right of Superficies and Apartment rights.
This right was created in the Wet op de lijkbezorging (Funeral and Cremation Act),
enacted in the year 1869 (Staatsblad 1869, 65). See Asser-Mijnssen-De Haan, Goederenrecht 3-I (14th ed.; Kluwer: Deventer 2001), no. 39, and J. van der Haar, Lijkbezorgingsrecht (Thesis; Samsom: Alphen aan den Rijn 1964).
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The revindication enables the owner (and the other title-holders to whom
the action is also available; see below) to recover his property in its current
condition.
It can be instituted both against the person who is in actual possession
of the property (either as immediate possessor or as immediate detentor)
and against the person (the mediate possessor or mediate detentor) who
possesses or detains the property that is detained for him by another (see
art. 3:107 BW). Example: owner A of a bike can revindicate it both from
thief B and from person C to whom B has rented the bike. This action
against the mediate possessor or mediate detentor will not succeed, however, when the latter is not in a position to instruct the detentor to return
the property.34
The revindication also fails when the defendant is entitled to detain
the property on the basis of a legal relationship with the owner. This is the
case when owner A has leased a thing or has granted the usufruct of the
thing to B: for the duration of these relationships, revindication by A from
B is precluded.
The limitation period for revindication is 20 years (art. 3:306 BW; before 1992 this was 30 years).
(a)
Revindication by a non-owner
The action is also available for the emphyteutic holder, the superficiary and
the usufructuary, which are on a par with the owner.35
Indirectly, the possessor of a thing is also entitled to revindicate property
on the basis of loss or disturbance: this follows from art. 3:125 § 1 BW:
He who has acquired possession of property can, on the basis of a subsequent loss
of or disturbance in the possession, institute the same actions against third persons to recover the property and to remove the disturbance as the title-holder
of the property. Nevertheless, these actions must be instituted within the year
following the loss or disturbance.
This short-lived revindication by the possessor will not succeed against
every one, as § 2 provides that
34
35
See the judicial decisions of Hof (= Court of Appeal) Amsterdam d.d. 25 June 1947,
NJ 1947, 579 and Hof Amsterdam 26 June 1947, NJ 1947, 580.
Asser-Van Dam-Mijnssen-Van Velten 3-II, Goederenrecht. Zakelijke rechten (14th
ed.; Kluwer: Deventer 2002), § 115.
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(…) the action is rejected if the defendant has a better right than the plaintiff to
the detention of the property or if he has performed the disturbing acts pursuant
to a better right, unless the defendant has taken possession from the plaintiff or
has disturbed his possession in a violent or surreptitious manner.
This means that the action will succeed against those who have no rights
to the property whatsoever and against those who have obtained their possession at the expense of the former possessor: to the latter category belong
the thief, the incompetent detentor, and the person who has acquired the
thing from someone who was not entitled to dispose of the thing.36
After the expiry of one year since the loss or disturbance, this course of
action is no longer available to the possessor, but this does not preclude him
from bringing an action on the basis of a tort claim; art. 3:125 § 3 BW.
(b)
Revindication from the possessor
In the case of revindication from a possessor in good faith (as mentioned
above § 1.4.2), art. 3:120 BW provides that the owner is obliged to reimburse him for the costs expended on the property, as well as for the damages
for which the possessor might be liable toward third persons by reason of
his possession.
This obligation is offset to the extent that the possessor has been indemnified by the fruits of the property and the other benefits he has drawn
from it. The judge may reduce the reimbursement due if full reimbursement
would result in an inequitable advantage for the possessor over the titleholder. As long as a possessor in good faith has not received the reimbursement due to him, he has the right to suspend restitution of the property.
In the case of revindication from a possessor not in good faith (for this
term, see below, § 2.1.4), the latter is entitled to the reimbursement of the costs
he has expended on the revindicated object only to the extent that his claim
can be based on the rules regarding unjustified enrichment (art. 3:121 BW).
The above does also apply (mutatis mutandis) in situations in which
property is revindicated from a detentor: in the event that a third person
claims property as the title-holder from somebody who detains it for another
person, articles 3:120 and 3:121 BW37 apply to that detentor, due regard
being had to the juridical relationship between him and the other person;
see art. 3:124 BW.
36
37
A.S. Hartkamp, Compendium van het vermogensrecht volgens het nieuwe Burgerlijk Wetboek (6th ed.; Kluwer: Deventer 2005), no. 119.
As well as art. 3:122 and 3:123 BW, which have not been dealt with here; see below,
§ 18.3.
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1.6.2. Declaratory judgment
Secondly, the owner and other proprietary title-holders are entitled to request a judge give a declaratory judgement, either detailing that one’s own
claimed proprietary right exists (is valid), or that the claimed right, or claim
of the counter-party, does not exist (is invalid). The right to request such
a judgement stems from art. 3:302 BW:
The judge renders a declaratory judgment on a juridical relationship upon the
demand of the person directly concerned.
This course of action is especially useful when combined with a request for
an injunction and a penalty in case of non-compliance (see below).
1.6.3. Tort (injunction, damages)
The owner (and other title-holders) can take legal action on the basis of
tort (art. 6:162 BW) to obtain an injunction from the judge, for example
forbidding the defendant to disturb the plaintiff in the free and exclusive
use of his property. Such an injunction is helpful to the owner in the case
of nuisance, hindrance, obstruction, malicious damage to his property, or
even when someone else exercises one’s authority.
The injunction serves to prevent the recurrence of these events and
therefore protects against future unlawful acts. It is even possible to obtain an injunction before any interference with one’s property has actually
taken place: the basis of this kind of injunction is that the defendant is
legally obliged to refrain from the tort he is about to commit.38 Usually, an
injunction is combined with the imposition of a penalty in case of noncompliance.
The owner can also sue for damages. In principle these damages are
awarded in the form of a sum of money, but “the judge may award reparation in a form other than the payment of a sum of money” (art. 6:103
BW): an order to pay damages by way of restitutio in integrum or in natura
is a possibility.
In some cases it is possible for the judge to award damages while refusing
to grant an injunction: see art. 6:168 § 1 BW:
38
This was also the case before 1992, the year in which the new civil code was enacted;
see HR 18-8-1944, NJ 1944 / 45, 598. For the current law see Parl. Gesch. Boek 6,
p. 613, and Asser-Hartkamp, Verbintenissenrecht. Verbintenis uit de wet 4-III (12th
ed.; Kluwer: Deventer 2006), no. 118.
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The judge may reject an action to obtain an order prohibiting unlawful conduct
on the ground that such conduct should be tolerated for reasons of important
societal interests. The victim retains his right to reparation for damage according to this title.
The textbook example is the case in which someone living next to an
airport requests an injunction against future nuisance on the basis that the
airport violates current regulations on noise nuisance. The closure of the
airport would lead to mass unemployment and severe economic damage, so
it would be socially undesirable to grant the injunction, but this does not
deprive the airport’s neighbour of his right to receive damages in the form
of the payment of an amount of money.
1.6.4. Unjustified enrichment
In contrast to the former civil code (in force between 1838 and 1992) the
present code acknowledges the action arising from unjustified enrichment;
art. 6:212 BW. There are four conditions:39
– enrichment of the defendant;
– impoverishment of the plaintiff;
– a causal relationship between the enrichment and impoverishment;
and
– the enrichment has to be unjustified.
When these conditions have been met, the plaintiff is entitled to the payment of damages “to the extent this is reasonable” (art. 6:212 § 1 BW).
The extent of the liability has to be assessed as from the moment of the
enrichment (ex tunc), not the moment of the summons or the day of the
court’s judgement (ex nunc).
In recent years, there has been some debate on the legal character of
the action of unjustified enrichment. Two extremes can be discerned in
this debate:
(a) The action is intended to “fine-tune” the provisions of the code, and
therefore its principal function is to supplement;40
39
40
See A.R Bloembergen, C.C. Van Dam, Jac. Hijma, W.A.M. van Schendel and W.L.
Valk, Rechtshandeling en overeenkomst. Studiereeks burgerlijk recht 3 (5th ed.; Kluwer: Deventer 2007), no. 80, and W.H. van Boom and M.H. Wissink, Aspecten
van ongerechtvaardigde verrijking. Preadviezen, uitgebracht voor de Vereniging voor
Burgerlijk recht (Kluwer: Deventer 2002).
See especially W. Snijders, Ongerechtvaardigde verrijking en het betalingsverkeer.
Studiekring ‘Prof. Mr. J. Offerhaus’; nieuwe reeks, no. 7 (Kluwer: Deventer 2001).
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(b) The action constitutes an exception to the provisions of the code,
based on equity: its principal function is to correct wherever equity so demands.41
These two approaches seem more or less diametrically opposed to one
another,42 but the controversy does not seem to have much practical impact;
both sides refer approvingly to the many cases in which the Hoge Raad has
sustained claims on the basis of unjustified enrichment since 1992.
On one aspect consensus has been reached: the principle of subsidiarity
does not apply with regard to the action arising from unjustified enrichment. This implies that the owner is free to decide whether to litigate on
the basis of unjustified enrichment or to commence legal proceedings on
another basis (tort, revindication etc.).
In the context of property law, the action arising from unjustified enrichment is especially important in cases of accession, when a thing becomes a
“component part” (see art. 3:4 BW) of another thing (the “principal thing”;
art. 5:14 § 3 BW) belonging to someone else.43 Even though the implications
of accession – loss of ownership on the part of the owner of the component
part and simultaneous acquisition by the owner of the principal thing – are
based on legal provisions, they are to be considered unjustified.
One could say that art. 5:14 / 20 BW causes enrichment / impoverishment without justifying them, and therefore they do not preclude an action arising from unjustified enrichment. There are also provisions that
both cause and justify enrichment and impoverishment (for example, the
aforementioned art. 3:120 § 1 BW, which assigns natural and civil fruits to
the possessor in good faith. See, on this subject, art. 5:14 BW (accession of
a movable to a movable) and art. 5:20 BW (accession of a movable to an
immovable), to be dealt with below, § 10.
41
42
43
See especially A.S. Hartkamp, Ongerechtvaardigde verrijking naast overeenkomst
en onrechtmatige daad, Weekblad voor Privaatrecht, Notariaat en Registratie 64416442 (2001).
See A.F. Salomons, Verrijking, billijkheid en verdelende gerechtigheid, Weekblad
voor Privaatrecht, Notariaat en Registratie 6467 (2001), p. 993-995. Recently, Snijders
restated his opposition to the view that equity underlies the action arising from unjustified enrichment, but he added that the prohibition on unjustified enrichment
can be regarded a ‘guiding principle’ for determining what equity or a reasonable
interpretation of the law entails. In his opinion, guiding principles like this one offer
more grip and are therefore more important than general references to equity and
fairness (see W. Snijders, Ongerechtvaardigde verrijking: bestuursrecht, gemeenschapsrecht en rechtsherstel, Weekblad voor Privaatrecht, Notariaat en Registratie 6739
(2008), p. 65-73, at 65).
See F.H.J. Mijnssen, Goederenrechtelijke aspecten van ongerechtvaardigde verrijking, Weekblad voor privaatrecht, notariaat en registratie 6657 (2006), p. 174-180.
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1.7.
Transferability of movables
As has been said before (§ 1.3 and 1.4.3), the transferability of things or limited rights cannot be excluded contractually: ownership and limited rights
are transferable, unless this is precluded by law or by the nature of the right
(art. 3:83 § 1 BW). The same goes for claims, but the transferability thereof
can also be excluded by agreement between creditor and debtor (§ 2).44
An example of an object made non-transferable by law is the bottom
of the territorial sea and of the Waddenzee: according to art. 5:25, ownership of these seabeds belongs to the State. An example of an object that
is non-transferable by the nature thereof is a dependent right (e.g. pledge,
servitude or hypothec); such a right is related to another right in such
a fashion that it cannot exist independently thereof (art. 3:7 BW), and
therefore cannot be transferred separately either.
If the owner of a thing would contractually exclude or limit the transferability, this could have no effect erga omnes. If he would, for example, have
transferred a painting to someone else under the condition that it would
not be transferred again within ten years, this clause would have no proprietary effect: the acquirer would be free to transfer the painting to a third
person immediately, even if the latter knew of the existence of the clause.45
The clause would, nevertheless, have effect inter partes: the acquirer would
be liable contractually to the former owner for violating the stipulation to
keep the painting for ten years.46
44
45
46
See F.E.J. Beekhoven van den Boezem, Onoverdraagbaarheid van vorderingen krachtens
partĳbeding (Thesis; Groningen 2003). In HR 17-1-2003, NJ 2004, 281 (Oryx-Van
Eesteren), the Hoge Raad decided that when the parties to a contract have excluded
the possibility to transfer the contractual claim ex art. 3:83 lid 2 BW, the result of
this is not that the creditor is not entitled to transfer the claim, but rather that the
clause has the effect that the claim itself is non-transferable. This implies that it is
not relevant whether a possible assignee was aware of the clause in which transfer
was excluded: as the claim was not susceptible to transfer, the assignee cannot succesfully invoke the rule on good faith acquisition. This applies mutatis mutandis to
clauses in which the parties have excluded the possibility to pledge the claim.
See Snijders / Rank-Berenschot, Goederenrecht, no 105.
Ibid., no. 108.
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2. Possession
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2.
Possession
2.1.
Possession and detention
Possession (in Dutch: bezit) – together with detention regulated in Book 3
Title 5 BW – is defined in art. 3:107 BW as “the fact of detaining property
for oneself”. In this definition it is expressed that possession is to be regarded as a species of the genus detention (in Dutch: houderschap): possession
is the kind of detention exercised for oneself (pro se).
In this respect, detention refers to a factual situation: exercising power
over an object. Detention is not defined in the code, but may be inferred
from the travaux préparatoires. From the fact that detention is not defined
it follows that possession lacks a meaningful definition, too. This is no
coincidence: the legislator expressed the wish
“that the judge, in applying the new provisions on possession, would let himself be guided by the practical function of possession and not by dogmatic
considerations.”47
Next to possession, there is another kind of detention, which is not exercised for oneself, but for someone else. The person who detains an object for
someone else is called a detentor (in Dutch: houder). There is some risk of
confusion here, as the notion of detentor is reserved for the person detaining for someone else, while the notion of detention has a wider meaning:
it can be applied to both the detentor and the possessor.
All property is susceptible to possession and detention: both tangible
property (in Dutch: zaken) and rights (in Dutch: vermogensrechten). This
follows from the definition in art. 3:107 § 1 BW, but can also be inferred
from the fact that these subjects are regulated in Book 3 BW.
2.1.1. The criterion “detaining property for oneself”
To be in possession implies having animus rem sibi habendi. Nevertheless,
the focus of the law is not on the animus itself, but on the behaviour of the
possessor, or, to be more precise: on the combination of common opinion
and the facts as they appear, with a corrective role for the legal provisions.
Compare art. 3:108 BW:
47
Parl.Gesch. Boek 3, p. 424.
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Whether somebody detains property and whether he does so for himself or for
another, is determined according to common opinion, taking into account the
following rules48 and, otherwise, the facts as they appear.
The legislator has stressed49 that the words “detaining for himself” are not
to be read as: “detaining as its title-holder”.50 It provided several arguments
for this:
(a) The words might suggest that the possessor had to be the titleholder;
(b) Otherwise, it might be inferred that the possessor had to be not the
title-holder (“as if he were the title-holder”);
(c) It could also be maintained that a lessee detains the thing pursuant
to the lease contract “as the title-holder”.
The essential question is the following: in what relationship to, or under
what legal presumption towards, others does the person concerned detain
the property? Against this background, the use of the criterion “for himself”
prevents the aforementioned uncertainties. For example, it can no longer
be maintained that a lessee detains “for himself” as he detains pursuant to
his relationship with the lessor.51
2.1.2. Legal capacity required?
The question whether legal capacity is required to detain for oneself and
therefore to be the possessor, receives no attention in the Dutch literature
on either possession or legal capacity. The correct answer seems to be that
possession in itself does not require legal capacity: Dutch law accepts neither the subjective theory of Von Savigny (focussing on animus) nor the
purely objective theory of Von Jhering (focussing on corpus).
48
49
50
51
This refers to articles 3:109-117 BW.
Parl. Gesch. Boek 3, p. 427.
As was mentioned above, the notion of possession applies to all property (corporeal
objects and rights), and therefore is placed in Book 3 BW. In this respect, there is
an important difference with ownership, which is reserved to things and is placed
in Book 5 BW.
Important in this context is art. 3:111 BW, which makes it impossible for the detentor like a lessee to change the title of his possession by turning himself into a
possessor without informing his counter-party: A person who has begun detention for
another pursuant to a juridical relationship continues to do so under the same title, so long
as no change is apparent in his title that results either from an act by the person for whom
he holds or from the latter’s right having been contested. This provision is discussed in
§ 1.2.1, § 2.3 and § 5.4.2 sub A2.
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To determine whether possession occurs, one has to look at the circumstances which ordinarily indicate the will to detain for oneself.52 In doing so,
common opinion is decisive (art. 3:108 BW), while the internal will is irrelevant (as has been said above: one has to focus on “the facts as they appear”).
This implies that legal capacity is not required for being a possessor.
However, this is irrelevant for the equally important question whether
legal capacity is required for becoming a possessor. When this involves a
legal act, legal capacity is clearly required. Most Dutch authors accept Von
Savigny’s view that delivery implies a dingliches Vertrag (in Dutch: zakelijke
overeenkomst), and this can be considered ius constitutum (even though
there exists a noisy minority of authors who deny the need for a dingliches
Vertrag); see below, § 5.6. As delivery of movables is effected by the transfer
of possession (art. 3:90 BW), the latter has to be considered a legal act,53
which requires legal capacity on the part of both parties involved. Therefore, a person lacking legal capacity cannot become a possessor of a movable
by way of transfer.
2.1.3. Mediate and immediate possession and detention
Like German law, the BW distinguishes between the person who is in actual physical control and the person who exercises control through another
person physically holding the asset (the detentor). The former is called the
immediate possessor, the latter the mediate possessor; see art. 3:107 §§ 2
and 3 BW:
2. A person who possesses property that is not detained for him by another has
immediate possession.
3. A person who possesses property that is detained for him by another has
mediate possession.
The same distinction is made with regard to detention; see art. 3:107 § 4
BW:
4. Mutatis mutandis detention is mediate or immediate.
It has been pointed out in Dutch legal literature that there are many borderline cases. For example: when one appoints a caretaker to look after one’s
52
53
See A.C. van Schaick, Rechtsgevolgen en functies van bezit en houderschap. Monografieën Nieuw BW A-14 (Kluwer: Deventer 2003), p. 12.
See likewise J.A.J. Peter, Levering van roerende zaken (Thesis; Kluwer: Deventer
2007).
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country house, does that imply that one becomes the immediate possessor?54
Whatever the answer, the question is not all that important.
2.1.4. Possessor (not) in good faith
Another distinction between different types of possessors is between the
possessor in good faith and the possessor not in good faith. The former is
(more or less) defined in art. 3:118 § 1 BW:
A possessor who believes himself to be the title-holder and is reasonably justified in that belief, is a possessor in good faith.
Someone who does not meet these requirements is a possessor “not in good
faith” – a separate definition is lacking in the code.55 In a general context,
art. 3:11 BW provides what the requirement of good faith entails:
Where good faith of a person is required to produce a juridical effect, such
person is not acting in good faith if he knew the facts or the law to which his
good faith must relate or if, in the given circumstances, he should have known
them. Impossibility to inquire does not prevent the person, who had good reasons to be in doubt, from being considered someone who should have known
the facts or the law.
For practical purposes the distinction will not be elaborated upon here; it
should be dealt with in a context in which the distinction is relevant (see
e.g. above, § 1.4.2, on the revindication by a possessor in good faith / not
in good faith).
Distinctions between different forms of possession based on the intention of the involved persons (the German distinction between Eigenbesitz
and Fremdbesitz), or on the social dependence of the person physically
holding the asset, from the possessor (the German Besitzdiener), have not
54
55
See H.C.F. Schoordijk, Vermogensrecht in het algemeen. Naar Boek 3 van het
nieuwe B.W. (titel 1 t / m 5, titel 11) (Kluwer: Deventer 1986), p. 355.
The Burgerlijk Wetboek does not use the term “possessor in bad faith”, but prefers
“possessor who is not in good faith” (in Dutch: bezitter niet te goeder trouw). See Snijders / Rank-Berenschot, Goederenrecht, no. 88, on the existence of a “no man’s land”
between good and bad faith: he who did not know, but ought to have known is not
in good faith, but is not in bad faith either, in view of the negative connotations of
the latter term; bad faith is linked to actual knowledge. The term “bad faith” is not
lacking in the Burgerlijk Wetboek altogether: in Book 6 BW, there are several provisions (art. 6:205-207 and 6:274 BW) on the “recipient in bad faith.”
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2. Possession
35
been adopted in the BW. The obvious reason for this is the conviction of
the Dutch legislator that the notions ‘possession’ and ‘detention’ do not
deserve too much attention, while, until 1992, they were given more attention than their practical importance warranted.
As to the intensity of the relationship between the person (possessor)
and the object: once possession has been acquired, it continues until it is
evident that he abandons the property or another acquires possession of it
(art. 3:117 § 1 and 2 BW). This implies that the possessor does not have to
perform any actions to demonstrate that he wants to keep the object in his
possession; his actions are only relevant for assessing whether he has evidently abandoned the property of transferred possession to someone else.
It can also be concluded that the requirements for obtaining possession
are stricter than for keeping it. This can also be inferred from art. 3:113
BW, which provides that possession of property is taken by acquiring actual control of it, but in the case that the property is in the possession
of another, isolated acts of control are insufficient for taking possession
(art. 3:113 BW).
This is relevant to a recent debate on the question whether the thief
who hides his loot for twenty years in order to be in a position to invoke
the rule of art. 3:105 BW qualifies. This rule awards ownership to the person
who possesses property at the time of the completion of the prescription of
the right of action to terminate possession (20 years), even if his possession
was not in good faith (see below, § 2.2.3 sub B, § 12.1 and especially § 12.2).
According to some, the thief would not qualify for application of art. 3:105
BW in view of the fact that he did not openly posses the loot for twenty
years (this is not explicitly required in the civil code, but is regarded as an
implicit requirement for acquisitive prescription).
Others have criticized this opinion by pointing at the fact that art. 3:113
BW explicitly provides that, once possession has been acquired, this possession in principle continues without any further requirements as to the
behaviour of the possessor. As art. 3:105 BW merely requires possession
at the time of the completion of the prescription of the right of action to
terminate possession, without any additional requirements, it seems that
the fact that the thief hid his loot for the entire prescription period cannot
preclude acquisition on the basis of this provision.56
56
The first position is taken by A.C. van Schaick, Dief wordt vaak geen eigenaar,
Weekblad voor Privaatrecht, Notariaat en Registratie 6617 (2005), p. 289-290, the latter
by A.F. Salomons, Dief wordt doorgaans wel bezitter, Weekblad voor Privaatrecht, Notariaat en Registratie 6639 (2005), 803-806 (with reaction by Van Schaick). See also
J.E. Jansen, Reactie op “Dief wordt vaak geen eigenaar” van mr. A.C. van Schaick,
Weekblad voor privaatrecht, notariaat en registratie 6639 (2005), p. 801-802.
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2.2.
Functions of possession
Dutch doctrine distinguishes between the following functions of possession:57
2.2.1. Defensive function
This function refers to the protection of possession, which is based on the
fact that the person performing acts of possession is usually also the titleholder. This in itself is considered sufficient reason to protect the possessor
in his possession; see art. 3:125 BW, on which see above, § 1.6.1a, and
below, § 2.4.
2.2.2. Procedural function
The possessor is presumed to be the title-holder – this means that proof of
the opposite is permitted. This is enacted in art. 3:119 § 1 BW. The procedural function is related to the aforementioned defensive function, and can
even be considered a consequence thereof: both in and outside court the
possessor is to be protected on the basis of his possession itself.58
2.2.3. Acquisitive function
Possession serves as an acquisitive instrument in several ways:
(a)
Occupation
Ownership of a res nullius is acquired by taking possession thereof, according to art. 5:4 BW. See below, § 13.2 and § 16.
57
58
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 355.
The presumption of art. 3:119 § 1 BW is set aside in the second paragraph in respect
to registered property, where it is established that another party or his predecessor
was the title-holder at any time and the possessor could not invoke subsequent
acquisition by particular title requiring entry in the registers.
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(b)
37
Prescription
See art. 3:99 § 1 BW:
Rights in movable things which are not registered property and rights under
documents payable to bearer and order are acquired by a possessor in good
faith by uninterrupted possession for three years; other property is acquired by
uninterrupted possession for ten years.
The possessor not in good faith is also entitled to prescription. This follows
from art. 3:105 BW:
A person, who possesses property at the time of the completion of the prescription of the right of action to terminate possession, acquires the property even
if his possession was not in good faith.
As revindication is subject to a limitation period of 20 years (art. 3:306
BW), thieves become owners of their loot 20 years after the theft. The
wisdom behind the provision of art. 3:105 has been contested by some,
who fear that criminals may be induced to steal priceless objects of art, for
example Rembrandt’s Night Watch, in order to hide them for 20 years, after
which they are fully entitled to sell them as owners. See below, § 12.2.
(c)
Transfer
Delivery of the ownership of movables is effected by transfer of possession
(art 3:90 § 1 BW). The same applies to rights payable to bearer and order
(see art. 3:93 BW). We will deal with this subject in more detail elsewhere;
especially § 2.3.2 sub A and § 5.4.2 sub A.
(d)
Fruits
Separated natural fruits and civil fruits that have become exigible belong to
the possessor in good faith (art. 3:120 § 1 BW). This does not apply to the
possessor who is not in good faith: he is obliged to restore to the title-holder
the separated natural fruits and the civil fruits that have become exigible
(art. 3:121 § 1 BW). See below, § 9.2, § 13.3 and § 18.1.
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2.2.4. Liability function
For several categories of objects, being its possessor involves liability for any
damage the object may cause. This applies to:
– The possessor of a movable thing which is known to constitute a special
danger for persons or things if it does not meet the standards which, in
the given circumstances, may be set for such a thing, unless there would
have been no liability if the possessor would have known the danger at
the time when it arose (art. 6:173 BW);59
– The possessor of a structure that does not meet the standards that, in the
given circumstances, may be set for it, and thereby constitutes a danger
for persons or things, unless there would have been no liability if the
possessor would have known the danger at the time when it arose. In
the case of emphyteusis, the liability rests upon the possessor of the right
of emphyteusis. In the case of public roads, it rests upon the public authority in charge of the proper maintenance of the roads; in the case of
conduits, it rests upon the person managing them, except to the extent
that the conduit is located in a building or work and serves to supply or
drain that building or work (art. 6:174 BW);60
– The possessor of an animal, unless there would have been no liability if
the possessor would have had control over the behaviour of the animal
that caused the damage (art. 6:179 BW).61
Art. 6:181 BW adds to this: where the things, structures or animals referred
to in articles 6:173, 6:174, and 6:179 BW are used to carry on a business, the
liability rests upon the person carrying on this business, unless a structure
is involved and the origin of the damage is not related to the carrying on
of the business.
2.2.5. Compensation function
Even in cases where the possessor is obliged to hand over the thing to the
owner (e.g. in the case of revindication), the possessor is not left emptyhanded: according to art. 3:121 BW, he is entitled to the reimbursement
of the costs expended on the property, as well as for damages for which the
possessor might be liable toward third persons by reason of his possession;
this obligation ceases to the extent that the possessor has been indemnified
59
60
61
See Asser-Hartkamp 4-III, Verbintenissenrecht; de verbintenis uit de wet, nos. 168185.
Ibid., nos. 186-192.
Ibid., nos. 193-200.
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by the fruits of the property and the other benefits he has drawn from it.
The judge may reduce the reimbursement due if full reimbursement would
result in an inequitable advantage for the possessor over the title-holder.
The possessor not in good faith is entitled to reimbursement of the costs he
expended on the property or which he has made to produce the fruits only
to the extent that his claim can be based on the rules regarding unjustified
enrichment; art. 3:121 BW. See above, § 1.4.2 and § 1.6.1, and especially
below, § 18.
2.3.
Acquisition of possession
In art. 3:112 BW, three forms of acquisition of possession are distinguished:
by taking possession, by transfer of possession and by succession by general
title.
2.3.1. Taking possession (occupatio)
A person takes possession of property by acquiring actual control of it
(art. 3:113 § 1 BW). Taking possession is possible with regard to both things
and patrimonial rights.
The control of the property should be exercised in such a manner that
it is made manifest that the former possessor is no longer in that position;
the common opinion has to be the guideline here. If the property is in the
possession of another, isolated acts of control are insufficient for taking
possession (art. 3:113 § 2 BW).
The acts that could indicate taking possession of immovable property
are usually performed periodically (non-permanently). Nevertheless, it is
necessary that these acts, vis-à-vis the property, are performed with (according to common opinion) a degree of permanency (stability).62
2.3.2. Transfer of possession
Possession can be transferred either corporeally or by a bilateral declaration
without material acts; the former is provided in art. 3:114 BW, the latter
in art. 3:115 BW.
62
Asser-Mijnssen-De Haan, Goederenrecht 3-I, no. 186.
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(a)
Corporeal transfer of possession
Art. 3:114 BW provides:
A possessor transfers his possession by enabling the acquirer to exercise such
control over the property as he himself was able to exercise over it.
The most obvious way of providing possession in this manner is by handing
over the object (traditio vera) or any other act that gives direct possession
over the object, such as the handing over of keys (traditio symbolica).
Transfer of possession (in Dutch: bezit overdragen) can only be performed
by someone who is the possessor himself. A detentor cannot transfer possession simply because he does not have possession himself. Nevertheless,
the BW acknowledges that a detentor can give possession (in Dutch: bezit
verschaffen), notwithstanding the fact that he lacks possession himself. See
art. 3:90 BW, which states that the delivery of a movable thing that is unregistered property and under the control of the alienator is made by giving
possession to the acquirer; in this manner it is indicated that the delivery
may be performed by both a possessor and a detentor.
(b)
Transfer of possession by bilateral declaration
Art. 3:115 BW (traditio ficta)63 acknowledges three forms of transfer of possession effected by mere agreement (bilateral declaration constituting a
legal act):
– traditio constitutum possessorium (art. 3:115 under a BW): the alienator
possesses the thing and henceforth detains it for the acquirer by virtue
of a stipulation made at the time of delivery. Traditio constitutum possessorium cannot be performed by a detentor: this follows both from
the opening words of art. 3:115 BW (the article deals with transfer of
possession, but see below) and from art. 3:111 BW (a person who has
begun detention for another pursuant to a juridical relationship continues to
do so under the same title, so long as no change is apparent in his title resulting either from an act by the person for whom he holds or from the latter’s
right having been contested). The scope of traditio constitutum possessorium
is diminished even further by art. 3:90 § 2 BW: Delivery of a thing that
remains in the hands of the alienator has no effect with respect to a third person who has a prior right to the thing, until the time when the thing has come
into the hands of the acquirer, unless the third person has consented to the
63
See L.P.W. van Vliet, Transfer of movables in German, French, English and Dutch
law (Thesis; Ars Aequi Libri: Nijmegen 2000), passim.
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2. Possession
41
alienation. The effect of articles 3:90 § 2 BW and 3:11 BW combined is
that constitutum possessorium is considered an “inferior form” of traditio
(which is explained and justified by the lack of publicity of constitutum
possessorium).
– traditio brevi manu (art. 3:115 under b BW): the acquirer was the detentor of the thing for the alienator. This form of delivery may also be
exercised by a detentor.64
– traditio longa manu (art. 3:115 under c BW): a third party detained the
thing for the alienator and detains it for the recipient after the delivery. In this event possession does not pass until the third party has
acknowledged the delivery or has been notified thereof by the alienator
or acquirer. Traditio longa manu by a detentor has been acknowledged
by the Hoge Raad.65
Not included in the BW, but acknowledged by the Hoge Raad, is the traditio
sine manu.66 This term is used to indicate the traditio (a mixture between
constitutum possessorium and brevi manu) between two people who before
and after the transfer exercise shared control over the transferred object.
This is the case when a thing is transferred between husband and wife,
for example. See more detail on transfer of possession below, § 5.4 (and in
particular § 5.4.2).
2.3.3. Succession by general title
Article 3:116 BW provides that the possession and detention of the successor by general title is of the same quality and subject to the same defects as
that of his predecessor. Succession by general title occurs through inheritance, fusion of patrimonies (in case of marriage) and through succession
to the patrimony of a legal person which has ceased to exist (art. 3:80 § 2
BW).
The purpose of art. 3:116 BW is to establish that the nature and quality
of possession and detention are not influenced by the fact that they pass
64
65
66
It is common opinion that traditio brevi manu may also be performed by a detentor
(in which case the provision is to be applied analogously). In that case, possession is
not transferred, but given. The opening words of art. 3:115 BW suggest (apparently
incorrectly for traditio brevi manu and, as we will see below, longa manu) that traditio
by bilateral agreement can only be performed by a possessor.
HR 1-5-1987, NJ 1988, 852 (IBM). See also HR 18-9-1987, NJ 1988, 983 (Berg / De
Bary).
See HR 18-2-1966, NJ 1967, 109 (Goubitz / Klinger) and HR 7-3-1975, NJ 1976, 190
(Lutgens / Karsmakers).
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to someone else in the case of inheritance, fusion of patrimonies, or succession to the patrimony of a legal person; when the predecessor was not
in good faith, the successor is ipso iure neither, even if, in reality, he was in
good faith.
The importance of this provision manifests itself in particular in the
case of prescription; see art. 3:102 § 1 BW:
A person who succeeds to the possession of another by general title continues
an already running prescription.
This means that even the successor not in good faith continues the already
running prescription, as long as the predecessor was in good faith. This
differs from prescription in case of acquisition of possession otherwise than
by general title: in that case the successor has to be in good faith himself
(see art. 3:102 § 2 BW).
2.4.
Protection of possession
The Burgerlijk Wetboek awards the possessor real protection in art. 3:125
BW (more or less after the example of the ancient Actio Publiciana), which
reads as follows:
1. He who has acquired possession of property can, on the basis of a subsequent
loss of or disturbance in the possession, institute the same actions against third
persons to recover the property and to remove the disturbance as the titleholder of the property. Nevertheless, these actions must be instituted within
the year following the loss or disturbance.
2. The action is rejected if the defendant has a better right than the plaintiff to
the detention of the property or if he has performed the disturbing acts pursuant
to a better right, unless the defendant has taken possession from the plaintiff or
has disturbed his possession in a violent or surreptitious manner.
3. Nothing in this article deprives the possessor, even after the expiry of the year
referred to in the first paragraph, or the detentor of the possibility, should there
be grounds, to institute an action on the basis of an unlawful act.
The purpose of the provision is to give protection to the possessor against
those who have an inferior right to the property. Protection is given to any
possessor; whether or not he is in good faith is irrelevant.
The possessor can (within a year following the loss or disturbance) institute the same actions as the title-holder (see § 1). In the first place, this
refers to the revindication (art. 5:2 BW), which is especially valuable when
the defendant has been declared bankrupt. Other actions to terminate an
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2. Possession
43
unlawful situation qualify also (for example, the denial of a pretended limited right67), as well as accessory actions like requesting an injunction under
forfeiture of a penalty.
The second paragraph states that the possessor cannot institute the action against a defendant who has a better right to the property. This refers
in the first place to the title-holder, but applies also to the detentor (for
example, the renter who is entitled to continued use of the property) and
to the (former) possessor of the property who was the victim of theft.
The Hoge Raad has applied this provision analogously to the right of
retention.68 The retentor who loses control of the thing69 is entitled to reclaim it under the same conditions as an owner, according to art. 3:295 BW.
Now the Hoge Raad has ruled that the – former70 – retentor is not entitled
to reclaim the thing when it has come under the control of the owner.
Justification for this decision was found in the analogous rule of art. 3:125
§ 2 BW (quoted above in § 1.6.1a).
There is an important exception to the rule that the possessor is not
entitled to reclaim the property against someone with a superior right: to
prevent him from taking the law into his own hands, the action is allowed
against someone who has acted unlawfully (“in a violent or surreptitious manner”). This implies that the owner should not ‘steal’ his own property from
a possessor who is unwilling to hand it to him voluntarily: in reaction, the
possessor would be entitled to institute an action to recover it, even if that
would re-establish the deadlock between owner and possessor.71
The importance of the third paragraph of art. 3:125 BW lies in the
fact that it stresses that the possessor who is the victim of interference,
hindrance, theft etc. is not obliged to use the actions of art. 3:125 § 1 BW:
he can opt for an action based on tort. This applies not only to the situa67
68
69
70
71
See Hartkamp, Compendium, no. 119.
HR 20-9-2002, NJ 2004, 171 (Van der Wal / Duinstra).
This would not entail the termination of his right of retention, as this only occurs “in
the event that the thing comes under the control of the debtor or the title-holder”; art. 3:294
BW).
In a case like this, the right of retention is terminated as soon as the thing has come
under the control of the owner (see previous footnote), but this is not decisive in
itself: regaining control of the thing via art. 3:295 BW could be regarded as cause for
a revival of the right of retention.
In the case referred to above (HR 20-9-2002, NJ 2004, 171, in which the Hoge Raad
decided that the action of the retentor under art. 3:295 BW cannot be used against
the owner) the Procurator General (A.S. Hartkamp) proposed to accept an exception similar to that mentioned in art. 3:125 § 2 BW for the situation in which the
owner had acted unlawfully against the possessor. The Hoge Raad, however, did not
comment on this suggestion (as it was not relevant to the case at hand).
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tion in which the period of one year, mentioned in art. 3:125 § 1 BW, has
passed, but also before that.72 Obviously, this course is not to be preferred
above the action in rem of art. 3:125 BW against someone who is bankrupt.
In summary proceedings, on the other hand, the tort-based action has the
advantage of a speedy outcome.73
2.5.
Self-help
The BW does not explicitly entitle the possessor to defend himself against
dispossession or interference with his possession by any other means than
instituting an action. This should not be taken to mean that self-help
against these kinds of occurrences is always off-limits. In Dutch private
law, general provisions on self-help are absent, but specific provisions granting the right of eigenrichting to certain persons are not; see art. 5:44 BW74
and art. 7:206 § 3 BW.75 The scope of self-help by the (former) possessor is,
nevertheless, very limited, as can be gathered from the following.
The permissibility of self-help is, obviously, closely linked to the lawfulness of the methods used. The person whose bike is stolen is not entitled
to use force against the thief to persuade the latter to abandon the bike.76
But if the thief parks the bike unlocked in front of a store, the owner is not
overstepping the boundaries of the law if he openly seizes this opportunity
to recapture possession of his bike; the authority to do so can be found in
the right to use his property to the exclusion of everybody else; art. 5:1 § 1
BW.77 The same conclusion can be drawn from art. 3:125 § 2 BW, which
72
73
74
75
76
77
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 401 ff.
See W. Schenk and J.H. Blaauw, Het kort geding, B. bijzonder deel (6th ed.; Kluwer:
Deventer 2000), p. 91 ff.
Art. 5:44 § 1 BW provides that an owner of land may, in his own right, cut and appropriate plants that hang over his property and belong to a neighbour in the case
that the latter, despite a warning from the aforementioned owner of the land, fails
to remove the overhanging plants. Similarly, a person may cut and appropriate roots
to the extent that they extend upon his land from another’s property (§ 2).
Entitling the lessee to make repairs in the case the lessor is neglecting his duty to
correct a defect; the lessee may recover the costs, to the extent that these were
reasonable, from the lessor, if so desired by deducting them from the rent.
The example is taken from Mr. A. Pitlo, Het systeem van het Nederlandse privaatrecht
naar het Nieuwe Burgerlijk Wetboek (10th ed. edited by P.H.M. Gerver, H. Sorgdrager
and R.H. Stutterheim; Arnhem 1990), 214.
The authority for his action cannot be found in the right of the owner to revindicate
his property from any person who detains it without right (art. 5:2 BW): this right
refers to the institution of a legal action. As was already said in § 1.3, P.C. van Es
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45
was discussed above in § 2.4: in case the owner takes possession from a
thief, the thief cannot institute an action78 against him, unless the owner
took possession from him “in a violent or surreptitious manner”. This provision clearly indicates that the legislator is in principle opposed to self-help:
even the owner who is confronted with theft of his property is not entitled
to repetitiously regain possession: the thief may in that case institute a
proprietary action against him “to recover the property and to remove the
disturbance” (art. 3:125 § 1 BW).
The Hoge Raad has decided that the fact that someone has used selfhelp does not prevent him from going to court in the same dispute at a later
stage.79 This decision merely indicates that the use of self-help does not lead
to the forfeiture of the right to institute a lawsuit later on, but does not enable us to draw conclusions on the permissibility of self-help.
The fact that possession was acquired through self-help may be relevant
in another context as well: according to the leading Handbook on Dutch
property law (with reference to case law of lower courts) the person who
acquired possession through self-help is not entitled to invoke the presumption of ownership that is attached to possession (art. 3:119 § 1 BW).80
3.
Personal right and proprietary protection
3.1.
Introduction
This section deals with the question whether the various rights to hold
or to acquire a movable are always obligatory rights or can also equally be
rights in rem.
The starting point should be that Dutch patrimonial law has, as said
above in § 1.2, from HR 3-3-190581 onwards, maintained a fairly sharp
78
79
80
81
has argued recently in his De actio negatoria – Een studie naar de rechtsvorderlijke zijde
van het eigendomsrecht (Thesis; Leiden 2005) that a separate legal action is available
to the owner against infringements on his exclusive right to use his property.
He can institute the same actions against third persons to recover the property and
to remove the disturbance as the title-holder of the property; art. 3:125 § 1 BW. So
even the proprietary action of the owner, the revindication (art. 5:2 BW), is available for the dispossessed possessor. This action must be instituted within a year after
the loss of possession or disturbance, but after that the possibility remains, should
there be grounds, to institute an action on the basis of an unlawful act (see art. 3:125
§§ 1 and 3 BW).
HR 18 December 1992, NJ 1993, 152.
W. 1905, no. 8191.
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distinction between rights in rem and rights in personam. The distinction
has lost some of its sharpness in recent decades, but the distinction also
characterizes the new Burgerlijk Wetboek of 1992. Justification for this is
found in the importance attached in Dutch property law (old and new) to
the principle of publicity: ‘drittwirkung’ of rights requires (and presupposes)
that the acquisition and existence of that right is knowable. See above,
§ 1.2.1 and below, § 5.4.1.
3.2.
Proprietary position, financial lessee or buyer,
in case of title reservation?
Against this background it is understandable that common opinion is not
prepared to award a right in rem to the (financial) lessee. Not all authors
share this view, however: in his Ph.D. thesis on leasing, J.J. van Hees argued
in 1997 that the position of the lessee has to be qualified as a proprietary
claim on the object of the financial lease:82 both the lessor and the lessee
should in this view be regarded as owners.
Van Hees maintains that his view is supported by other kinds of “relative ownership” in Dutch law: in case of seizure (art. 453a Wetboek van
Burgerlijke Rechtsvordering = Code of Civil Procedure), the actio pauliana
(art. 3:45 BW and art. 42 Faillissementswet = Bankruptcy Act) and constitutum possessorium (art. 3:90 § 2 BW): in all these instances, the acquirer of
an object is to be regarded as its owner, except against certain stakeholders
(creditors, third persons with a prior right etc.).
By others83 it has been pointed out, however, that in all these cases of
“relative ownership”, there is always only one owner in each relationship:
so the acquirer in case of transfer constitutum possessorium is considered to
be the owner with regard to third persons, but with regard to persons with a
prior right he is not. In this view it is impossible that both lessor and lessee
are considered to be owners simultaneously.
Just as most Dutch legal scholars are not prepared to award the financial
lessee a proprietary position, they likewise refuse to regard the acquirer in
case of transfer under suspensive condition (see art. 3:91 BW) as more than
a mere detentor. In case of reservation of title (art. 3:92 BW) ownership
is not transferred until the buyer performs his obligation: before that, the
buyer has no right in rem on his purchase.
82
83
J.J. van Hees, Leasing. Serie Onderneming en Recht 8 (Thesis; W.E.J. Tjeenk
Willink: Zwolle 1997), p. 108-111 and passim.
See especially J.E. Fesevur in his review of Van Hees’ thesis in RM Themis 2000 / 4,
p.144-148. See also the review of the same thesis by A.F. Salomons in Weekblad voor
Privaatrecht, Notariaat en Registratie 6414 (2000), p. 598-602.
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3.3.
47
‘Vormerkung’ with regard to registered property
An important exception to the rule that in the case of transfer, ownership changes hands at the moment of delivery and not before, has recently
(September 1, 2003) been introduced in the Burgerlijk Wetboek with regard
to registered property (especially houses); this should be mentioned here
even though movables are our main concern.
In case of a sale of registered property, the sale can be entered in the
public register: this entry safeguards the buyer against events like transfer,
seizure, lease of the property, it being put under administration, and even
against the bankruptcy of the seller. However, the entry of the sale should
within six months be followed by the delivery of the property (thereby finalizing the transfer of ownership); otherwise the protection of the entry
in the public registers loses force with retroactive effect. See art. 7: 3 §§ 1-4
BW.
With regard to other property no changes have been introduced. Therefore, there is no proprietary effect connected to options to buy, to sales on
approval, to preliminary agreements to later conclude a contract (Vorvertrag), or to the right to repurchase.84
3.4.
Indirect representation
Finally, proprietary protection is given to the principal in case of acquisition
through an agent; see art. 3:110 BW:
Where there exists a legal relationship between two persons to the effect that
what one of them will acquire in a specified manner will be detained by him for
the other, the former detains for the latter what has been acquired by him in
the performance of the legal relationship.
This provision, the enactment of which in 1992 ended a long debate, implies the acceptance of the so-called “direct doctrine” or “doctrine of direct
acquisition”. It means that the principal automatically becomes the possessor of the property his agent acquires for him. With regard to movables,
this has the effect that the principal also acquires ownership, as the delivery
84
We leave aside the provisions on repurchase agreements, which have been introduced by the implementation of the Collateral Directive of June 6, 2002 (2002 / 47 /
EG) (see art. 7:51-56 BW), as these relate to cash or financial instruments only.
See L.F.A. Steffens, De Europese richtlijn Financiëlezekerheidsovereenkomst en de
implementatie in de Nederlandse wetgeving, Tijdschrift voor handelsrecht 2 (2005),
p. 56-66.
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of movables is effected by the transfer of possession (art. 3:90 § 1 BW). In
1996, the Hoge Raad stated that the direct doctrine, the validity of which
the Hoge Raad explicitly founded on art. 3:110 BW, is only applicable to
goods that are delivered through the transfer of possession.85 This is not
to say, however, that art. 3:110 BW itself is reserved for goods that are
delivered in that way.
We can conclude that for the application of art. 3:110 BW there are (no
more than) two requirements:
– the legal relationship between the two persons should have the effect
that what one of them will acquire will be detained by him for the
other; and
– the acquisition has to take place in the performance of that legal relationship.
Furthermore, the scope of art. 3:110 BW is not at all restricted to agency:
it also covers acquisitions on behalf of another in cases of lease (by the lessee), loan (by the borrower), encumbered right (e.g. by the pledge-holder)
etc. The legal relationship underlying the acquisition does not have to be
created by contract: management of the affairs of another, for example,
may create a similar legal relationship. Another example: the detentor of
a thing creates out of that a new thing under orders of the owner of the
original thing: that owner acquires ownership of the new thing pursuant
to art. 5:16 BW, whereas art. 3:110 BW attributes to him the possession of
the new thing.86 See on this subject also below, § 7.3.
4.
Field of application and definitions
4.1.
Field of application
Transfer of property in general is dealt with in art. 3:84 BW: this provision
(which says that a transfer requires delivery pursuant to a valid title by the
person who has the right to dispose of the property) applies to all property
(that is: both things and patrimonial rights, art. 3:1 BW).
In articles 3:89-97 BW (with the exception of art. 3:92 and 3:92a BW)
the various forms of delivery are enumerated; see the following table:
85
86
HR 23-9-1994, NJ 1996, 461 (Kas-Associatie / Drying).
Hartkamp, Compendium, no. 111. See for other examples Losbladige vermogensrecht,
annotation 8 on art. 3:110 BW (J.D.A. den Tonkelaar).
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Article
Object of delivery
Form of delivery
Art. 3:89
Immovable things and other
registered property
Notarial deed intended for that
purpose drawn up between the
parties, followed by its entry in
the public registers provided for
that purpose. Either the acquirer
or the alienator may have the
deed registered
Art. 3:90
Movable things that are unregistered property and under the
control of the alienator
Giving possession of the thing to
the acquirer
Art. 3:91
Things referred to in the preceding
article delivered in the performance of an obligation to transfer
under suspensive condition
Giving the acquirer control over
the thing
Art. 3:93
Rights payable to bearer, the instrument for which is under the
Delivery of the document in the
manner and with the effects specified in articles 90, 91, and 92
Rights payable to order under the
The same as above, provided that
the document is also endorsed
Art. 3:94
Other rights to be exercised
against one or more specifically
determined persons
Either by a deed intended for that
purpose and notice thereof given
by the alienator or acquirer to
those persons, or by an authentic
deed or a registered deed under
private writing without notification thereof to those persons
Art. 3:95
In cases other than those provided
for in articles 89-94
A deed intended for that purpose
Art. 3:96
Delivery of a share in property
Delivery is made analogously to
the delivery of that property and
has analogous effects
Art. 3:97
Future property
(Delivery is made analogously to
the delivery of that property)
Art. 3:90 BW applies to movable things that are unregistered property and
under the control of the alienator. Movable registered property (certain
categories of aircraft and ships) is delivered in the manner specified in
art. 3:89 BW (notarial deed and entry in public registers, see above). Movable things that are not under the control of the alienator are delivered in
the manner specified in art. 3:95 BW: a deed intended for that purpose.
One category of property not dealt with in Book 3 BW is the registered
(inscribed) share. Such a share in a corporation is delivered by a deed, ex-
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ecuted by a notary practising in the Netherlands, intended for that purpose
and drawn up between the parties (art. 2:86 § 1 BW87). The same applies
to a registered share in a private company with limited liability (art. 2:196
§ 1 BW). The articles mentioned specifically list the prescribed contents of
the notarial deed (the title of transfer, number and kind of shares involved,
information on the legal form and location of the legal persons involved,
etc.).
Intellectual property rights are not included in the Burgerlijk Wetboek
(yet), but are dealt with in separate laws. These laws specify the manner in
which these rights are delivered (art. 3:84 BW on transfer in general is applicable). Art. 2 § 2 Auteurswet (Copyright Law) provides that a copyright
is delivered by a deed intended for that purpose. A patent right is delivered
by a bilateral deed, which may be entered in the Patent Registry of the Patent Board, art. 65 Rijksoctrooiwet (Patent Law).
Transfer of a trademark is possible, provided that it is established in
written form (see art. 11 Beneluxwet op de merken (Benelux Trade Mark
Act) and art. 13 Beneluxwet inzake tekeningen en modellen (Benelux Drawings and Designs Act)). Finally, plant breeders’ rights are delivered by a
deed (art. 48 Zaaizaad en Plantgoedwet (Seeds and Planting Materials Act)).
Entry of trademarks and plant breeders’ rights in public registers is possible
and advisable as it has effect against third persons.
4.2.
Definitions
Article 3:3 BW gives a definition of movable and immovable:
1. Immovables are land, unextracted minerals, plants attached to land, buildings
and works durably united with land, either directly or through incorporation
into other buildings or works.
2. All things which are not immovable, are movable.
Even though the article does not state this expressis verbis, the distinction
between movable and immovable only applies to things (corporeal objects),
not to patrimonial rights.88
The distinction between tangible (in Dutch: lichamelijke) and intangible (onlichamelijke) property, which was made in the previous civil code, is
87
88
Book 2 of the Burgerlijk Wetboek relates to legal persons.
See Asser-Mijnssen-De Haan, Goederenrecht 3-I, no. 83.
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not maintained in the code of 1992.89 Obviously, things (art. 3:2 BW) are
tangible and patrimonial rights (art. 3:6 BW) are intangible.
There is not much debate on the status of money in property law, even
though this is far from clear and the subject is an important one. Coins are
certainly to be considered movable things, and therefore they are delivered
by giving the possession of them by the alienator to the acquirer.
The status of bank notes is more difficult: on the one hand, they can
be considered as rights to be exercised against the European Central Bank,
but, on the other, this does not explain why no claim against the ECB remains available to the dispossessed owner when the bank notes are lost (e.g.
through fire). Another problem of the notion of ownership with regard to
bank notes is the fact that the bearer usually does not specify them, whilst
specification is required for ownership.90 The suggestion has been made by
Houtappel – so far, without success – to add a second paragraph to art. 3:1
BW, stating that property that serves as general tender, is money.91
No less complex is the status of electricity, due to its dualistic nature.
The Dutch Supreme Court has ruled in a criminal case that electricity is
susceptible to theft.92 Several authors have warned, however, that this does
not imply that in private law electricity has to be acknowledged as a corporeal object (a thing) and as susceptible to ownership, as is the case in Swiss
and Italian law and reportedly also in Austrian and French law. Consensus
has not yet been achieved, even though most authors agree that the issue
is not an important one.93
The status of gas does not provide similar difficulties. Gas is to be considered a thing, as long as it is contained in a tank, a bottle or a similar
device (because only corporeals susceptible to human control are “things”:
art. 3:2 BW).
89
90
91
92
93
On this see Th.F. de Jong, De structuur van het goederenrecht. Over het afschaffen
van het begrip van de onlichamelijke zaak, het onderscheid tussen rechten en hun
voorwerpen en een opening in het systeem (Thesis Groningen; 2006).
See Snijders / Rank-Berenschot, Goederenrecht, no. 33.
J.C. Houtappel, Geld of vordering in het Nederlands privaatrecht (Thesis Amsterdam;
1996), p. 95. See also A.H.E.M. Wellink et al., De rol van geld in het privaatrecht:
symposium over geld en recht. Ars Notariatus 127 (M.H. Bregstein Stichting and
Stichting tot Bevordering der Notariële Wetenschap; Kluwer: Deventer 2004).
HR 23-3-1921, NJ 1921, 564, W. 10728.
See Asser-Mijnssen-De Haan, Goederenrecht 3-I, no 57. See also M.B.M. Loos, De
energieleveringsovereenkomst. Algemene voorwaarden voor de levering van energie aan
consumenten (Thesis; Kluwer; Deventer 1998), p. 51-59. Loos himself advocates the
view that electricity is a thing and therefore susceptible to ownership.
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Part II:
5.
Which system of transfer is used?
5.1.
Basic characteristics
5.1.1. Unititular concept of the transfer of ownership
Dutch property law adheres to the principle of unititular (uniform) ownership transfer. This means that all rights and powers connected with ownership – such as the right to dispose of the property, the right to revindicate
(provided the property is a thing), the protection against the insolvency
of the transferor (separatism), the right to enjoy the fruits of the property
etc. – pass to the acquirer at one moment in time. Therefore, fragmentation
of ownership in the sense that the transferor is the owner for some purposes while the transferee is the owner for others, is excluded: simultaneous
ownership by different persons with regard to one object (other than joint
ownership thereof) would be detrimental to legal certainty.
However, the notion of relative ownership is not alien to Dutch property
law. For example: annulment of a transfer, by a creditor of the transferor on
the basis of the actio pauliana,94 has the consequence that the transfer has no
effect with regard to the creditor, but is nonetheless valid as far as everyone
else is concerned. It is customary to label the acquirer the relative owner:
to the creditor, the alienator is still owner, but to the rest of the world, the
acquirer is. A similar phenomenon is to be seen in the law of seizure and in
the effects of traditio constitutum possessorium (application of art. 3:90 § 2,
discussed above in § 2.3.2 sub B).
94
See art. 3:45 BW: If a debtor, in the performance of a juridical act to which he is
not obligated, knew or ought to have known that his act would adversely affect the
recourses of one or several of his creditors against his patrimony, the act may be annulled; any creditor whose resourses have been adversely affected by the juridical act
may invoke this ground for annulment, irrespective of whether his claim has arisen
before or after the act. See on this article below, § 8.2.
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5.1.2. The same transfer rules applicable to all kinds of obligations
The general provision on transfer of property – art. 3:84 § 1 BW – determines that the transfer requires delivery pursuant to a valid title by the
person who has the right to dispose of the property. All kinds of legal acts
can function as ‘valid title’: the obligation to transfer ownership pursuant
to a sales contract or a donation (which in Dutch law is also a contract;
art. 7:175 § 1 BW), an obligation to pay damages or to correct unjustified
enrichment, an obligation to pay or give something under a court order, etc.
The notion ‘title’ is commonly understood to mean: a legal relationship (or
legal ground, legal fact) that underlies a transfer and serves as justification
for that transfer.95
5.1.3. Basic transfer requirements
Firstly, the asset involved should be transferable. Art. 3:83 § 1 BW provides
that
[o]wnership, limited rights and debts are transferable, unless this is precluded
by law or by the nature of the right.
This means that all assets are in principle transferable and that this transferability cannot be excluded by agreement.96 The underlying thought is that
the free movement of assets should not be restricted.97
As said above, art. 3:84 § 1 BW provides that the transfer of property
requires delivery pursuant to a valid title by the person who has the right
to dispose of the property. In sum, Dutch law requires for a valid transfer:
(a) a valid title, (b) the right to dispose thereof, and (c) delivery. Those
are constitutive requirements, meaning that the transfer is not valid if one
95
96
97
This definition was introduced in 1974 by A.S. Hartkamp in Het begrip leveringstitel, Weekblad voor Privaatrecht, Notariaat en Registratie 5267 / 5268. See AsserMijnssen-De Haan, Goederenrecht 3-I, nos. 277 ff.; Pitlo / Reehuis, Heisterkamp,
Goederenrecht, no. 113 ff., S.E. Bartels, De receptie van het titelbegrip bij Hartkamp,
Groningen opmerkingen en mededelingen XIX (2003), p. 47-61. See below, § 5.3.
The law makes an exception for debts. The second paragraph of art. 3:83 BW provides: Transferability of debts can also be excluded by agreement between creditor
and debtor.
See Parl. Gesch. Boek 3, p. 314; Asser-Mijnssen-De Haan, Goederenrecht 3-I,
nos. 251-255.
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of those requirements is not met, unless a provision for the protection of
third parties could successfully be invoked.98
(a)
Valid title
As was said in § 5.1.2: the ‘title’ of a transfer is the legal relationship which
underlies and justifies the transfer. The kind of obligations on which a
transfer of ownership can be based, and the consequences of a defective
title for the transfer of ownership, will be dealt with in § 5.3.1 and § 5.3.2
respectively.
(b)
Right to dispose (including good faith acquisition
and regularization)
‘To dispose’ is to perform an act with respect to an asset, by which the asset
is alienated (transferred to a new owner) or is encumbered with a limited
right.99
It was generally agreed that the right to dispose cannot be separated
from the right of the title-holder: the right to dispose cannot be transferred
independently, and neither can it be taken away or limited contractually.100
This point of view is no longer undisputed however. We can leave this matter, which is largely of an academic nature, aside here; for present purposes
it suffices to take the traditional view as correct.101
The principal rule is that the owner is entitled to dispose. This right
to dispose belongs in principle exclusively to him.102 However, the owner
may give permission to another person to dispose of his asset. An example
98
99
100
101
Pitlo / Reehuis, Heisterkamp, Goederenrecht, nos. 100-101. Another possibility is that
a legal condition for the validity of the transfer is fulfilled only afterwards and the
transfer is subsequently regularized ex art. 3:58 BW (see below, sub B).
Pitlo/Reehuis, Heisterkamp, Goederenrecht, no. 135. Van Vliet writes that the right to
dispose may be based on ownership, a legal act or the law (Transfer of movables, p. 155).
One could object that the right to dispose attached to ownership also has a statutory
basis, as does the right to dispose acquired by a legal act. Furthermore, even in the
case where a non-owner is entitled to dispose of property it may be that, in disposing
of the property, he is not exercising a right of his own, but the right of the owner.
Pitlo / Reehuis, Heisterkamp, Goederenrecht, nos. 137-138 and 968.
The traditional view was challenged by L. Groefsema, Bevoegd beschikken over andersmans recht (Thesis, Kluwer: Deventer 1993). See for an overview of current
opinion S.E. Bartels, De titel van overdracht in driepartijenverhoudingen (Thesis; Boom
Juridische uitgever: The Hague 2004), p. 58-59.
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is indirect agency. If the owner orders an undisclosed commercial agent to
sell and transfer an asset, the legal act of sale and transfer will be made in
the agent’s name. By ordering the transaction the owner gives the agent
the right to deliver the asset, but in doing so the agent is not using any
right to dispose of his own: it is the right to dispose of the principal that
the agent exercises.
Another example is the sale and delivery of goods delivered under a
retention of title clause. If there is a practical need for the buyer to resell
the goods before full payment of the price, the seller, who is still the owner,
may give permission to the buyer to sell and transfer his goods. The seller’s
permission enables the buyer to dispose of the seller’s goods,103 but – again –
in doing so the buyer does not dispose of the goods himself: he merely
exercises the right to dispose belonging to the seller.
Furthermore, the right to dispose can stem from a statutory provision
assigning that right to a non-owner. An example is art. 68 Faillissementswet,
providing that the trustee in bankruptcy (in Dutch: faillissementscurator) is
responsible for the management and the settlement (in Dutch: het beheer
en de vereffening) of the bankrupt’s estate. This empowers him to dispose
of the insolvent’s assets.104 Complementary to this provision is art. 23 Faillissementswet, which provides that the debtor loses the power to dispose and
manage his assets when he is declared insolvent.
Another example is to be found in art. 3:248 BW, which gives the
pledgee the right to dispose of the pledged assets, provided that all requirements for execution are fulfilled.105 We will not address the question
whether the trustee in bankruptcy and the pledgee have a right of their
own to dispose of property of the owner (the bankrupt or the pledgor),
or whether they are merely entitled to exercise the right of the owner to
dispose of property.106
As a valid transfer needs to be performed by someone who has the right to
dispose, pursuant to art. 3:84 BW, a transfer of an object by someone who is
102
102
103
104
105
106
Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 137
Van Vliet, Transfer of movables, p. 155-156.
Art. 23 Bankruptcy Act provides that the debtor loses the privilege to dispose of his
assets when he is declared insolvent.
Van Vliet, Transfer of movables, p. 155.
It is no coincidence – as noticed by J.B. Huizink, Insolventie (5th ed.; Kluwer: Deventer 2005) – that art. 23 Faillissementswet entails the loss of the bankrupt’s power
to dispose of and manage his property, whereas art. 35 entrusts the trustee with the
tasks of managing and settling the estate; the power to dispose is not mentioned
here. This may be taken as an indication that the trustee does not have any right to
dispose himself but is merely entitled (e.g. in art. 101 Faillissementswet) to exercise
the right to dispose of the bankrupt’s property.
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not entitled to dispose thereof is void. Nevertheless, such a transfer could be
valid if the acquirer of the property could successfully invoke one of the provisions for the protection of third parties: art. 3:24-26, 36, 86 and 88 BW.
Article 3:86 BW protects the acquirer in good faith of a movable that
was under the control of the transferor, in case that transferor lacks the
right to dispose. Art. 3:86 § 1 BW provides:
Although an alienator lacks the right to dispose of the property, a transfer pursuant to articles 90, 91 or 93 of a movable thing, unregistered property, or a right
payable to bearer or order is valid, if the transfer is not by gratuitous title and if
the acquirer is in good faith.
But the law makes an exception in the case of theft. The third paragraph
of art. 3:86 BW provides:
Nevertheless, the owner of a movable thing, who has lost its possession through
theft, may revindicate it during a period of three years from the day of theft,
unless
(i) the thing has been acquired by a natural person, not acting in the exercise of
a profession or business, from an alienator whose business it is to deal with the
public in similar things, otherwise than at a public sale, on business premises
destined for that purpose, being an immovable structure or part thereof with
the land belonging thereto, and provided that the alienator be in the ordinary
exercise of his business, or
(ii) money or documents payable to bearer or order are involved.
A further condition for the protection of art. 3:86 BW is to be found in
art. 3:87 § 1 BW:
An acquirer, who is asked within three years from his acquisition to identify
the alienator, must, without delay, provide all information which is necessary
to trace that person or which he could have considered as being sufficient for
that purpose at the time of his acquisition. If he does not comply with this
obligation, he may not invoke the protection which articles 86 and 86a afford
to an acquirer in good faith.
This so-called wegwijsplicht (duty to show the way) does not apply to money
(art. 3:87 § 2 BW).
Art. 3:88 § 1 BW is the complement of art. 3:86 BW for registered
property and claims, and according to some authors is also applicable to
movables which were not under the control of the transferor at the time
of the transfer and therefore have been transferred by deed pursuant to
art. 3:95 BW. Its scope is more limited, however, because of the extra con-
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ditions for its application (but note that neither the condition of transfer
for value nor the ‘duty to show the way’ applies in the context of art. 3:88
BW). Art. 3:88 § 1 BW provides:
Although an alienator lacks the right to dispose of the property, the transfer of
registered property, a nominative right107 or other property to which article 86
does not apply, is valid if the acquirer is in good faith and if the lack of the right
to dispose results from the invalidity of a previous transfer, which itself did not
result from the lack of the right to dispose of the alienator at the time.
Articles 3:24, 25 and 26 BW protect the acquirer of registered objects in
good faith against the incompleteness or incorrectness of public registers.
Art. 3:24 § 1 BW provides that
if, at the time of registration of a juridical act to acquire a right to registered
property by particular title, a fact which is also susceptible of entry in the registers was not entered in reference to that registered property, this fact cannot
be opposed to the acquirer, unless he knew it.
However, this does not apply to (art. 3:24 § 2 BW):
(a) facts which according to their nature are susceptible of entry in a register of
civil status, a matrimonial property register or a successions register, even if the
fact cannot be registered in a given instance because the law of the Netherlands
does not apply to it,
(b) placement under and termination of curatorship, entered in the register of
curatorship,
(c) judgments entered in the bankruptcy register or in the register of receivership,
(d) acceptance and rejection of a succession,
(e) prescription.
Neither does the first paragraph of art. 3:24 BW apply to (art. 3:24 § 3 BW):
successions and testamentary dispositions which were not registered at the moment of the registration of the juridical act, but which were thereafter entered
in the registers within three months of the death of the deceased (whether a
testator or not).
107
Nominative rights (in Dutch: rechten op naam) are e.g. claims, debts, intellectual
and industrial property rights. Cf. Art. 3:94 BW on assignment, which has a smaller
scope, as it applies only to rights to be exercised against one or more specifically determined persons.
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Art. 3:25 BW provides that
property by particular title, a fact pertaining to that registered property was
entered in the registers pursuant to an authentic deed in which this fact was
authenticated by a civil servant, the inaccuracy of this fact cannot be invoked
against the acquirer, unless he knew or could have known of the possibility
thereof by consulting the registers.
In addition, art. 3:26 BW provides that
property by particular title, an inaccurate fact pertaining to that registered property was entered in the registers, the inaccuracy of this fact cannot be invoked
against the acquirer by a person who could reasonably have ensured the conformity of the registers with the reality, unless the acquirer knew the inaccuracy
or could have known of the possibility thereof by consulting the registers.
Art. 3:36 BW, the most indefinite provision on third party protection in
the Burgerlijk Wetboek, protects a third party who acted in good faith based
on the existence of a legal relation alleged by another, which in fact never
came into existence, or meanwhile has been changed or annulled. The legal
act, which the third party performed as a result of the alleged legal relation,
could not be opposed against this party. Art. 3:36 BW provides that
a third person who under the circumstances reasonably bases an assumption as
to the creation, existence or extinction of a juridical relationship on a declaration or conduct of another, and has acted reasonably on the basis of the accuracy
of that assumption, cannot have invoked against him the inaccuracy of that
assumption by the other person.
If, for example, A and B draw up a deed for tax purposes, which states that
A owes € 1000 to B whereas in reality he owes only € 500, and B persuades
C to buy his claim against A, showing C the deed, C will be under the false
impression that he receives a claim worth € 1000. As A, by drawing up
the deed, is to blame for the incorrect assumption of C with regard to the
true value of the claim, he is, as regards C, not entitled to hide behind the
verbatim text of the deed: A will have to pay € 1000 to C (but of course B is
contractually liable for this towards A and must compensate A for the € 500
the latter had to pay to C without being indebted therefore to B).
In case a movable is delivered by someone who is not entitled to dispose
thereof, the transferee will not acquire ownership unless he successfully
invokes one of the provisions on bona fide acquisition just mentioned. But
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it is also possible that the transferor obtains the right to dispose of the
movable at a later time, e.g. by buying or inheriting it after the transfer. In
such a case, the invalid transfer can be regularized (in Dutch: bekrachtiging
or convalescentie).108 See art. 3:58 § 1 BW:
Where a legal condition for the validity of a juridical act is fulfilled only after
its execution, but all directly interested parties who could have invoked this
defect have regarded the act as valid during the period between the act and
the fulfilment of the legal condition, the juridical act will thereby have been
regularized.
This regularization provision offers a solution for transfers, the invalidity
if which was caused by lack of right to dispose, by an imperfect delivery, or
by invalidity of the title (causa). If, however, the title was void because of
incapacity of the transferor at the time of the transfer, this cannot be regularized in the event that this person is subsequently capacitated (art. 3:58
§ 2 BW).
Regularization has retroactive effect: the transaction is deemed to have
been valid from the moment of its conclusion.109 However, it is quite possible that someone has acquired a right in the asset during the interval
between that conclusion and the regularization. Suppose that B gives a
painting to C in the year 2006, but C does not acquire ownership because
B was not entitled to dispose of the painting, which he had borrowed from
A. If A would at some later date be prepared to transfer the painting to B, C
could acquire ownership after all, by virtue of regularization. But if it turns
out that A had by then established a right of pledge on the painting for X,
the limited right of the latter would be unaffected by the regularization;
according to art. 3:58 § 3 BW,
[r]ights that have been acquired by third parties in the interim need not be a
bar to regularization, provided that these rights are respected.110
(c)
Delivery
Delivery (in Dutch: levering) is the legal act by which the obligation to
transfer (the title) is actually carried out. The delivery brings about the
transfer of the property involved if all other conditions for a valid trans108
109
110
See Geert Harm Potjewijd, Beschikkingsbevoegdheid, bekrachtiging en convalescentie: een romanistische studie (Thesis; Kluwer: Deventer 1998).
See for a similar example Snijders / Rank-Berenschot, Goederenrecht, no. 406.
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fer are met. In short, delivery is the legal act, transfer is the legal consequence.111
The concept of delivery is regarded as consisting of two elements: (1) an
agreement in which the transferor and the transferee express their common
intention to transfer the asset involved (the transferor declares that he will
transfer ownership of the asset and the acquirer declares that he will accept
ownership thereof), and (2) an act by which the transferor and the transferee
manifest their common intention to transfer.112 The first element could be
qualified as a real agreement (in Dutch: goederenrechtelijke overeenkomst)113
and is elaborated in § 5.7. For the second element, see § 5.4.2.
5.2.
Categorization of transfer system
5.2.1. Causal or abstract?
Under the old civil code of 1838 it was disputed whether the Dutch transfer
system was abstract or causal.114 Not until 1950 did the Hoge Raad decide
the question explicitly in favour of the causal system.115 The new 1992
civil code codified this choice in art. 3:84 § 1 BW by unequivocally requiring that a transfer must be based on a valid title.116 Accordingly, delivery
without a valid title (e.g. after annulment) does not bring about a transfer
of the asset involved.117
111
112
113
114
115
116
117
Parl. Gesch. Boek 3, p. 308; Asser-Mijnssen-De Haan, Goederenrecht 3-I, no. 206;
Pitlo / Reehuis, Heisterkamp, Goederenrecht, p. 69.
Asser-Mijnssen-De Haan, Goederenrecht 3-I, nos. 203-205.
Ibid., no. 206.
Ibid., no. 238. See also J.H. Dondorp and E.J.H. Schrage, Levering krachtens geldige titel: enige grepen uit de geschiedenis van de vereisten voor eigendomsoverdracht (VU uitgeverij; Amsterdam 1991) and A.F. Salomons, 2014 tot 1950. De
geschiedenis tot 1950 van de vertrouwensbescherming bij overdracht van roerende
zaken door een beschikkingsonbevoegde (Thesis; Kluwer: Deventer 1997), Chapter
IX § 1.
HR 5-5-1950, NJ 1951, 1 (Damhof / Staat der Nederlanden). Earlier, in HR 9-2-1939,
NJ 1939, 865 (Woldijk-Nijman), the Hoge Raad had rendered a similar decision, but
this dealt with assignment of claims only.
Asser-Mijnssen-De Haan, Goederenrecht 3-I, p. 207-209; Van Vliet, Transfer of
movables, p. 196-199.
For the transfer of emission rights, no valid title is required according to art. 16:42
Wet Milieubeheer (Environmental Management Act), enacted on January 1st, 2005.
This choice of the legislator in favour of the abstract system was justified by the
argument that acquirers of emission rights have to be sure that they can use them
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5.2.2. Consensual or traditio system?
The entering into a sales contract, which obliges the seller to transfer an
asset to the buyer, does not bring about the transfer of the asset, as would
be the case under French law. The parties need to perform a further legal
act in order to finalize the transfer. The obligation to transfer needs to be
carried out by means of the actual delivery of the asset. Upon delivery the
acquirer is acknowledged as the (new) owner of the asset.118 Thus, Dutch
law has a traditio system.119
5.2.3. Requirement of payment?
Under Dutch law payment is not required for the acquisition by a transfer
based upon a sales contract.
A sales contract brings about two obligations: one for the seller to
transfer (the ownership of) the asset concerned120 and another for the
buyer to pay the price agreed upon.121 Those are separate, although not
completely independent, obligations. The seller transfers the asset to the
buyer based upon an existing obligation to transfer, which is a valid title
for transfer. Thus, the buyer acquires the asset, even if he has not yet
fulfilled his obligation to pay. If the buyer does not pay, the seller could
terminate the sales contract (see for the consequences of termination,
§ 5.3.2 sub C).
However, termination gives the seller no more than a personal claim
against the buyer to return (by retro-transfer) the asset involved. But the
law provides some other ways in which the seller could procure that the
ownership returns to him by operation of law in case of non-payment, or
that the ownership is not transferred to the buyer until he actually pays.
Firstly, the seller could exercise the ‘right of recovery’ (in Dutch: recht van
reclame), which gives proprietary effect to a written termination of a contract by a seller (art. 7:39 BW; see § 5.3.2 sub C and § 5.7). Furthermore, the
seller could stipulate a resolutive condition of non-payment of the agreed
118
119
120
121
(see Memorie van Toelichting (Explanatory memorandum to the Act) 2003-2004,
TK 29 565, no. 3, p. 75-76). Critical of this choice is M.H. Koster, Handel in emissierechten: het causale stelsel uitgesloten?, Weekblad voor Privaatrecht, Notariaat en
Registratie 6617 (2005), p. 301-305.
Art. 7:9 § 1 BW provides: The seller is obliged to transfer the ownership of the thing
sold and to deliver it with its accessories. (…).
Art. 7:26 § 1 BW provides: The buyer is obliged to pay the price.
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price (see § 5.3.2) or enter the contract under a reservation of title clause.
Art. 3:92 § 1 BW provides:
Where a contract is intended to reserve to one party the ownership of a thing
that is placed under the control of the other party, until a performance owed
by the latter has been made, the former is presumed to obligate himself to the
transfer of the thing to the latter under a suspensive condition of that performance.
Obviously, the transferor is entitled to suspend the execution of his obligation to deliver in case the transferee does not pay the price, assuming that
the transferee was obliged to perform before the transferor had to perform,
or both of them had to perform simultaneously, and the transferor has good
reason to fear that the transferee will not in fact pay. This follows from
art. 6:262-263 BW (the enactment of the so-called exceptio non adimpleti
contractus).
5.3.
Valid obligation
5.3.1. Obligations on which transfer can be based
Beforehand, a short outline of the place of acquisition through transfer in
the system of acquisition in general may be helpful.
Art. 3:80 § 1 BW provides that ‘property is acquired by general and by
particular title’. Acquisition by general title is acquisition by which a whole
patrimony or a proportional part thereof, passes to another.122 “Property is
acquired by general title through inheritance,123 fusion of patrimonies,124 or
succession to the patrimony of a legal person, which has ceased to exist”125
(art. 3:80 § 2 BW). In the case of acquisition by general title the acquirer
continues the position of the alienator, i.e., the acquirer is bound by the
personal rights and obligations that previously belonged to the patrimony
of the alienator.126
Acquisition by particular title is the acquisition of one or more particular assets previously belonging to someone else.127 According to art. 3:80
§ 3 BW,
122
123
124
125
126
127
Art. 4:182 in conjunction with art. 3:80 § 2 BW.
Art. 1:93 and 1:94 BW.
Art. 2:309 in conjunction with 3:80 § 2 BW.
Ibid.
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[p]roperty is acquired by particular title by transfer, prescription, expropriation
and in any other manner of acquisition of rights provided by law according to
their kind.128
In the case of acquisition by particular title the acquirer generally does
not have to respect the personal obligations of the transferor with respect to the object. However, Dutch law recognizes the exception of the
qualitative obligation (in Dutch: kwalitatieve verplichting), which is a contractual stipulation pertaining to registered property; this ensures – provided a notarial deed is drawn up of the contract between the parties,
followed by its entry in the public registers – the devolution of certain
personal obligations to tolerate or refrain from certain actions by persons
who subsequently acquire that property by particular title, or who subsequently acquire a personal or residual right in that property (art. 6:252
§ 1 BW129).
Moreover, the law obliges the transferee to respect certain personal
obligations. For example, the acquirer has to respect tenancy agreements
(art. 7:226 BW, the enactment of the famous principle emptio non tollit locatum), and (farmland) lease agreements (art. 34 Farm Lease Act
(Pachtwet)).130
The acquisition by particular title by transfer could be the result of a
diversity of obligations. Usually the obligation to transfer will arise from
a synallagmatic (obligatory) contract, such as sale, barter or partnership,
or from a contract by gratuitous title like a gift (in Dutch: schenking; see
art. 7:175 ff. BW). The obligation to transfer could also stem from a unilateral legal act, such as a legacy (art. 4:117-129 BW).
Furthermore, the obligation could stem from the law:131 for example, the
obligation to contribute all gifts, received from the deceased, to the estate
(art. 4:229 BW), the obligation to return by transfer after undue payment
128
129
130
131
A form of derivative acquisition by particular title of a movable, not explicitly
mentioned by art. 3:80 § 3 BW, occurs when a thing is delivered on a resolutive
condition. Where delivery is made in the performance of a conditional obligation,
the right so acquired is subject to the same condition as the obligation (art. 3:84
§ 4 BW). Thus, the asset is transferred to the acquirer in the case of a delivery on
a resolutive condition. But the moment when the condition is fulfilled, the conditional right returns to the transferor. This is a derivative acquisition of the right as
it belonged to the person to whom it was delivered on the resolutive condition.
See on this qualitative obligation N.C. van Oostrom-Streep, De kwalitatieve verplichting (Thesis; Boom Juridische uitgevers: The Hague 2006).
Asser-Mijnssen-De Haan, Goederenrecht 3-I, p. 155.
HR 17-11-1967, NJ 1968, 42 (Pos / Van den Bosch).
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of a thing,132 or the obligation to undo the performances that have already
been made at the time of the fulfilment of a resolutory condition.133 A very
important statutory obligation to transfer is found in art. 6:271 BW:
The setting aside of a contract liberates the parties from the obligations affected
by it. To the extent that these obligations have already been performed, the
legal ground for this performance remains intact, but an obligation arises for
the parties to undo the prestations they have already received.
A tort (unlawful act) is another important example of a legal obligation
that functions as a valid title for transfer (i.e. the transfer of a thing by way
of the payment of damages).134 The same applies to the obligation to pay
damages in case of unjustified enrichment (art. 6:212 BW). It is debated,
however, whether the payment should be regarded as damages, but this does
not need to concern us here.
Finally, the obligation to transfer could arise from a more complex legal
relation, i.e., two of more successive obligatory contracts, the so-called
ABC contracts.135 See, for this subject below, Section 7.
5.3.2. Defects regarding obligation and effects on transfer
The validity of the transfer and the validity of the real agreement effectuating it depend upon the validity of the underlying contract (doctrine
of causality), witness the requirement of ‘delivery pursuant to a valid title’
(art. 3:84 § 1 BW). The legal act underlying the title could be void or
annulled, or in case the legal act underlying the title is a contract, this
contract could be terminated.
132
133
134
135
Art. 6:203 § 1 BW: A person who has given property to another without legal ground
is entitled to reclaim it from the recipient as having been paid unduly.
Art. 6:24 § 1 BW: After fulfilment of a resolutory condition, the creditor must undo
what has already been performed, unless the content or the necessary implication
of the juridical act produces a different result.
See HR 18-6-1971, NJ 1971, 408.
Example: A sells his house to B, B sells the same house to C, under the understanding
that A will deliver the house directly to C on the basis of the combined title AB-BC.
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 113 and S.E. Bartels, De titel van
overdracht in driepartijenverhoudingen (Thesis; Boom Juridische uitgevers: The Hague
2004).
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65
Void or annulled titles
The title could prove to be void from the beginning. The title could also be
annulled prior to delivery or after delivery has taken place. As annulment
“has retroactive effect to the time the juridical act was executed” (art. 3:53
§ 1 BW), the annulled title is considered to be void from the beginning.
Legal acts are void in the following cases:
– The legal act has not been performed in the prescribed form (unless the
law produces a different result); art. 3:39 BW.
– The legal act is by its content or necessary implication contrary to good
morals or public order; art. 3:40 § 1 BW.
– The legal act constitutes a violation of an imperative statutory provision
(unless the provision is intended solely for the protection of one of the
parties to a multilateral juridical act, in which case the act may only be
annulled provided that the necessary implication of the provision does
not produce a different result; art. 3:40 § 2 BW. Statutory provisions that
do not purport to invalidate juridical acts that are contrary to them are
not affected by this rule; see art. 3:40 § 3 BW.
– The legal act was performed by an incapable person and was unilateral,
provided it is not addressed to one or more specifically determined persons; see art. 3:32 BW.
Legal acts are annullable in the following cases (the enumeration is not
complete):
– The legal act was performed by a person who lacked legal capacity
(art. 3:32 BW, see above),
– The legal act was performed by someone whose mental faculties are
permanently or temporarily impaired, provided it is unilateral and not
addressed to one or more specifically determined persons; see art. 3:34
BW,
– The legal act was entered into as a result of a threat, fraud or abuse of
circumstances; see art. 3:44 BW,
– The legal act was entered into as a result of an error (mistake); see
art. 6:228 BW,136
136
The German concept of Irrtum über die Zahlungsfähigkeit (error concerning the solvency of the other party) is not known to Dutch law. Error concerning the person of
the other party in general, however, is recognized and even placed on an equal footing with other kinds of errors (examples of error concerning the person: mistaken
identity, error concerning the religion, the morality, the profession, the abilities etc.
of the other party). Author’s comment: I have not been able to find any court decision in which a contract was annulled because one of the parties had incorrect ideas
about the solvency of the other party. The possibility to annul a contract on that
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– The legal act (contract) was in furtherance of an already existing juridical relationship between the parties: the act can in principle be
annulled if this relationship does not exist; see art. 6:229 BW,
– The legal act was harmful to the creditors of the alienator (actio pauliana);
see art. 3:45-48 BW and art. 42 Faillissementswet (Bankruptcy Act).
In the case of a void title or a title annulled prior to or after delivery, the
transfer is (in the latter case in hindsight) based upon an invalid title. Consequently, the transfer is invalid and the transferor is still the owner of the
asset, provided he was the owner to begin with.137 This effect is the essence
(and the raison d’être) of the principle of causality. However, art. 3:53 § 2
BW provides that
[t]he judge may, if so demanded, refuse to give effect to an annulment in whole
or in part, if the juridical act has already produced effects that can only be undone with difficulty. He may order that a party who is prejudiced by his decision
be compensated by a party who unjustly benefits from it.
The Travaux Préparatoires of the Burgerlijk Wetboek indicate that this power
of the judge is not to be used except for exceptional cases.138 Moreover, in
the case of abuse of circumstances and influence of error the judge has the
power to adapt – instead of nullify – the contract under special circumstances. Art. 3:54 § 2 BW provides that
instead of pronouncing the annulment for abuse of circumstances, the judge
may, upon the demand of one of the parties, modify the effects of the juridical
act to remove this prejudice.
See art. 6:230 § 2 BW for a similar power of the judge in the cases meant
in art. 3:228-229 BW (see above: contracts entered into as a result of error or contracts in furtherance of an already existing juridical relationship
between the parties in case this relationship does not exist).
In instances where the judge uses this power to modify the effects of the
contract, a valid title for transfer remains. Furthermore, the transferor and
137
138
basis would, in my opinion, be an unjustified infringement on the paritas creditorum,
and would furthermore be at odds with the possibility to exercise the right of recovery (art. 7:39 BW, see below § 5.7) or to stipulate another security instrument like a
reservation of title, which is nothing other than a safeguard against the insolvency
of the other party.
The retroactive effect of annulment is irrelevant if the alienator was, for example, a
thief.
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the transferee are entitled to confirm the validity of the void or avoidable
transfer (art. 3:58 BW).
(b)
Obligations that do not constitute valid titles for transfer
Article 3:84 § 3 BW mentions two kinds of obligations that do not provide
a valid title for transfer:
A juridical act that is intended to transfer property for purposes of security or
that does not have the purpose of bringing the property into the patrimony of
the acquirer after transfer, does not constitute a valid title for transfer of that
property.
The purpose of the provision – usually referred to as the prohibition on fiduciary transfer (in Dutch: fiduciaverbod) – is to guarantee the restricted
system of absolute rights by preventing ownership or another right from
being divided into absolute rights other than those recognized by law. The
provision has been widely debated (most authors recommend its removal
from the BW) and in 1995 the Hoge Raad chose to adopt a restricted interpretation of its purpose.139
Art. 3:85 BW mentions two other obligations that do not provide a
valid title for transfer. However, by operation of law those obligations are
converted into obligations that do provide a valid title for transfer. Art. 3:85
§ 1 BW provides that
[a]n obligation which is intended to transfer property for a certain specific period is deemed to be an obligation to establish a usufruct upon the property
during that specific period.140
And the second paragraph of this article provides that
[a]n obligation that is intended to transfer property under a suspensive term is
deemed to be an obligation to transfer the property immediately, and establishes
139
140
Asser-Mijnssen-De Haan, Goederenrecht 3-I, no. 241. See HR 19-5-1995, NJ 1996,
116 (Mr. Keereweer q.q.-Sogelease) and HR 18-11-2005, NJ 2006, 151 (BTL / Van
Summeren). See also S. de Groot, Fiduciary Transfer and Ownership, in: Rules for the
Transfer of Movables. A Candidate for European Harmonisation or National Reforms?
Schriften zur Europäischen Rechtswissenschaft 6 (Wolfgang Faber and Brigitta
Lurger, eds.; Sellier european law publishers: Munich 2008), p. 161-173.
See W.J. Zwalve, Simplex et perpetuum: beschouwingen over eigendom en tijd (Boom
Juridische uitgevers: The Hague 2006).
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simultaneously a usufruct upon the property in favour of the alienator during
the relevant period.
The latter provision could be criticized as an infringement on the autonomy
of the parties, as the alienator intended to give up his ownership but the
law forces him to maintain ownership on behalf of the other party, who,
contrary to his wishes, does not receive ownership but (merely) the right
of usufruct.141
(c)
Termination of a contract
The termination of a contract does not have retroactive effect (art. 6:269
BW). Neither does the termination of the contract return the ownership of
the asset to the transferor by operation of law. This is because the termination of the contract does not affect the validity of the title as it existed at
the moment of the transfer.
The termination of the contract brings about a new obligation – which
forms a statutory title – for the acquirer to return (retro-transfer) the asset
to the transferor (art. 6:271 BW). Thus, the original alienator merely has
a personal claim against the acquirer of the asset, the weakness of which
manifests itself if the acquirer is declared bankrupt before the performance
of the obligation to retro-transfer the property.
The situation is different in the case of the fulfilment of a resolutive
condition of a contract. Like termination, the fulfilment of a resolutive
condition does not have retroactive force (art. 3:38 § 2 BW). But, as said
before, where delivery is made in the performance of a conditional obligation, the right so acquired is subject to the same condition as the obligation
(art. 3:84 § 4 BW). Thus, the conditional right returns to the transferor by
operation of law at the moment when the condition is fulfilled.
The same applies to the assertion of the right of recovery by the seller
of a movable (art. 7:39 BW): ownership returns to the seller automatically, but without retroactive force. If the buyer has already transferred the
property for value to a third acquirer in good faith before the seller asserted
his right of revindication, the third acquirer is protected by art. 7:42 BW
(note that this transfer was made by someone who was entitled to dispose
of the property, as the subsequent revindication has no retroactive effect;
the protection of art. 3:86 BW is therefore not applicable).
141
See on art. 3:85 BW Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 128 and Snijders / Rank-Berenschot, Goederenrecht, no. 433.
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Delivery
5.4.1. Dogmatic basis
In the new Burgerlijk Wetboek of 1992, the principle of publicity is maintained as a cornerstone of property law, in which legal certainty is crucial
in view of the drittwirkung of absolute rights. Above, in § 1.2.1, two examples are given of provisions in the field of transfer where the importance
which the Dutch legislator still attaches to the principle is visible: transfer
of movables requires the transfer of possession and assignment of claims
requires notice thereof to the debtor (however: since October 2004 another form of assignment has been introduced, in which a claim may be
transferred without notice to the debtor. The principle of publicity is not
abandoned here, however, for this kind of assignment has to be performed
by an authentic deed or a registered deed under private writing).
Obviously, the principle of publicity is frequently under pressure, especially due to the rise of (relatively) new instruments in the field of finance
and security: fiduciary transfer, financial leasing, factoring, securitization
etc.: examples of phenomena in which outsiders cannot tell who owns the
objects with which they are confronted.142
Publicity has, so far, not been sacrificed altogether, even though the
legislator is not averse to facilitating the new instruments (witness the just
mentioned introduction of ‘silent assignment’ for the benefit of factoring
and securitization; see above, § 1.2.1). The Europeanization of Dutch law
plays a role too: in the implementation legislation concerning the Collateral Directive of the EU the prohibition on fiduciary transfer (art. 3:84 § 3
BW) has been excluded for repossessions (see above, § 3.4).
Principles are always balanced against other principles. Many provisions
of property law are the result of a compromise between publicity and the
need to favour and promote undisturbed trade. Therefore, it is not possible
to assess the ‘effectiveness’ of the rules that require publicity: the ultimate
goal of the legislator is not publicity in itself, but the simultaneous advancement of the various principles at stake to establish some kind of optimum.
142
In the first two examples, there is a separation of legal ownership and economic
ownership. Factoring and securitization are both characterized by the fact that the
person collecting payment, from the debtors of the claims involved, is not the eventual beneficiary of the payment (in the case of securitization it is customary for the
originator to maintain responsibility, as the servicing agent, to collect the payments
of the claims).
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5.4.2. Forms of delivery
As said, the concept of delivery is regarded as consisting of two elements:
(1) the real agreement and (2) the act by which the transferor and the
transferee manifest their common intention to transfer. The law prescribes
certain formalities for the manifestation of the common intention to transfer. Art. 3:39 BW provides that “unless otherwise provided by law, legal
acts, that are not performed in the required form, are void”. Thus, if those
formalities are not observed, the delivery is void. Consequently, the transfer
is void as well (art. 3:84 § 1 BW).
The formalities required for a transfer vary according to the kind of asset
to be transferred. The formalities required for the transfer of movables differ
with respect to (a) movables that are under the control of the transferor, (b)
movables that are not under the control of the transferor and (c) movables
that are registered objects.143
(a)
Movables within the control of the transferor
Article 3:90 § 1 BW provides that ‘delivery required for the transfer of
movables that are unregistered property and that are under the control of
the alienator is made by providing possession of the thing to the acquirer’.
The article applies only where the transferor has power over the thing. The
term ‘power’ in this article means direct possession (actual physical power)
as well as indirect possession (power through a detentor). There are different ways in which possession may be provided (see also above, § 2.3).
(i)
Actual delivery
Art. 3:114 BW provides that
[a] possessor transfers his possession by enabling the acquirer to exercise such
control over the property as he himself was able to exercise over it.
The easiest way to provide possession is the handing over of the object, e.g.
a bicycle can be delivered by handing over the bicycle. But possession can
also be provided by any other act that gives direct possession over the ob143
Certain ships and aircraft. See on the transfer of securities M. Haentjens, Harmonisation of Securities Law. Custody and Transfer of Securities in European Private Law.
Private law in European Context Series 11 (Thesis; Kluwer Law International: Alphen aan den Rijn 2007).
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ject according to common opinion. Such an act could be the handing over
of objects, which in turn gives direct possession over the object, e.g. the
bicycle could also be delivered by handing over the keys of the bicycle lock
(traditio symbolica). Or such an act could be the permission of the transferor
to the transferee to take possession of the object, e.g. the bicycle could be
delivered by taking the bicycle out of the bicycle-rack.144
Any other act (than the handing over of the object) should not be
regarded as a separate kind of fictitious delivery (see below, sub A2): if it
gives the acquirer direct control over the object in question, it is actual
delivery. Whether somebody detains property and whether he does so for
himself or for another, is determined according to common opinion, taking
into account the following rules and, otherwise, the facts as they appear
(art. 3:108 BW).
See also the following decision:145 a building contractor left a building site, which was subsequently taken over by the contracting authority,
which, as agreed upon between them, took possession of the building material left behind by the building contractor: according to the Hoge Raad, this
procedure constituted delivery of the building material by actual delivery.
(ii)
Fictitious delivery
Article 3:115 BW provides that
bilateral declaration without material acts is sufficient for the transfer of possession:
(a) where the alienator possesses the thing and henceforth detains it for the
acquirer by virtue of a stipulation made at the time of delivery;
(b) where the acquirer was detentor of the thing for the alienator;
(c) where a third party detained the thing for the alienator and detains it for
the recipient after the transfer. In the last event possession does not pass until
the third party has acknowledged the transfer or has been notified of it by the
alienator or acquirer.
In short, art. 3:115 BW defines the constitutum possessorium (a), the traditio
brevi manu (b) and the traditio longa manu (c).
Constitutum possessorium (art. 3:115 (aa) BW) is defined as the form of
delivery where the transferor is the possessor of the thing and the parties
agree that the transferor will henceforth hold the thing for the transferee
144
145
Pitlo / Reehuis, Heisterkamp, Heisterkamp, Goederenrecht, no. 225. See HR 11 January 1952, NJ 1952, 77.
Hoge Raad 8 June 1973, NJ 1974, 346.
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as a detentor. As the object remains in the hands of the transferor, a delivery constitutum possessorium is ‘invisible’ to third parties. Because of this
infringement of the principle of publicity the effect of such a delivery is
restricted. This is effected in two provisions: art. 3:90 § 2 BW (with regard
to delivery constitutum possessorium by a possessor) and art. 3:111 BW (with
regard to delivery constitutum possessorium by a detentor):
– Art. 3:90 § 2 BW provides that delivery of a thing which remains in the
hands of the alienator has no effect with respect to a third person who
has a prior right to the thing, until the time when the thing has come
into the hands of the acquirer, unless the third person has consented
to the alienation.
– Art. 3:111 BW provides that a person who has begun detention for
another pursuant to a juridical relationship continues to do so under the
same title, so long as no change is apparent in his title that results either
from an act by the person for whom he holds or from the latter’s right
having been contested. Consequently, a detentor of an asset cannot, in
principle, turn or convert his detention into possession, nor can he turn
his detention for a certain person into detention for another.146
Both provisions are based on the argument that a transferee who does not
insist on acquiring actual power over the object involved, does not deserve
the normal third party protection against the transferor lacking the privilege to dispose, as long as he leaves the object involved in the hands of the
transferor.147 The difference between the two provisions is that art. 3:90
§ 2 BW nullifies the delivery constitutum possessorium only as against third
parties having a prior right in the object, whereas art. 3:111 BW nullifies
the transfer of possession entirely.
Delivery constituto possessorio is not only used in cases where the delivered object has to remain in the hands of the deliverer (as in the case when
A sells a car to B, parties want to perform the delivery immediately, but the
car itself still has to be made ready for use by A before B can acquire actual
possession148). It also serves as a common method of delivery in cases where
future movables are transferred.149
146
147
148
The rule that a detentor cannot turn himself into a detentor for a third person has
been clearly expressed in HR 22-5-1953, NJ 1954, 189 (Sio / De Jong), HR 29-9-1961,
NJ 1962, 14 (Smallingerland / Picus) and HR 8-6-1973, NJ 1974, 346 (Nationaal
Grondbezit / Kamphuis). See Van Vliet, Transfer of movables, p. 146.
Van Vliet, Transfer of movables, p. 145. See Parl. Gesch. Boek 3, p. 384-385.
Of course, the transferor has to hand over the delivered object on a later date, agreed
upon by the parties. But he has recourse to the right of retention in case the transferee would not fulfil his obligations. If e.g. it was agreed that the latter would pay the
purchase price before the property would actually be handed over, the transferor is
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Suppose A sells a car to B that does not yet belong to A (maybe it still
has to be manufactured, or maybe it already exists but has not yet been
acquired by A); delivery to B through constitutum possessorium is not yet
possible, as A does not have possession. But they can agree that possession
is to shift to B as soon as it is acquired by A: this is called delivery through
‘anticipated constitutum possessorium’. At the moment the car is acquired by
A, both possession and ownership pass to B ipso iure, without any additional
acts having to be performed by either A or B.
It should be noted that there is an alternative method of delivering
future movables: delivery by means of a deed intended for that purpose.
See art. 3:95 BW, which is meant for the delivery of movables not under
the control of the transferor, for which reason delivery through transfer of
possession is no option. See further on art. 3:95 BW below, § 5.4.2 sub B.
This form of delivery is in particular intended for cases when the owner of
a stolen object wants to transfer the ownership thereof, e.g. to his insurance
company, but is unable to do this through transfer of possession.
In the case of traditio brevi manu (art. 3:115 (a) BW) the asset to be delivered is already held by the transferee. Thus, whereas a traditio constitutum
possessorium turns the possessor (transferor) into a detentor, delivery brevi
manu turns the detentor (transferee) into a possessor. This would occur
when A sells a movable on approval to B and B decides to keep it, informing A that he wants to finalize the sale; delivery by mere agreement takes
the place of actual delivery, as A had already handed over the movable to
B in order for B to be able to try it.
This form of delivery is open to non-possessors as well (contrary to
the delivery by constitutum possessorium). Suppose A loans a painting to
museum B, and at a later date B loans it to museum C. The latter museum
informs B of its desire to buy the painting, and B agrees (forgetting that the
painting was not in her property). B and C will most probably choose delivery by mere agreement, i.e. brevi manu, as the paining was already in the
hands of C. This would give possession of the painting to C, even though
B never had possession of the painting. We will return to this complicated
matter shortly.150
149
149
150
allowed to suspend the performance of his obligation to surrender the property to the
transferee until payment of the debt by the latter; see art. 3:290 j° art. 6:262 BW.
See on transfer of future goods, and in particular the aspect of time (do delivery
and transfer have to coincide?), J.H.M. van Swaaij, Beschikken en rechtsovergang. De
temporele dimensie van de overdracht: levering van toekomstige goederen, levering onder
eigendomsvoorbehoud en levering onder voorbehoud van eigendomsherkrijging (Thesis;
Boom Juridische uitgevers: The Hague 2000).
See Hoge Raad 25 September 1953, NJ 1954, 190, and Pitlo / Reehuis, Heisterkamp,
Goederenrecht, no. 237.
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Traditio brevi manu is also possible in the case of a non-contractual delivery obligation. Suppose B is obliged to re-deliver a movable to A, from
whom he has bought it but who has subsequently terminated the sales contract on the basis of non-performance by B. A and B may choose whichever
delivery method they deem suitable. In case the movable is (still or already)
in the hands of A (either because A had delivered it through constitutum
possessorium to B or because B had brought the thing back to A for repairs),
retro-delivery brevi manu would be easiest.
The traditio longa manu151 (art. 3:115 (a) BW) is a form of delivery that
covers the situation in which the asset to be transferred is in the custody of a
third person. The third party does not have to agree with the change in possession. To be valid the traditio longa manu must either be acknowledged by the
third party or notice must be given to him by the alienator or acquirer. As
notification suffices, the third party is unable to block the transfer of possession. Without, or even against, his will his detention for the transferor
will be converted into detention for the acquirer. However, he will retain
all contractual rights he had against the transferor.
The notification is ‘form free’, which means that it can be made in any
form (see art. 3:37 BW): in writing, by telephone, through e-mail etc. As
to its content: the notification would be to the effect that the detentor is
henceforward not to detain for the transferor but for the transferee.152 Obviously, the notification has to be clear about the exact object to which it
refers, as well as the identity of the transferee (even though the notification
can be given by the latter as well as by the transferor).
As always, the delivery is not accomplished – and therefore possession
and ownership do not pass – until all formalities required for the delivery
are completed. This implies that traditio longa manu is only fulfilled when
parties have agreed upon transfer of possession and notification thereof is
given to the detentor. Notification and transfer therefore coincide, as the
other formality, the “bilateral declaration without material acts” purporting
to transfer of possession, logically has to have been performed before the
notification.153
Although a detentor cannot deliver by way of constitutum possessorium
(due to the prohibition of interversion of art. 3:111 BW), he is able to
151
152
153
NB: The modern use that Dutch law makes of the term traditio longa manu does
not correspond with the term’s original meaning; Van Vliet, Transfer of movables,
p. 142-143.
Unlike some other legal systems, Dutch law has no alternative for this kind of delivery. In particular, assignment is not an option for movable things, as this form
of delivery is reserved for “rights to be exercised against one or more specifically
determined persons” (see art. 3:94 BW).
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deliver by way of traditio brevi manu or traditio longa manu. A detentor does
not have the power to dispose (with the exception of, e.g., the agent and
the pledgee, see above), but this defect could be rectified by art. 3:86 BW,
which protects the transferee in good faith against a transferor’s lack of
privilege to dispose of movables that were under the control of the transferor.154
Neither does the detentor possess the thing. Therefore, he is not able
to transfer possession to the acquirer. However, art. 3:90 § 1 BW does not
require the ‘transferor’ to transfer possession, but merely to provide (give)
possession. This covers all instances of transfer of possession, and includes
cases in which a detentor provides another with the actual power over a
thing. In the latter case the transferee will ‘originally’ acquire possession of
the thing, as a result of occupation. Therefore, it is said that the acquirer
has been provided with the possession of the thing, although there has been
no transfer of possession. Thus, a factual handing over of the object by a
detentor is sufficient to meet the requirement of art. 3:90 § 1 BW.
Strictly speaking, fictitious delivery (as meant in art. 3:114 BW) is not
available to a detentor, because it is a form of transferring possession. However, a detentor may provide possession in a way comparable to traditio
brevi manu or traditio longa manu as long as it gives the acquirer the power
over the thing required by art. 3:90 § 1 BW. Providing possession in a way
comparable to constitutum possessorium is not sufficient, because in that case
the actual power remains with the transferor.155
Sometimes a fourth form of fictitious delivery is recognized: traditio sine
manu. The term, which is not mentioned in the Burgerlijk Wetboek, is used
to indicate the delivery between two people living together, married or
unmarried. If a husband makes a gift of furniture to his wife, any physical
act of moving the furniture is unnecessary. Art. 3:114 BW does not fit this
situation, for the husband does not provide his wife with the power he previously had over the furniture. His physical power over the things remains
intact and his wife already had the same physical power before the transfer
of possession.156 See above, § 2.3.
The agreement mentioned in art. 3:115 BW is not the real agreement,
but rather the agreement on the transfer of possession. The requirement
of providing possession should be distinguished from the legal act of transfer, the real agreement, whether the provision of possession takes place by
way of actual of fictitious delivery. The transfer of possession – actual or
fictitious – needs an agreement. But this agreement relates solely to the
transfer of possession and it is therefore not to be confused with the real
154
155
156
See § 5.1.3 sub B.
Ibid., p. 143-144.
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agreement, which is an agreement about the transfer of ownership rather
than possession.157
A special form of transfer is the transfer through the delivery of documents in which ownership of goods is ‘embodied’: bills of lading, warehouse warrants etc. Documents like these are made in the form of bearer
documents or order documents. See, on the delivery of these documents,
art. 3:93 BW:
Delivery required for the transfer of a right payable to bearer, the instrument of
which is under the control of the alienator, is made by delivery of the document
in the manner and with the effects as specified in articles 90, 91, and 92. The
same applies to the transfer of a right payable to order which is under the control
of the alienator, provided that the document is also endorsed.
In the document, the carrier or depositary declares that he will deliver the
(movable) goods concerned to the bearer or order of the documents. In this
way, transfer of possession is effected through the transfer of the documents,
and thereby also the transfer of ownership (art. 3:90 § 1 BW).158 See, on
warehouse warrants, art. 7:607 BW (in the Title on Deposit); and on bills of
lading, art. 8:399 and 8:916 BW (Book 8 is titled Traffic and Transport).
Other forms of documents of title, recognized in Book 8 BW, are the
Delivery order (document issued by the carrier after the withdrawal of the
bill of lading, which entitles the bearer of the document to the delivery of
the goods mentioned in the bill of lading; art. 8:482) and the CT document
(art. 8:44 ff.).
These documents still have to exist in paper form; electronic bills of
lading etc. have not yet found their way into the Burgerlijk Wetboek. The
benefits of the introduction of electronic equivalents of paper documents
are widely acknowledged, but there is not yet consensus on the way to deal
with the practical implications of a possible abolishment of the ‘requirement of paper.’159
157
158
159
Ibid., p. 137.
See Snijders / Rank-Berenschot, Goederenrecht, no. 243, and especially A.J. van der
Lely, Levering van roerende zaken door middel van een zakenrechtelijk waardepapier
(Thesis; Kluwer: Deventer 1996).
See e.g. A.M. Brakel, Electronic Bills of Lading, Over een elektronisch van het
papieren cognossement, Tijdschrift Vervoer & Recht (2000), 129 ff. and G.J. van der
Ziel, Naar de afschaffing van het papieren cognossement, een case studie, in: R.E.
van Esch, J.W. Winter & G.J. van der Ziel (eds.), Afscheid van papier, handelsrecht en
moderne technologie, Preadvies van de Vereeniging ‘Handelsrecht’ (Deventer: W.E.J.
Tjeenk Willink: 2001), 19 ff.
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In all the provisions just mentioned, the ‘technique’ is the same: the
delivery of the document before the delivery of the goods mentioned therein
counts as the delivery of these goods. This implies that the transfer of the
goods by delivery of the goods themselves (instead of the document) remains a possibility if the document has not (yet) reached the addressee.160
(b)
Movables not within the control of the transferor
Article 3:90 § 1 BW requires the transferor to provide the acquirer with
possession of the thing for the transfer of a movable. All forms of delivery
involve a transfer of possession, and accordingly a derivative acquisition of
possession. But when the thing is not within the power of the owner, for
example as a result of theft, the owner cannot provide possession.
However, there is a practical need to be able to transfer ownership in
these instances, especially to the insurance company (insurance policies
usually make payments in the case of theft conditional upon the transfer
of the ownership of the stolen object). Therefore, art. 3:95 BW enables the
owner to transfer ownership by drawing up a deed. This deed contains the
mutual will to transfer the ownership of the thing, that is, the real agreement.161 Art. 3:95 BW provides:
In cases other than those provided for in articles 89-94 and without prejudice to
articles 96 and 98, property is delivered by a deed intended for that purpose.
(c)
Movable registered objects
Pursuant to art. 3:89 § 4 BW, movable registered objects are delivered in
the same manner as immovables (the provisions of § 1-3 apply mutatis
mutandis). This means that a notarial deed intended for that purpose has
to be drawn up between the parties, followed by its entry in the public
registers provided for that purpose. This applies to registered sea vessels
and river crafts (art. 8:199 § 1 and art. 8:790 § 1 BW), registered aircrafts
(art. 8:1306 § 1 BW) and any encumbered rights on these things (hypothec,
usufruct etc.).
160
161
Nevertheless, if a bill of lading has been issued only the rightful bearer is entitled to
demand delivery of the goods vis-à-vis the carrier (art. 8:940 BW).
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5.5.
Registration
There are only two categories of movables for which transfer is effected
(constitutively) through registration: certain ships (registered sea vessels
and river craft, art. 8:199 § 1 and art. 8:790 § 1 BW), and certain aircraft
(registered aircraft, art. 8:1306 § 1 BW): see above, § 5.4.2 sub C.162 They
constitute movable registered property (Registered property is property the
transfer or creation of which requires entry in the public registers provided for
that purpose; art. 3:10 BW).
The public registers, in which the transfer of ownership (and encumbrance with hypothec) of registered ships and aircraft has to be published,
are the same registers as those in which transactions with regard to immovable property are published; see art. 8:191 and art 8:1300 sub d BW j°
art. 3:16 ff. BW. The public service responsible for maintaining the public
register for private law transactions is combined with the service that is
responsible for public law registration (including the drawing up of a system
of maps), the so-called Kadaster. Together, they form the Dienst voor het kadaster en de openbare registers (Service for the Kadaster and public registers),
usually merely called Kadaster. Detailed rules on its functioning are given
in a specific law, the Kadasterwet of 3 June, 1989.163
Motor vehicles are not registered property, even though the transfer
of vehicles is registered:164 when one buys a car (or motorcycle), one must
transfer the vehicle registration certificate into one’s own name. This registration is not constitutive, however: the transfer of ownership is effectuated
independently of compliance with the registration requirement.
With regard to goods that qualify as registered property, there is only
one way of delivering them: the way prescribed by art. 3:89 § 1 BW: a notarial deed intended for that purpose and drawn up between the parties,
followed by its entry in the public registers (see § 4 of the same article). It
is not allowed to use one of the other forms of transfer by delivery, for the
obvious reason that this would result in a violation of the publicity principle and would undermine legal certainty. There is no exception to this for
162
163
164
We will not pay any attention to the Convention on International Interests in Mobile Equipment (Cape Town, 16 November 2001), as The Netherlands is no party
to this Convention (yet). See e.g. B.P. Honnebier, The Convention of Cape Town
on International Interests in Mobile Equipment: The Solution of Specific European
Property Law Problems, European Review of Private Law 10-2002, p. 377-395 and
A.F. Salomons, Should we Ratify the Convention on International Interest in Mobile Equipment and the Air Equipment Protocol? Some Remarks from a Dutch Point
of View, European Review of Private Law 1-2004, p. 67-74.
Staatsblad 1989, no. 186.
By the Government Road Transport Agency (Rijksdienst voor het wegverkeer).
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movable registered property: once a ship or aircraft is registered (in Dutch:
teboekgesteld), it is registered property (see the articles 8:199 § 1, 8:790 § 1
and 8:1306 § 1 BW) and therefore governed by the provision of art. 3:89
BW, which acknowledges no other delivery method besides notarial deed
entered into the public registers.
5.6.
Real agreement
The concept of a real agreement is not undisputed in Dutch law. Whereas
the different formalities required for the transfer of assets are clearly laid
down in the civil code, the real agreement is neither mentioned in the old
nor in the new civil code. Especially with respect to the delivery of nonregistered movables by actually handing them over, the opinions differ on
the meaning of (and the practical need for) the real agreement.165 Some
authors maintain that the transfer of possession is not a legal, but rather a
factual act, and that therefore no place is left for a real agreement. Others
argue that even delivery by actual handing over implies a transfer of possession (legal act), which accordingly implies a real agreement.166
Be that as it may, the concept of a real agreement is acknowledged
by a majority of Dutch legal authors.167 They argue that the requirement
165
166
167
See on this Drobnig: “In the Netherlands, the validity of the transfer and therefore
also of the ‘real agreement’ accompanying it, depends upon the validity of the underlying contract. This ‘causal’ nature of the ‘real’ agreement is also unanimously
accepted in Dutch literature.” U. Drobnig, Transfer of Property, in: A.S. Hartkamp
et al., Towards a European Civil Code (3rd fully revised and expanded ed.; Ars Aequi
Libri: Nijmegen 2004), p. 725-740, at 736. In the second edition of Towards a European Civil Code, of 1998, p. 507, Drobnig wrote that the Dutch controversy about
the ‘real’ agreement is purely conceptual, without practical relevance, except where
the Civil Code expressly provides for it, but this remark did not return in the third
edition.
P.C. Slangen, Hoofdstukken Goederenrecht (3rd ed.; The Hague 2002), p. 24-25.
See for a survey Asser-Mijnssen-De Haan, Goederenrecht 3-I, p. 167. The central
question of the recent Phd-thesis of J.A.J. Peter, Levering van roerende zaken (Thesis;
Kluwer: Deventer 2007) is whether in Dutch property law the transfer of movables
is characterized by the conclusion of a real agreement and, if so, what function the
real agreement has. Her main conclusion is that the real agreement is indeed the
nucleus of the transfer of movables via art. 3:90 BW. The remainder of the book is
dedicated to an analysis of the consequences of this conclusion for the delivery of
future goods, delivery in case of indirect agency, delivery in case of title retention
and confirmation (regularization) of delivery in case a legal condition for the validity
thereof was fulfilled only after its execution.
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of a real agreement is implied by the fact that the transfer of property is
not brought about by the obligatory agreement, but by a separate legal act
(delivery).168 Besides, the Travaux Préparatoires indicate that the law starts
from the concept of a real agreement169 and the Hoge Raad has recognized
the real agreement170 as an element of delivery in several decisions.171
In order to be effective the real agreement should relate to specific property. This follows from art. 3:84 § 2 BW, which provides that “the title must
describe the property in a sufficiently precise manner.” The unfortunate
term ‘title’ in this paragraph does not refer to the obligation to transfer,
but to the real agreement (the execution of the obligation to transfer).172
According to art. 6:227 BW ‘the obligations that parties assume must be
determinable’.
An obligation is ‘determinable’ as indicated in art. 6:227 BW if criteria – if necessary even subjective criteria – are available for determining the
subject matter of the obligation.173 This is broader than ‘sufficiently precise’
within the meaning of art. 3:84 § 2 BW174, which means that objective
criteria could be found, if necessary subsequently, for determining which
object is to be, or has been, transferred.175 Therefore, the term ‘title’ in
art. 3:84 § 2 BW refers to the moment when the obligation to transfer, stemming from the title, will be effectuated, i.e. the moment of delivery.176
Besides, this follows from the ‘principle of individualization’. Ownership
of unascertained goods cannot exist and as a consequence generic goods
168
169
170
171
172
173
174
175
176
Asser-Mijnssen-De Haan, Goederenrecht 3-I, p. 166.
Parl. Gesch. Boek 3, p. 380; Parl. Gesch. Boek 6, p. 837; Parl. Gesch. Boek 3 (Inv. 3,
5 and 6), p. 1250.
N.B.: Under the previous Dutch civil code the real agreement was called zakelijke
overeenkomst. Under the new Dutch civil code it is referred to as goederenrechtelijke
overeenkomst, as transfer (and therefore the real agreement) relates to all goods, not
just things (zaken).
HR 7-6-1946, NJ 1946, 465; HR 29-9-1961, NJ 1962, 14; HR 18-2-1966, NJ 1967,
109; HR 24-5-1968, NJ 1969, 72; HR 8-3-1972, NJ 1973, 482; HR 8-6-1973, NJ
1974, 346; HR 27-4-1979, NJ 1981, 139; HR 1-2-1980, NJ 1981, 140; HR 7-5-1982,
NJ 1983, 241.
Asser-Mijnssen-De Haan, Goederenrecht 3-I, p. 174-175; O.K. Brahn and W.H.M.
Reehuis, Overdracht, Monografieën Nieuw BW B-6a (3rd ed.; Kluwer: 1997), p. 4243.
Brahn / Reehuis, Overdracht, p. 41, referring to Parl. Gesch. Boek 6, p. 895-896.
Brahn / Reehuis, Overdracht, p. 41-43.
Ibid., p. 41-43; HR 20-6-1997, NJ 1998, 362; HR 19-9-1997, NJ 1998, 698; HR
19-12-1997, NJ 1998, 690.
Asser-Mijnssen-De Haan, Goederenrecht 3-I, p. 174-175; Brahn / Reehuis, Overdracht,
p. 42-43.
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cannot be transferred unless it is known exactly which individual assets are
to pass to the acquirer. If an obligation exists for the transfer of a certain
number of generic goods, which will be specified later on, the appropriation
of those goods must take place in the real agreement. The real agreement
has the role of specifying the property and thus of complying with the
principle of specificity.
An invalidity, which affects the real agreement, only prevents the purported performance of the transferor’s obligation to transfer the property
to the transferee. But the obligation to transfer itself is not affected. The
transferor remains obliged to transfer and must make a new attempt to
transfer the property or else he will be burdened with the consequences of
his non-performance. This, of course, is the main argument of the ‘adversaries of the real agreement’: the annulment of a delivery (e.g. on the basis of
a threat, art. 3:44 BW) is futile because it merely postpones the delivery:
eventually, the obligation to deliver will have to be performed.
5.7.
Payment – right of recovery of seller
As has been said above (§ 5.2), Dutch law does not recognize a requirement
of payment for the acquisition by transfer based upon a sales contract. This
means that there is no implied reservation of title, as is the case in Belgium.
However, in the interests of salesmen, art. 7:39 BW grants the seller the
right to reclaim unpaid goods (right of revindication or, less confusingly:
right of recovery, in Dutch: recht van reclame). See art. 7:39 § 1 BW:
The seller of a movable thing (not registered property) that has been delivered
to the buyer is entitled, in case the price has not been paid and thereby the
conditions for termination ex article 265 Book 6 have been fulfilled, to reclaim
the thing by a written declaration addressed to the buyer. By this declaration
the sale is terminated (dissolved) and the right of the buyer or his legal successor ends (…).
The importance of the right of recovery lies in its proprietary effect: ownership returns automatically to the seller, whereas the regular termination
of the contract would merely create a personal obligation for the buyer to
transfer the thing back to the seller (art. 6:271 BW). In its legal (proprietary) effects, the right of recovery is comparable to the transfer under a
resolutory condition (see above, § 5.3.1): both lead to an automatic return
of title but without retrospective effect.
The term of forfeiture of this special right is specified in art. 7:44 BW:
the right or recovery ends when both six weeks have passed since payment
became due and 60 days have passed since the day on which the thing
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was stored by the buyer or someone on his behalf. Usually, therefore, the
right ends 60 days after actual delivery. Unless the thing has remained in
the hands of the buyer, third persons who in the meantime have acquired
a right in the thing are protected by art. 7:42 BW, provided they have
acquired their right for value, and they did not reasonably expect that the
seller would exercise his right of recovery.
6.
Double selling
When A sells the same asset first to B and afterwards also to C, both B and
C are entitled to delivery. For this situation art. 3:298 BW gives priority
(with exceptions) to B’s claim:
Unless the law, the nature of their rights, or the requirements of reasonableness
and equity177 produce a different result, where two or more creditors pursue
conflicting rights to delivery in respect to one and the same property, the oldest
right to delivery has preference in their mutual relationship.
This provision is only relevant if seller A does not perform voluntarily. If,
however, A does deliver of his own accord, either to B or to C, art. 3:298
BW has no role to play. B (assuming A had delivered to him) or C (idem)
will acquire ownership, as the last requirement for transfer has been fulfilled
by the delivery. Good faith is not required.
Under certain circumstances the other party will be entitled to hold
him liable: this will be the case if the buying of the thing constituted an
unlawful act, because he knew that it had already been sold to someone
else. The possibility of an order to transfer the thing to the other party was
recognized by the Hoge Raad in 1967.178
Even if the acquirer did not know at the time of the sale that the seller
had already sold the object to someone else, but he learned about that fact
before the delivery, he can under special circumstances be successfully accused of an unlawful act.179
177
178
179
Example: B has bought a house for reasons of speculation, without the intention to
live in the house himself, while C has bought the same house in a desperate need
for a place to live. In that case, C’s right of delivery would have preference over the
right of B because of the requirements of reasonableness and equity (See W. Snijders,
Botsende rechten op levering van eenzelfde goed, in: Recht door zee, Liber Amicorum
H. Schadee (W.E.J. Tjeenk Willink: Zwolle 1980), p. 185-192).
HR 17-11-1967, NJ 1968, 42 (Pos / Van den Bosch).
See HR 8-12-1989, NJ 1990, 217.
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With regard to future movable goods, there is not only the problem of
double selling but also of double delivery180 (double delivery is not possible
for existing movables that are under the control of the transferor, as delivery
is performed here by transfer of possession, which cannot be repeated after
the first delivery). Concerning the double delivery of future goods, art. 3:97
§ 2 BW provides the following:
Delivery in advance of future property has no effect against a person who has
acquired the property in advance as a result of an earlier delivery. In the case of
a movable thing, the delivery has effect against this person from the time the
thing has come into the hands of the acquirer.
In the second sentence, the subordination of the delivery constitutum possessorium (see art. 3:111 and 3:90 § 2 BW, discussed in § 2.3 and 5.4.2 sub A)
and the importance of the principle of publication are yet again expressed:
whoever succeeds in acquiring direct physical control of the thing will prevail. If that is the person to whom the thing was delivered last, (B), there
is a further problem. The delivery through which he obtained control of
the thing has effect against the other party (A), but that does not imply
that he automatically becomes the owner: the seller was no longer entitled
to transfer the thing to B, as A had already acquired ownership. In other
words, the seller no longer had the right to dispose of the thing. Therefore
B will also be in need of protection against the fact that the alienator was
not entitled to dispose of the thing: this protection will be awarded to him
if he is in good faith (meaning that he did not know nor ought to have
known that A had already acquired ownership) and his acquisition was not
gratuitous (see art. 3:86 § 1 BW).
7.
Selling in a chain
7.1.
Combined title
As said above, in § 5.1.2 and 5.1.3, the title required for a valid transfer
(art. 3:84 § 1 BW), is defined as ‘the legal relationship that underlies and
justifies the transfer’. The express purpose of this definition, introduced by
A.S. Hartkamp in 1974, is to cover cases like the one in which A sells to B
and B sells to C, after which A delivers directly to C. Transactions of this
180
With the exception of registered property and property which cannot be the subject
matter of a contract, future property may be delivered in advance; art. 3:97 § 1BW.
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type are called ABC contracts, and the underlying title is considered to be
a ‘combined title’ (samengestelde titel).181, 182
In the following situations a combined title is present:183
– ABC contracts: A sells to B and B sells to C, after which A delivers
directly to C (mentioned above);
– Indirect agency: A transfers a movable to B, who acts as an indirect agent
(middellijke vertegenwoordiger) for C and accepts the movable on behalf
of C (see art. 3:110 BW and below);
– Assignment: A sells to B and B sells to C, after which A delivers to C
after assignment by B to C of his right to delivery by A;
– Third Party Clause: A delivers to C after C has accepted a Third Party
Clause in the contract A-B to that effect;
– Takeover of a debt: A delivers to C after A has taken over B’s obligation
to C;
– Takeover of a contract: B transfers to C his position as the buyer in the
sales contract A-B.
Suppose B and C had agreed upon a reservation of title clause in their
sales contract, but delivery is performed not by B but by A, who had sold
the movable previously to B. In that case, the delivery A-C would result
in transfer of possession from A to B (pursuant to art. 3:110 BW, see § 3.4,
§ 7.3 and § 8.3.1) and the giving of control (pursuant to art. 3:91, see § 13
and § 13.3) from B to C. So the delivery A-C would result in acquisition of
mediate possession by B and of immediate detention for B by C.184 Furthermore, B is the owner until the condition for acquisition by C is fulfilled.
181
182
183
184
See Asser-Mijnssen-De Haan, Goederenrecht 3-I, no. 239, S.E. Bartels, De titel van
overdracht in driepartijenverhoudingen (Thesis; Boom Juridische uitgevers: The
Hague 2004) and A.S. Hartkamp, De samengestelde overdrachtstitel en zijn manco’s, Weekblad voor Privaatrecht, Notariaat en Registratie 6596 (2004), p. 849-856.
In all these cases it seems that the ‘real agreement’ in the delivery A-C is concluded
between A and C, and that B is not a party to that agreement. However, the matter
has drawn hardly any attention from Dutch scholars, so it is not possible to construe
a common opinion.
See Hartkamp, De samengestelde overdrachtstitel, Weekblad voor Privaatrecht, Notariaat en Registratie 6596 (2004), p. 850.
See Bartels, De titel van overdracht in driepartijenverhoudingen, p. 64.
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7.2.
85
Defects in either of the two relationships
In the Civil Code of 1992, no attention is given to the consequences of
defects in either the relationship A-B or the relationship B-C.185
In cases in which the relationship A-B is defective, protection of C is possible by analogous application of articles 3:86 and 3:88 BW: these provisions
protect the bona fide purchaser who acquires a non domino (art. 3:86 applies
to non-registered movables, art. 3:88 to immovables and other registered
property and claims). Both rules are not directly applicable, because there is
no separate transfer B-C, but analogous application seems appropriate.186
In cases where there is a defect in the relationship B-C, protection of
A is possible ex art. 6:34 BW:
A debtor who has paid a person who was not entitled to receive payment, can
invoke his release by payment against the person to whom the payment should
have been made, if he had reasonable grounds to believe that the recipient of
the payment was entitled to the performance as creditor or that payment was
to be made to him for another reason.
After A has delivered to C (as B had instructed him to do so), A is discharged from his obligations, despite the defect in the relationship B-C.
But what about the ownership of the property? In the end, the property
should belong to B, as the relationship between him and C was defective
and C therefore ought to return the property to B. This can be achieved
by allowing B to claim the property from C on the basis of art. 6:36 and /
or art. 6:212 BW. Art. 6:36 BW provides that the person who in reality is
entitled to payment has recourse against a person who has received payment without having a right thereto.187 Art. 6:212 provides that a person
who has been unjustifiably enriched at the expense of another must, to the
185
186
187
This is the same for Dutch and for Austrian law (both causal traditio systems): doctrine is responsible for the acknowledgement of the combined title. Reportedly,
in Austrian law, C is protected against a defect in the relationship A-B (by § 367
ABGB), but there is no protection for A if there is a defect in the relationship B-C
(according to Bartels and Hartkamp).
See in favour of this solution especially Hartkamp, De samengestelde overdrachtstitel, Weekblad voor Privaatrecht, Notariaat en Registratie 6596 (2004), p. 852.
This only applies in cases referred to in articles 6:34 BW (quoted above) and art. 6:35
BW (§ 1: Where payment made by a third person fulfils, with respect to that person,
the requirements of either of the paragraphs of the preceding article, the third person
can invoke the releasing force of that payment in his favour. § 2: The debtor can
invoke the releasing force of that payment in his own favour if, through his own payment, he would also with respect to himself have complied with those requirements.
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extent that this is reasonable, make reparation for the damage suffered by
that other person up to the amount of his enrichment.188
If both relationships (A-B and B-C) are defective simultaneously, the
property will have to return to A. C is not protected by (the analogous application of) the above-mentioned provisions, due to his lack of good faith,
and B would have no recourse to art. 6:212 BW against C (or A) because
there would be no unjustified enrichment of C (or A) at the expense of B.
There would not even be a valid combined title, as both constituent titles
are invalid. A would still be owner.
7.3.
Acquisition through another (e.g. indirect agency)
In art. 3:110 BW, a special rule is given for acquisition through someone
else (e.g. an indirect agent). The provision has been quoted and discussed
above, in § 3.4, to which reference is made. In short, art. 3:110 BW provides
that C (the principal in an agency setting) automatically becomes the possessor of the property that B (the agent of C) acquires on his behalf from A.
With regard to movables, this has the effect that the principal acquires ownership, as the delivery of movables is effected by the transfer of possession
(art. 3:90 § 1 BW). In other words: ownership is directly transferred from A
to C (with the effect that a possible bankruptcy of B is not an obstacle).
8.
Insolvency of the transferor or acquirer
8.1.
Contracts and bankruptcy
In principle, a bankruptcy order does not influence existing contracts or
the rights and obligations they entail, unless a legal exception exists. The
Faillissementswet (Bankruptcy Act) contains several such exceptions: articles 35b (on gifts), 37 (see below), 38 (on forward transactions), 38a (on
instalment buying), 39 (on lease contracts) and 40 Faillissementswet (on
labour contracts).
Art. 37 Faillissementswet deals with the situation in which a synallagmatic contract has not, or only partially, been fulfilled by both the debtor
and the other party at the time of the bankruptcy order. The trustee in
188
See again Hartkamp, De samengestelde overdrachtstitel, Weekblad voor Privaatrecht,
Notariaat en Registratie 6596 (2004), p. 853. Hartkamp does not discuss the complication that, for the application of art. 6:212 BW, it is required that the enrichment
of C was at the expense of B. When the relationship A-B was gratuitous, this is not
the situation, and so art. 6:212 BW offers no solution in such a case.
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bankruptcy is to declare within a reasonable period, granted to him in
written form by the other party, whether he is prepared to fulfil the agreement. If the trustee declares that he is prepared to fulfil the agreement,
he is obliged to furnish security along with that declaration (art. 37 § 2
Faillissementswet).
If, on the other hand, the trustee does not do so in time, or he declares
that he is not prepared to fulfil the agreement, he loses the right to demand
the fulfilment of the contract by the other party (art. 37 § 1 Faillissementswet). The other party is then entitled to dissolve the contract and claim
damages: he may come in as a creditor in bankruptcy with this ordinary
debt (art. 37a Faillissementswet). In this way, the claim is treated as if it had
arisen before the bankruptcy order,189 which is justified by the fact that it
has taken the place of the one that had indeed arisen by then).
Recently, the Hoge Raad has decided in a widely debated arrest190 that
synallagmatic contracts indeed maintain their validity after the bankruptcy of one
of the parties, but that this fact does not mean that the creditor can exercise his
rights stemming from that contract after the bankruptcy of the debtor; that would
be an unacceptable violation of the principle of paritas creditorum. In other words,
the trustee in bankruptcy cannot be forced to perform the obligations of the
bankrupt (he is “entitled to non-performance”); the same goes, in particular,
in cases where the bankrupt was contractually obliged to permit the use of
one of his assets (in casu a house) by the other party. For another outcome a
statutory exception is needed like the ones mentioned above.
8.2.
Actio pauliana (in bankruptcy)
Dutch law acknowledges the so-called actio pauliana both inside (invoked
by the trustee) and outside (invoked by individual creditors) bankruptcy
settings. The ‘pauliana outside bankruptcy’ has been mentioned above,
in § 3.2 and § 5.3.2 sub A. Below, will only be discussed the ‘bankruptcy
pauliana.’191
189
190
191
See art. 24 Bankruptcy Act: the bankrupt’s estate is not obliged to meet the obligations of the debtor that have arisen after the bankruptcy order, unless (and as far as)
it has profitted from them.
HR 3-11-2006, NJ 2007, 155 (Nebula).
A.M.J. van Buchem-Spapens and Th.A. Pouw, Faillissement, surseance van betaling en
schuldsanering. Monografieën Privaatrecht 2 (Kluwer: Deventer 2004), Ch. V (p. 4149). See also A.F. Salomons, Dutch case note; Hof van cassatie van België / Cour de
cassaton de Belgique, 31 January 2002 – The effect of annulment in bankruptcy as
against a third party acquirer in good faith, European Review of Private Law 6-2004,
p. 804-809 (the following survey is largely taken from this case note).
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If a Dutch trustee in bankruptcy decides to annul192 one of the bankrupt’s legal acts on the basis of its paulianic nature (that is: detrimental to
the interests of his other creditors), then he has to so state and, if necessary,
prove that the following four conditions have been fulfilled (art. 42 § 1 and
2 Faillissementswet = Bankruptcy Act):
1. The legal act was non-obligatory,193 meaning that there was no (legal
or contractual) duty to perform this act. Annulment is impossible in case
of an obligatory performance of a legal act, unless either the other party
knew that bankruptcy had already been filed or the debtor and creditor had
the joint intention to favour this creditor above the other creditors (art. 47
Faillissementswet).194
2. The interests of the creditors have been harmed;195 the size of the
bankrupt’s estate must have been diminished.196
192
193
194
195
196
This sanction differs from that in, e.g., Belgium: in Dutch law Paulianic legal acts
are avoidable, while in Belgian law they are non-invokable against the estate of the
bankrupt. As far as can be seen, this difference is not very important: in either case it
is (in the Netherlands de iure, in Belgium de facto) up to the trustee to decide whether
to take the Paulianic nature of the legal act into account, or to let matters rest.
In Dutch: onverplichte rechtshandeling. In case of giving in payment – performing in
another way than was due – this condition is fulfilled: a legal act like this has to be
considered non-obligatory, as the debtor is not obliged to make this kind of performance, notwithstanding the fact that he is entitled to perform in this manner if he
has the permission of the creditor (see art. 6:45 BW). Art. 6:45 BW indicates that
giving in payment has to be considered the performance of the original obligation,
and not as novation (substitution of one debt for another). Novation would require
the waiving of the original claim by the creditor. See on this A.S. Hartkamp, C.
Asser’s Handleiding tot de beoefening van het Nederlands burgerlijk recht. Verbintenissenrecht. De verbintentis in het algemeen 4-I (12th ed.; kluwer: Deventer 2004), no. 625.
This is established case law and communis opinio among the authors. For case law see
especially HR 18-12-1992, NJ 1993, 169 (Kin Emmerig q.q.) and HR 20-11-1998, NJ
1999, 611 (Verkerk / Tiethoff q.q.). With regard to the legal literature, for the sake of
brevity reference is made only to F.M.J. Verstijlen, Het onverplichtheidsvereiste bij
de (faillissements)Pauliana, Tijdschrift voor Insolventierecht 1999 / 6, p. 127-131, with
further references.
Knowledge of the prejudice to the interests of the other creditors is not sufficient
here: intention is required. See HR 24-3-1995, NJ 1995, 628 and HR 20-11-1998,
NJ 1999, 611.
In Dutch: benadeling van schuldeisers.
See HR 19-10-2001, NJ 2001, 654. This has to be determined, not as of the moment the legal act was performed, but as of the moment the trustee invokes the
Actio Pauliana or – in case of legal proceedings – as of the moment when the judge
decides. HR 22-3-1991, NJ 1992, 214 (Loeffen q.q.-Mees en Hope II): the fact that
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3. The debtor knew or ought to have known that the creditors’ interests
would be harmed.197
4. In the case of a legal act other than by gratuitous title, the other
party knew or ought to have known that harm to the creditors’ interests
would occur.
Whether these last two conditions have been fulfilled is difficult to
prove. For that reason, art. 43 Faillissementswet determines that knowledge
of the prejudice is assumed on the side of both the debtor and the other
party in the case of a legal act mentioned in the article, performed within
a year before the bankruptcy order, provided that the debtor had not before that period committed himself to perform the legal act. Furthermore,
knowledge of prejudice is assumed on the side of the debtor in the case of a
legal act by gratuitous title, performed within a year before the bankruptcy
order; art. 45 Faillissementswet.
This complex set of rules can be summarized as follows: the trustee is
entitled to annul a legal act if he so states and, if necessary, proves that the
act was non-obligatory, causing prejudice to the creditors, and of which
the debtor (and in case of a legal act other than for gratuitous title also the
other party) knew or ought to have known would cause this prejudice. In
the cases specified in articles 43 and 45 Faillissementswet knowledge of the
fact that the legal act causes prejudice is assumed. Annulment of an exigible
debt is possible only if it is proven that the receiver knew that bankruptcy
proceedings against the payer were instituted or that the payer and receiver
had conspired in order to favour the latter above the other creditors.
The third-acquirer in good faith is protected against the annulment by
the trustee pursuant to art. 51 § 2 Faillissementswet, which reads as follows:
Rights, acquired by third persons in good faith and under onerous title, are respected. There is to be no reclaiming from a third person, who has acquired in
good faith and by gratuitous title, in so far as he proves that he had not benefited
from the legal act at the moment of the bankruptcy order.
This provision is a lex specialis for third party protection in the context of
the actio pauliana in bankruptcy. So the general provision on the protection
of the acquirer in good faith and under onerous title of a movable thing
(art. 3:86 BW) does not apply here.
This is relevant for the position of the acquirer by gratuitous title: he is
not entitled to invoke art. 3:86 BW (which does not protect the acquirer
by gratuitous title at all), but the protection of art. 51 § 2 Faillissementswet
197
creditors are merely excluded from some benefit does not imply that their interests
have been harmed.
In Dutch: wetenschap van benadeling.
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is available to him, provided that he is able to prove that he did not benefit
from the legal act. Art. 3:45 § 5 BW contains an almost identical rule for
the actio pauliana in a non-bankruptcy setting; in that case, too, the annulment does not have effect against a third acquirer in good faith and by
gratuitous title, in so far as he proves not to have benefited. There is only
a difference with regard to the moment at which the presence or absence
of benefit has to be determined: for the ‘bankruptcy pauliana’, this is the
moment of the bankruptcy order, for the ‘ordinary’ pauliana the moment
when the acquired object is reclaimed.
8.3.
Insolvency of transferor
8.3.1. Bankruptcy between sale and delivery
If a transferor is declared bankrupt after the title of transfer (e.g. a sales
contract) has come into being but before delivery has taken place, the
acquirer is not ‘protected’ against the general creditors of the transferor:
Art. 35 Faillissementswet determines that a delivery can no longer be performed if not all of the acts, required for a delivery by the debtor, have
taken place on the day of the bankruptcy.198 The principle behind art. 35
Faillissementswet is that the bankrupt’s estate should remain intact for the
benefit of the creditors who are entitled to recover their claims from that
estate.199 Obviously, art. 35 Faillissementswet is a mandatory rule of law, as
it aims to protect other parties.
As a consequence of art. 35 Faillissementswet the would-be transferee is
not in a strong position: he has a personal right to delivery, which counts
as an ordinary debt (in Dutch: concurrente vordering), to be presented to the
trustee in bankruptcy for the creditors’ meeting.
If the delivery takes place after the bankruptcy order, but before the
order is published,200 the transferee has recourse to the protection of the
198
199
See on assignment HR 14-7-2000, NJ 2001, 685 (Lagero): if the assignor had made
and signed the deed of assignment before he was declared bankrupt, but the debtor
of the claim had not yet been notified, the assignment cannot be completed afterwards by performing the notification at a later date: the claim remains part of the
bankrupt’s estate and if the trustee in bankruptcy wishes the assignment to proceed,
he has to make a new deed of assignment, followed by notification (see art. 3:94 BW;
the introduction of silent assignment had not yet taken place in 2000).
Van Buchem-Spapens / Pouw, Faillissement, surseance van betaling en schuldsanering, p. 29.
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bona fide acquirer a non domino of art. 3:86 BW,201 provided that it is established that he was indeed in good faith. After the publication, those who
have acquired from the bankrupt are considered to have known the fact
that the transferor lacked the right to dispose: art. 35 § 3 Faillissementswet.
This provision does not apply to registered property: the acquirer of such
property is not protected on the basis of his good faith when the delivery
was completed before the publication of art. 14 Faillissementswet, as long
as the bankruptcy was entered in the Bankruptcy Register; see art. 3:24 § 2
under c BW.202
With regard to future goods:203 if the debtor has delivered future goods
in advance of his bankruptcy and the goods are acquired204 by him after he
was declared bankrupt, then the transfer has no effect: the goods form part
of the bankrupt’s estate: see art. 35 § 2 Faillissementswet.
If an indirect agent is declared bankrupt before the delivery of a movable, acquired for the principal, the latter is protected by the special provision of art. 3:110 BW. This provision has been discussed above in § 3.4, 7.1
and especially § 7.3. In short, the principal acquires ownership ipso facto,
despite the bankruptcy of the agent.
As art. 35 Faillissementswet is mandatory, direct deviation is not possible. Nevertheless, it is possible to regulate by contract what the effects of
a declaration of bankruptcy of either of the parties will be on the contract.
Take, for example, a loan: usually a loan contract stipulates the immediate exigibility of the remaining debt in the case of the bankruptcy of the
borrower. This is relevant to the amount of the claim to be allowed by the
trustee in bankruptcy.205
200
200
201
202
203
204
205
Pursuant to art. 14 § 3 Faillissementswet publication is required in the Netherlands
Government Gazette (Nederlandsche Staatscourant). Recently, the extra requirement
of publication in “one or more newspapers” was abolished.
The same applies to the protection of art. 3:238 BW for a pledge.
See Van Buchem-Spapens / Pouw, Faillissement, surseance van betaling en schuldsanering, p. 33.
Van Buchem-Spapens / Pouw, Faillissement, surseance van betaling en schuldsanering,
p. 24. The extensive and complex case law on the assignment of future claims can
be left aside here, as our subject is the transfer of movables.
Property acquired by the bankrupt at the result of inheritance is part of the bankrupt’s estate (art. 20 Faillissementswet). The trustee in bankrupcy is entitled to decide whether an inherinance is accepted or renounced; art. 41 Faillissementswet; see
Van Buchem-Spapens / Pouw, Faillissement, surseance van betaling en schuldsanering,
p. 25.
Van Buchem-Spapens / Pouw, Faillissement, surseance van betaling en schuldsanering, p. 39.
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8.3.2. Bankruptcy after transfer under suspensive condition
In the case of transfer under a suspensive condition, the bankruptcy of
the transferor before the fulfilment of the condition does not obstruct the
acquisition by the transferee. This follows from art. 3:84 § 4 BW:
Where delivery is made in the performance of a conditional obligation, the
right so acquired is subject to the same condition as the obligation.
This means that the delivery under suspensive condition has led to the
acquisition of a ‘conditional right’:206 whether the acquirer will eventually
receive ownership depends only on the fulfilment of the condition: the fact
that the transferor by that time has lost the right to dispose is irrelevant.207
The fulfilment of the condition has no retroactive effect (art. 3:38 § 2 BW),
so ownership passes from the transferor to the transferee at a stage when
the bankruptcy of the former has already been declared.
8.3.3. Position of the transferee in case of invalidity of sale
If a sales contract is terminated (dissolved) after delivery to the transferee,
the latter is obliged to undo the performance he has already received, and
the same applies to the seller (art. 6:271 BW208). This means that the buyer
is obliged to retro-deliver the acquired property to the seller. If the seller
has been declared bankrupt, the buyer is entitled to suspend this obligation,
as he can reasonably expect that he will not (or not immediately) obtain
restitution of the price he has paid. This right of suspension (art. 6:52 / 262
BW), which implies a right of retention (art. 3:290 BW), can also be invoked against the creditors of the seller (art. 6:53 BW), which includes the
trustee himself.209
206
207
208
209
It should be mentioned in passing here that some authors reject the notion of ‘owner
under suspensive condition’, because it suggests that the acquirer already is, in a
way, the owner, whereas in reality he is not. See above, § 3.2, and N.E.D. Faber,
Overdracht van voorwaardelijke eigendom, in: N.E.D. Faber, C.J.H. Jansen and
N.S.G.J. Vermunt (eds.) Fiduciaire verhoudingen. « Libellus amicorum Prof.mr. S.C.J.J.
Kortmann ». Serie Onderneming en Recht 41 (Kluwer: Deventer 2007), p. 33-58.
Art. 6:271 BW: The dissolution of a contract liberates the parties from the obligations affected by it. To the extent that these obligations have already been performed, the legal ground for this performance remains intact, but an obligation arises
for the parties to undo the prestations that they have already received.
See Parl.Gesch. Boek 6, p. 211. See also art. 60 Faillissementswet.
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The picture is different in the case of an annulment of the sales contract:
annulment has both proprietary and retroactive effect, in other words: the
ownership returns to the seller as if it had never been transferred (art. 3:53
BW). The buyer is left with the possession of the property. If he is to be
regarded as possessor in good faith, he has a right of retention, but only
for the obligation of the seller to reimburse him for the costs expended on
the property, as well as for the damages for which the possessor might be
liable toward third persons by reason of his possession; see art. 3:120 BW,
discussed above (§ 1.4.2 and 1.6.1), and below, Section 18, on the consequences of restitution of the movable to the owner.
8.4.
Insolvency of the transferee
In a delivery system like the Dutch BW, the position of the seller in the case
of the bankruptcy of the buyer is primarily determined by whether or not
delivery has already taken place: if it has, ownership has passed to the buyer
and the seller is – unless some special protective provision is available, see
below – left with a mere personal claim if payment by the buyer is still due.
The most important exception to this general rule is to be found in
the law of sales: the seller is equipped with the proprietary protection of
art. 7:39 (right of recovery), which was discussed above in § 5.3.2 sub C and
quoted in § 5.7. In short: in case of non-payment by the buyer, the seller
is entitled to dissolve the sales contract by means of a written notice, as a
consequence of which ownership returns to the seller ipso facto without retroactive effect. Pursuant to art. 7:44 BW, this right of recovery ends when
both six weeks have passed since payment became due and 60 days have
passed since the day on which the thing was stored by the buyer or someone
on his behalf. In contrast to this protection of the seller is a rather generous
protection of third persons who have acquired rights on the sold property in
good faith before the right of recovery was exercised; art. 7:42 BW.
If the title of transfer is annulled after delivery to the transferee – either by the transferor, the transferee or a third party (e.g. the trustee in
bankruptcy) – the transferor regains ownership (annulment has retroactive
effect; see above, § 8.3) and is entitled to revindicate210 the property from
the transferee, whether the latter has been declared bankrupt or not. If the
annulment takes place before delivery, the transferor is liberated from the
210
This revindication of the owner of a thing (art. 5:2 BW) is not to be confused with
the just mentioned right of revindication (in Dutch: reclamerecht) of the seller of a
movable thing (art. 7:39 BW). One of the important differences is that the revindication of art. 5:2 is subject to a limitation period of 20 years, whereas the right of
revindication of art. 7:39 expires in a couple of weeks.
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obligation to transfer ownership to the transferee and therefore to deliver
the thing to him. The bankruptcy of the transferee is therefore without
any consequence.211
Again, the termination (dissolution) of the contract from which the title
of transfer stems – because of the non-performance of either transferor or
transferee – presents a different picture, because of the fact that termination
has no proprietary effect. If delivery has preceded the termination, ownership remains with the transferee, who is merely obliged to redeliver the
thing to the transferor (art. 6:271 BW). If the transferee is bankrupt, the
thing forms part of the bankrupt’s estate and the trustee is free to proceed
towards execution; the personal claim of the transferor to undo the transfer
is not an obstacle to this.
If delivery has not taken place at the moment when the contract is terminated, the situation is, from a proprietary viewpoint, similar to that of the
annulment of the contract before delivery: the transferor is still the owner
of the property and is liberated from the obligation to deliver it to the transferee, so that the bankruptcy of the latter is without consequence.
It case of traditio by constitutum possessorium, ownership passes to the
transferee before the thing is actually handed over to him. In that case,
annulment leads to a return of ownership to the transferor (theoretically,
possession is still in the hands of the transferee, but due to the fact that
the transferor now starts to possess the thing for himself once again, one
can discern that he “contests” the right of the transferee; this leads, pursuant to art. 3:111 BW, to a return of possession to the transferor; see above,
§ 1.2.1, 2.3 and 5.4.2.a). Termination does not have this effect, so that the
bankruptcy of the transferee still leaves the latter with the ownership of the
property, even though this is still in the hands of the transferee. Obviously,
the latter is entitled to suspend his obligation to hand it over to the transferee, as he has the personal right of art. 6:271 BW to the retro-delivery of
the property by the transferee.212
211
212
Unless the judge makes use of the exception under art. 3:53 § 2 BW, the judge may, if
so demanded, refuse to give effect to an annulment in whole or in part, if the juridical act has already produced effects that can only be undone with difficulty. He may
order that a party who is prejudiced by his decision be compensated by a party who
unjustly benefits from it.
With regard to movables, delivery is effected by the giving of possession (art. 3:90 § 1
BW, see above, § 1.2.1, 5.4.2.a and passim), that is: enabling the acquirer to exercise
control over the property (art. 3:114 BW). If delivery is made through a middleman
(a carrier), it depends on the contractual setting whether possession passes at the
moment the property is presented by the transferor to the middleman or at the moment it is presented by the middleman to the transferee: it is decisive under whose
instructions the middleman operates (who has engaged the middleman?). If it is the
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In case property is transferred under resolutive condition (e.g. a title reservation), the acquirer receives ownership, which is to end ipso facto by the
fulfilment of the condition; see art. 3:84 § 4 BW (quoted above in § 8.3.2).
This also applies if that fulfilment of the condition (in the case of title
reservation usually payment by the transferee) takes place after the latter
is declared bankrupt: ownership of the acquired thing leaves the bankrupt’s
estate and returns to the transferor.
An exception to the above has to be made for cases in which the transferee has acquired ownership by accession, specification or confusion of
goods previously transferred to him (see below, Section 10). This is the case
when he processes the acquired goods in the manufacture of new goods.
These forms of original acquisition imply that the ownership of the goods,
which had been transferred to him, ceases to exist; this renders the return
of ownership (in the case of annulment) or the coming into existence of a
claim for retro-delivery (in the case of termination) of the transferred goods
impossible. The transferor is left with a claim arising from the contract or
from unjustified enrichment. The bankruptcy of the transferee is irrelevant:
the original acquisition occurs due to the manufacture itself, irrespective of
any (lack of) entitlement on the part of the manufacturer.
9.
Passing of risk and proprietary interests
9.1.
Transfer of movables and passing of risk
With regard to the passing of risk, the Burgerlijk Wetboek provides rules only
in the context of sales contracts (Book 7 Title 1 BW). Art. 7:10 § 1 and § 4
BW read as follows:
1. The thing is at the risk of the buyer as of the delivery, even if ownership
has not been transferred. As a consequence, the purchase price remains owed
irrespective of the loss or deterioration of the thing by a cause that cannot be
imputed to the seller.
4. Where, after delivery, the thing has remained at the risk of the seller, the
seller is also responsible for the thing’s loss or deterioration by the act of the
buyer. However, as of the time when the buyer must reasonably foresee that he
must give the thing back, he is obliged to look after the safekeeping of the thing
as a prudent debtor (…).
transferor under whose instructions the middleman operates, the former is in a position to instruct the middleman to abort the delivery if he learns that the transferee is
probably not going to fulfil his obligations. It seems that this would result in a similar
situation as stoppage in transitu (a legal concept that in itself is alien to Dutch law).
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The notion of delivery (in Dutch: aflevering, not to be confused with levering, even though both words have to be translated as “delivery”) in art. 7:10
§ 1 BW refers to art. 7:9 § 2 BW, in which delivery (aflevering) is defined
as follows:
Delivery is understood to mean putting the buyer into possession of the thing.
Art. 7:10 § 1 BW is in accordance with art. 69 CISG and art. 97 LUVI. By
following these regimes, the Roman Law principle of periculum est emptoris
has been abandoned. The French system, in which the risk passes to the
buyer at the moment ownership is transferred, has the disadvantage that it
does not place the risk in the hands of the person who has actual control of
the thing (in the consensual French system even less so than in the Dutch
delivery system): the person who has control of the thing is the obvious
person to burden with the obligation to care for the preservation of the
thing.213
Art. 7:10 BW is non-mandatory. In the case of a consumer sale,214 however, there may be no derogation to the detriment of the buyer. Furthermore, art. 7:11 BW provides:
If, in a consumer sale, the seller or a carrier designated by him delivers the thing
to the buyer, the thing is only at the risk of the buyer as of that time, even if it
had already been delivered in the sense of article 9.
It should be prevented that the buyer could postpone the passing of the risk
by not cooperating in the delivery. Therefore, art. 7:10 § 2 BW determines
that the risk also passes in the case of creditor’s default:
The same [as provided in art. 7:10 § 1 BW, quoted above, A.F.S.] applies as of
the time when the buyer is in default of performing an act by which he must
cooperate in the delivery. In the case of sale of things determined as to kind,
the default of the buyer does not transfer the risk to him until the seller has
specified the thing destined for the performance of the contract and has notified
the buyer thereof.
213
214
See Jac. Hijma, C. Asser’s Handleiding tot de beoefening van het Nederlands burgerlijk
recht. Bijzondere overeenkomsten. Koop en ruil 5-I (5th ed.; W.E.J. Tjeenk Willink:
Zwolle 1994), no. 509. Compare art. 6:27 BW: A person who is obliged to deliver a
thing, certain and determinate, must care for it until delivered in the manner in which a
prudent debtor would do so in the circumstances.
A consumer sale means the sale of a movable thing entered into by a seller acting
in the course of a business or profession, and by a buyer who is a natural person not
acting in the course of a business or profession; art. 7:5 § 1 BW.
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If, on the other hand, the seller would be late in delivering (debtor’s default), this would only result in the postponement of the passing of the risk,
as this would have passed earlier had he performed on time.
9.2.
Passing of various interests in property
With regard to the passing of the right to dispose of the property and the right
to exercise the remedies of ownership: these interests pass (in principle) at
the moment when ownership passes, and therefore usually upon delivery.
Under certain circumstances it is possible to transfer the right to dispose
before the passing of ownership takes place. The most obvious example is
the sales contract in which a reservation of title is stipulated, combined
with a clause that entitles the buyer to dispose of the property before the
fulfilment of the condition that ends the ownership of the seller (normally:
payment by the buyer).215
That the right of revindication passes with the ownership of the thing
concerned, is clear from the words of art. 5:2 BW: revindication is awarded
to “the owner of a thing”. Nevertheless, in several cases a remedy similar
to that of the owner is awarded to non-owners. See for example, art. 3:295
BW, which provides that a creditor who loses control of the thing can reclaim it under the same conditions as an owner in order to re-establish his
right of retention (see above, § 2.4).
Another example is art. 3:125 BW, which entitles the person who has
acquired possession of property to institute, on the basis of a subsequent loss
of or disturbance in the possession, the same actions against third persons
to recover the property and to remove the disturbance as the title-holder
of the property; see above, § 1.6.1a and § 2.4-2.5.
With regard to the right to the fruits of the property, the basic rule is that
fruits belong to the owner of the thing from which the fruits are separated;
see art. 5:1 § 3 BW:
Without prejudice to the rights of others, the owner of the thing becomes owner
of the fruits once separated.216
215
216
See on the subject of disposing of the property of someone else in general, L. Groefsema, Bevoegd beschikken over andermans recht (thesis; Kluwer: Deventer 1993), and
my remarks with regard to the debate in Dutch literature on the issue above, § 5.1.3
sub B.
This rule should be read in combination with art. 5:17 BW, which attributes fruits to
the usufructuary, the leaseholder etc.: The person who, pursuant to his right of enjoyment of a thing, is entitled to its fruits, acquires the ownership thereof upon their
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However, when the thing is not in the hands of the owner, but with a possessor in good faith, the latter is entitled to the fruits (art. 3:120 § 1 BW):
Separated natural fruits and civil fruits that have become exigible belong to the
possessor in good faith.
In that case, the acquisition of the possession is decisive and therefore the
moment of the delivery equally so. See more detail on fruits below, § 13.3
and § 18.1.
separation. When the property is not encumbered with such a right of enjoyment,
the owner of the thing himself is entitled to the fruits (upon their separation).
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Part III:
10.
Accession, confusion and specification
10.1.
Terminology: component part and principal movable
Art. 3:4 § 1 BW provides that any thing that, according to common opinion, forms a part of a thing is a component part of that thing. For example:
a key is, according to common opinion, a component part of the lock and
a keyboard is regarded as component part of a computer. Furthermore, a
thing that is attached to a principal thing in such a manner that it cannot
be separated therefrom, without substantial damage being done to either,
becomes a component part of that thing, pursuant to § 2 of art. 3:4 BW.
Component parts do not have an independent proprietary existence;
their legal status depends on the legal status of the principal thing. This
implies that the owner of a thing to which another thing becomes a component part acquires the ownership of that part. This is provided for in
art. 5:14 BW (accession of movables), art. 5:15 BW (confusion), 5:16 BW
(specification), and 5:20 BW (accession of movables by immovables).217
These provisions will be discussed in detail below.
Art. 5:14 BW provides that a thing is deemed to be a principal thing
where its value considerably exceeds that of the other thing, or where, according to common opinion, it is considered as such.
In an illuminating case, the Hoge Raad has decided that a machine does
not become a component part of the building by the mere fact that it plays
an important role in the production process of the factory in that building:
what matters is common opinion about the relationship between the building and the machine: is the building in its construction especially equipped
for the machine and does the building (as a factory building in general)
have to be regarded as unfinished as long as the machine is missing?218 So
the relation between the things themselves is crucial, not their function
or role. An elevator is a good example of a machine that, according to this
217
218
See especially J.E. Wichers, Natrekking, vermenging en zaaksvorming. Opmerkingen
bij de algemene regeling voor roerende zaken in het Burgerlijk Wetboek. Serie Recht en
Praktijk 121 (Thesis; Kluwer: Deventer 2002).
See HR 27-11-1992, NJ 1993, 317 (Zaaimachine) and Pitlo / Reehuis, Heisterkamp,
Goederenrecht, no. 12.
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rule, would be a component part of the building if they were constructed
to be joined together: the building would have to be regarded as unfinished
without its elevator.
Before discussing the rules on accession, confusion and specification in
detail, some remarks that apply to either of them should be made. Property
law rules are mandatory, unless it is expressly stated that the parties may
agree otherwise. In the case of accession, confusion and specification no such
exception is given, so they are entirely mandatory.219 This is not surprising, as
they deal with attribution of ownership and so have effect erga omnes.
Even though this acquisition of ownership cannot be prevented by the
parties concerned, the consequences of this acquisition are mitigated by the
fact that the party who benefits from this acquisition can be obliged to pay
damages on the basis of unjustified enrichment. See art. 6:212 BW:
A person who has been unjustifiably enriched at the expense of another, to the
extent this is reasonable, must make reparation for the damage suffered by that
other person up to the amount of his enrichment.
In principle, the entire value of the acquisition must be paid, but in the case
that this would lead to unfair consequences (“to the extent this is reasonable”) a reduction takes place.220
Accession, confusion and specification have proprietary consequences
because property law has to accept the fact that a new object has come
into being, the ownership of which needs to be regulated. This in itself
explains why good faith on the part of the acquirer is not required, nor is
legal capacity.
10.2.
Accession of movables
The first paragraph of art. 5:14 BW provides:
The ownership of a movable thing that becomes a component part of another
movable thing, which itself is to be regarded as the principal thing, passes to
the owner of the principal thing.
219
220
See accordingly Wichers, Natrekking, vermenging en zaaksvorming: opmerkingen bij de
algemene regeling voor roerende zaken in het burgerlijk wetboek, p. 27 ff. (§ 1.6.2), who
describes the discussion on this topic before the present civil code was enacted in
1992.
See in particular F.H.J. Mijnssen, Goederenrechtelijke aspecten van ongerechtvaardigde verrijking, Weekblad voor privaatrecht, notariaat en registratie 6657 (2006),
p. 174-180.
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This rule implies that no accession (in Dutch: natrekking) occurs when neither of the things involved is to be regarded as the principal thing or component part. If, for example, two more or less equal movables are combined
to constitute a new thing (e.g. two short plastic tubes are glued together to
form a longer tube) the process cannot be called accession, and the basic
rule of art. 5:14 § 1 BW does not apply. The process does have proprietary
effect, however, if the constituent parts of the new thing had different owners. This effect is specified in § 2 of art. 5:14 BW: the owners become its
co-owners, each for a share proportionate to the value of the thing:
If none of the things can be regarded as the principal thing, and if they belong
to different owners, these owners become co-owners of the new thing, each for
a share proportionate to the value of the thing.
It follows that the two constituent parts do not have to be entirely equal
or have exactly the same value for this provision to apply, but, if the value
of one of them considerably exceeds that of the other, that one would be
deemed to be the principal thing (art. 5:14 § 3 BW, discussed above in
§ 10.1) and its owner would acquire ownership of the new thing. As long
as neither thing has a value that considerably exceeds that of the other
thing(s), and common opinion does not regard either thing as the principal
part, no accession occurs and ownership of the new thing is shared proportionately to the value of the constituent things.
10.3.
Confusion
According to art. 5:15 BW, the preceding article on accession (art. 5:14
BW) applies mutatis mutandis where movables belonging to different owners
are amalgamated (mixed, blended) so as to form a single thing. This refers
to the process of confusion (in Dutch: vermenging): the commingling of
substances or objects that cannot be individualized amongst themselves: a
dash of milk is poured into a cup of tea, two gasses are joined in a gas tank,
two loads of potatoes are stored together in a potato silo etc. Whether or
not a chemical reaction occurs, is irrelevant, but the process should not
involve any creative work, as the process would then count as specification
(art. 5:16 BW).221
Article 5:15 applies only if one of the constituent things is a component
part and another the principal thing (according to the criteria of art. 3:4
BW) and the constituent things belonged to different owners. If, for example, a sugar cube belonging to A is thrown into B’s coffee, B would become
221
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the owner of the new thing ‘tea-with-sugar’ (the cup of tea would be the
principal thing, according to both the criteria of art. 3:4 BW, common
opinion, and the different values). If two similar things are commingled
(e.g. two loads of flour), there will be no principal thing according to common opinion, so the different values of the two loads will be decisive: if the
value (here this is the same as: quantity) of one load considerably exceeds
that of the other, then there is a principal thing and a component part, and
therefore confusion occurs.
Confusion has to be distinguished from the phenomenon called ‘improper confusion’ (in Dutch: oneigenlijke vermenging): the process by which
things that can be individualized become mixed-up. This occurs when cars,
animals, machinery with registration numbers, stock, numbered bank notes
etc. are mingled.222 Confusion does not occur in these cases, so the mingling
has no proprietary effect. The only legal effect the process may have is that
the owners of the different objects are not able to prove which things are
theirs, and so they will not succeed in revindicating their belongings. This
problem does not belong to the realm of property law, but to that of the
law of evidence.
The leading case in this field is HR 12-1-1068, NJ 1968, 274 (Teixeira de Mattos): different owners had deposited four depositary receipts for
shares with a bank, which went bankrupt. In the bankrupt’s estate only four
depositary receipts were found, but in the past the receipts had been part
of a constantly changing stock portfolio and their numbers had not been
noted. The depositors were not entitled to revindicate the four receipts as
they were unable to prove that these four receipts were the same receipts
they had deposited.223
10.4.
Specification
As in the case of accession and confusion, through specification (in Dutch:
zaaksvorming) a new thing is created. In this case, the creative process is
crucial: it has to be an essentially new thing: the “design” has to be so important that the value of the new thing is, for a large part, made up by
it.224 Examples are the creation of a valuable work of art out of a couple of
222
223
224
The examples are given by Pitlo / Reehuis, Heisterkamp, Goederenrecht no. 516.
This problem no longer occurs due to the arrival of book-entry securities, which are
characterized by giro-transfer: see Pitlo / Reehuis, Heisterkamp, Goederenrecht no.
516, Snijders / Rank-Berenschot, Goederenrecht, no. 171, and Haentjens, Harmonisation of Securities Law. Custody and Transfer of Securities in European Private Law,
Chapter 7.
Parl. Gesch Boek 5., p. 109.
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pipes of limited value by a sculptor or of a culinary masterpiece out of some
ordinary ingredients by a chef.
Because of the emphasis on the creative element in the coming into
existence of the new thing (in this context sometimes called a novum), the
proprietary consequences differ from those of accession or confusion. The
basic rule, however, is the same; see art. 5:16 § 1 BW:
If a person creates a new thing out of one or more movable things, this thing
is owned by the owner of the original things. The two preceding articles apply
mutatis mutandis where these things belonged to different owners.
In principle, therefore, the creator acquires the ownership of the new thing
only if he was the owner of the original things. If he was not, the new thing
is acquired by the owner of the original things, and if there were different
owners one has to differentiate: if a principal thing and component part can
be distinguished, the owner of the principal thing becomes the owner of the
newly created thing, otherwise the original owners acquire co-ownership
proportionate to the value of their thing.
Paragraph 2 provides an exception when the specification took place for
the specificator himself: he acquires ownership of the new thing, whether or
not he was the owner of the original things, provided the costs of creation225
justify this outcome. Art. 5:16 § 2 BW provides the following:
If a person creates a thing for himself, or has such a thing so created in whole
or in part out of one or more movable things not belonging to him, he becomes
owner of the new thing, unless the costs of creation are so low as not to justify
this result.
Obviously, this is a very important provision: industrial manufacturing,
for example, involves specification on a massive scale. The effect of the
provision is that reservation of title is not a useful security instrument
in the transfer of raw materials or semi-finished products: if the acquirer
uses them in a way that constitutes specification, all previous proprietary
rights established in them expire due to the original acquisition by the
specificator.226
225
226
Costs of labour included. The Hoge Raad decided (in HR 5-10-1990, NJ 1992, 226
(Breda / St. Antonius)) that for the question who acquires ownership by the specification, the limited value of the used materials compared to the labour costs is in
principle irrelevant.
See especially O.K. Brahn, Toelevering van voorwerpen onder eigendomsvoorbehoud bij
industriële fabricage volgens huidig en komend recht (Kluwer: Deventer 1984).
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For the application of art. 5:16 § 2 BW, it is irrelevant whether the
specificator creates the new thing himself or has someone else do so for him.
This is only logical: the owner of a factory will not perform the specification
himself, but will leave if to the factory workers to perform the actual manufacturing. The process, however, takes place on his behalf (and according
to the designs he has ordered to be drawn up).
According to the third paragraph, the first two paragraphs apply mutatis
mutandis to the transformation of materials into a new material or to the
cultivation of plants. An example of ‘transformation of materials’ is the
processing of raw petroleum into petrol and other products of which the
combined value is many times greater than that of the original petroleum.227 Similar examples can be given for the manufacturing processes in
the pharmaceutical industry.
The cultivation of plants out of seeds, seedlings or cuttings is also considered specification.228 A case law example is to be found in HR 5-12-1986,
NJ 1987, 745 (Gescheurde orchideeën) on the tearing in two of orchids. The
cultivation of orchids is performed by separating them into two parts, each
of which is a new orchid. The Hoge Raad acknowledged that this process
implied specification of new plants: the tearing is an irreversible process
by which new plants come into being with their own separate lives and
with, according to common opinion, their own identities, different from
the identity of the original plant. This implies that the reservation of title
with regard to the original plants expired.
10.5.
Accession of movables by land
Article 3:3 BW defines as immovable: land, unextracted minerals, plants
attached to land, buildings and works durably united with land – either directly or through incorporation with other buildings or works. Pursuant
to the second paragraph of the article, all things that are not immovable,
are movable.
The counterpart of this provision with regard to ownership is to be
found in art. 5:20 § 1 under e BW:
To the extent not otherwise provided for by law, ownership of land comprises:
(a) the surface;
(b) the layers of soil under the surface;
(c) subsoil water that has surfaced by means of a spring, well or pump;
227
228
Parl. gesch. Boek 5, p. 109.
Ibid., p. 110.
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(d) water that is on the land and not in direct connection with water on the
land of another person;
(e) buildings and works durably united with the land, either directly or through
incorporation with other buildings or works, to the extent that they are not
component parts of an immovable thing of another person; and
(f) plants united with the land.
From this provision we can conclude that buildings and works durably
united with the land have to be seen as component parts of the land. From
that moment on, they are dependent parts of the immovable with which
they are united.
Whether or not an object is durably united with the ground is an issue that is frequently taken to court. In the so-called Portacabin case,229 the
Hoge Raad ruled that an object is immovable, provided it is, with regard to
its nature and layout, intended to be durably united with the ground. If this
is the case it does not matter whether it is technically possible to move the
object easily or not. In determining whether the object is meant to be durably
united with the ground, it is necessary to look at the knowable intentions of
the constructor of the object or the person who has commissioned it.
The important Portacabin ruling has been much discussed since 1997,
and many new cases have found their way to court (regarding harbour
cranes, sea containers, tombstones230, etc.). Criticism of the ruling focuses
on the fact that the Portacabin criterion (an object is immovable if it is
intended to be durably united with the ground) leaves no room for common
opinion (except to determine the occurrence of ‘durability’ and ‘to unite’),
as the Hoge Raad explicitly stated.
The occurrence of the vertical accession of art. 5:20 § 1 under e BW can
be prevented by the establishment of a right of superficies (art 5:101 BW).
This enables the superficiary
to own or to acquire buildings, works or plantings in, on or above an immovable
thing belonging to another.
229
230
HR 31-10-1997, NJ 1998, 97 (Ontvanger / Rabobank).
HR 25-10-2002, NJ 2003, 241 (St. Barbara / Aartsbisdom Utrecht, Grafsteenarrest).
Tombstones are durably united with the cemetery, so (purusant to the Portacabin
criterion), the owner of the cemetery is the owner of the tombstones therein. This
is not altered by: the fact that common opinion awards ownership of a tombstone to
the relatives who have ordered and placed the stone; the fact that most tombstones
do not have a foundation and graves are cleared away after a couple of decades; the
fact that most cemeteries prefer to leave the ownership with the relatives (if only to
avoid liability for possible damage caused by the tombstones), as is usually expressed
in the general terms and conditions, used in their contracts.
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Accession is also prevented when a legal exception has been made, as is
expressed in the opening words of art. 5:20 § 1 BW. In the past, this was
done with regard to telecom cables in the Telecommunicatiewet (Statute
on Telecommunication): the Telecom company retains the ownership of
the cables it has laid in the land belonging to others. In 2003, the Hoge
Raad decided in a (tax) case involving similar cables that a cable network
is an immovable object (again: pursuant to the Portacabin criterion), even
though the process of burying cables into the ground does not lead to accession due to the legal exception to the rule of art. 5:20 § 1BW in the
Telecommunicatiewet.231
Recently, art. 5:20 BW was extended with a second paragraph, in which
a general exclusion of vertical accession is given for networks.232 Art. 5:20
§ 2 BW, which was put into force in February 2007, reads as follows:
Contrary to paragraph 1, the ownership of a network consisting of one or more
cables or wires, intended for the transportation of solid, liquid or gaseous substances of energy or of information, that is or will be constructed in, on or
above another’s land, belongs to the authorized constructor of that network or
his legal successor.
This is a very important amendment of the law (thanks to pressure from
Parliament on a reluctant Government), not wholly uncontroversial, intended to safeguard the interests of energy suppliers, telecom companies,
cable TV companies etcetera who ran the risk of losing the value of their –
usually very large – investments through vertical accession. The amendment precludes this accession and maintains the proprietary integrity of the
network, making it possible to transfer or to encumber it with a limited right
for the person who had constructed it, provided he was authorized to do so,
either on the basis of public law (e.g. a license or a statutory provision) or
on the basis of permission by the owner of the land (e.g. contractual or on
the basis of a limited right like emphyteusis, art. 5:85 BW).
11.
Good faith acquisition a non domino
In this section, only the protection of the acquirer a non domino of a movable thing, unregistered property, provided in art. 3:86 BW, will be dis-
231
232
HR 6-6-2003, BR 2003 / 9 (CAI).
This made the provision in the Telecommunicatiewet awarding ownership to the
Telecommunication Companies of the cables they have placed superfluous, and so
it was abolished.
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cussed.233 (See above for the system of third-party protection in Dutch
property law in general, § 5.1.3 sub B.) Art. 3:86 BW provides:
1. Although an alienator lacks the right to dispose of the property, a transfer
pursuant to articles 90, 91 or 93 of a movable thing, unregistered property, or a
right payable to bearer or order is valid, if the transfer is not by gratuitous title
and if the acquirer is in good faith.
2. Where property mentioned in paragraph 1, having been transferred other
than by gratuitous title and according to articles 90, 91 or 93, is encumbered
with a limited right, of which the acquirer does not know nor ought to have
known at the time of the transfer, this right is extinguished; in the case of a
transfer according to article 91, the extinction is subject to the same suspensive
condition as the delivery.
3. Nevertheless, the owner of a movable thing, who has lost its possession
through theft, may revindicate it during a period of three years from the day
of theft, unless
(a) the thing has been acquired by a natural person, not acting in the exercise
of a profession or business, from an alienator whose business it is to deal with
the public in similar things, otherwise than at a public sale, on business premises
destined for that purpose, being an immovable structure or part thereof with
the land belonging thereto, and provided that the alienator be in the ordinary
exercise of his business; or
(b) money or documents payable to bearer or order are involved.
4. Articles 316, 318 and 319 regarding the interruption of the prescription of a
right of action apply mutatis mutandis to the period referred to in the preceding
paragraph.
11.1.
Art. 3:86 BW applies whenever a movable thing, unregistered property, is
transferred by someone who lacks the right to dispose thereof. This includes
cases in which the alienator was never the owner and cases in which the
alienator’s right to dispose was annulled retroactively.
233
The subsidiary protection that art. 3:88 BW may provide, discussed above in § 5.1.3,
will not receive any attention here. See for an overview of the different systems of
protection of bona fide acquirers of movables within Europe (and remarks on a possible harmonization in this field), A.F. Salomons, How to draft new rules on the bona
fide acquisition of movables for Europe? Some remarks on method and content, in:
Rules for the Transfer of Movables. A Candidate for European Harmonisation or National
Reforms? Schriften zur Europäischen Rechtswissenschaft 6 (Wolfgang Faber and
Brigitta Lurger eds.; Sellier european law publishers: Munich 2008), p.141-154.
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Cases in which the right of the alienator was terminated without retroactive effect (through the fulfilment of a resolutive condition or through
the exercise of the right of recovery under art. 7:39 BW) are not covered
by art. 3:86 BW, as the acquirer did not acquire from someone who lacked
the right to dispose at the time of the transfer: that right was terminated
at a later stage.
The bona fide purchase of registered property and claims (as well as for
other property to which art. 3:86 BW does not apply) is covered by art. 3:88
BW; see above, § 5.1.3 sub B for the conditions (rather different from those
found in art. 3:86 BW) under which its protection can be invoked.
For several negotiable instruments there are separate provisions: e.g. for
bills of exchange art. 115 K, for promissory notes art. 176 K, for cheques
art. 198 K. For warehouse warrants (in Dutch: ceel234) a separate provision
is lacking, so art. 3:86 is applicable here.
For works of art (cultural objects in the sense of article 1 under 1 of
Directive No. 93 / 7 / EEC of the Council of the European Communities of
15 March 1993 on the return of cultural objects unlawfully removed from
the territory of a Member State (OJEC 1993 L 74) and objects that are
protected under the Cultural Heritage Preservation Act (Wet tot behoud van
cultuurbezit)) special rules are formulated in art. 3:86a BW.235
11.2.
Acquisition for value
For two reasons, art. 3:86 BW protects only in cases of acquisition for value.
The first reason is fairness: compared to someone who has made a counterperformance, it is less difficult for the donee to have to give up the thing he
has acquired a non domino. The fairness argument only applies if the owner
of the thing had himself acquired it for value, but the law does not make
an exception for cases in which the thing is revindicated by an owner who
had acquired it by gratuitous title. The second reason art. 3:86 BW requires
acquisition for value lies in the fact that the provision is considered to entail protection of business and trade (in Dutch: verkeersbescherming): in this
field, the principle of do ut des is considered an essential characteristic.236
234
235
Art. 7:607 BW.
In short, the rules amount to a limitation of the protection of the bona fide acquirer
of these works of art, but under certain circumstances the judge is entitled to award
the possessor an equitable remuneration. See A.F. Salomons, Richtlijn 93 / 7 / EEG
betreffende de teruggave van cultuurgoederen die op onrechtmatige wijze buiten
het grondgebied van een lidstaat zijn gebracht, in: De invloed van het Europese recht
op het Nederlandse privaatrecht. Serie Onderneming en Recht 42-II (A.S. Hartkamp,
C.H. Sieburg en L.A.D. Keus eds.; Kluwer: Deventer 2007), p. 153-177, at 175.
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The line between acquisition for value and gratuitous acquisition237 is
not a sharp one. A merely symbolical counter-performance is not sufficient,
but, on the other hand, it is not required that the counter-performance
has more or less the same value as the acquired object. If the price was
e.g. 50 % of the value, this could not be called gratuitous either.238 To be
entitled to the protection of art. 3:86 BW, it is not required that the price
has already been paid: it is sufficient that the transferor is entitled to a
counter-performance.
236
11.3.
Possession or physical control by transferor required?
Article 3:86 BW is essentially the codification of the case law of the Hoge
Raad since 1950. In that year, the Hoge Raad ruled239 that the acquirer a
non domino in good faith is entitled to protection against the fact that the
transferor lacks the right to dispose, but not against the absence of a valid
title or the absence of (valid) delivery. This ruling (as well as subsequent
rulings in which the 1950 decision was confirmed and elaborated) was
and is regarded as the acceptance of the ‘legitimation doctrine’ (in Dutch:
legitimatieleer) of the Amsterdam law professor Paul Scholten.
The basis of this doctrine is that the acquirer a non domino of a movable
is entitled to protection because he has relied upon the de facto power of
the transferor: that ‘real possession’ (in Dutch: reëel bezit) legitimizes the
transferor as the owner. The physical control of the transferor is therefore
a crucial element of the legitimation doctrine, and some authors assume
that the absence of physical control is an obstacle to the protection of the
acquirer a non domino.240 This has not been laid down in the new code
of 1992, however, and there is no recent case law on this question ei-
236
237
238
239
240
See on this subject further A.F. Salomons, De pijlers onder de vertrouwensbescherming van artikel 3:86 Nieuw BW, Ars Aequi 40 (1991) 10, p. 114-123.
Gratuitous acquisition (in Dutch: verkrijging om niet) is usually a gift, but this is not
necessarily so. E.g. when a possessor acquires ownership because the owner waives
his right: this acquisition is also gratuitous but is not a gift; see Snijders / RankBerenschot, Goederenrecht, p. 297.
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, p. 132.
HR 10-5-1950, NJ 1951, 1 (Damhof / Staat der Nederlanden).
See, for example, O.K. Brahn, Ons allernieuwste 2014, Weekblad voor Privaatrecht,
Notariaat en Registratie 5739 (1985), p. 333-342, at 341. See for a discussion and
further references A.F. Salomons, Inpassen of aanpassen? Vermogensrecht voor het
digitale tijdperk, Weekblad voor Privaatrecht, Notariaat en Registratie 6427 (2000),
p. 901-907.
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ther.241 Most authors therefore assume that the physical control of the
transferor is not required.242
11.4.
Acquisition of physical control by transferee required?
When a movable is delivered by constitutum possessorium, this delivery is
without effect with respect to the person who has a prior right to the thing
until the time when the thing has come into the hands of the acquirer, unless the third person has consented to the alienation; see art. 3:90 § 2 BW.
This implies that the acquirer a non domino is not saved from revindication
by the dispossessed owner as long as he leaves the thing in the hands of the
transferor or someone on his behalf: the delivery has no effect towards the
owner, which implies that the transfer is invalid with respect to the owner:
art. 3:86 BW protects against the absence of the right to dispose, but not
against the absence of a valid title or the absence of a valid delivery (see
above, § 11.3).
The effect and ratio of art. 3:90 § 2 BW has been discussed in more
detail above, see § 1.2.1, 2.3, 4.1.1 and 5.4.2 sub A.
11.5.
Specific requirements regarding transferor?
A distinction has to be made between the acquisition of a stolen thing
and the acquisition of a thing that has not been stolen (lost movables are
included in this category in view of the fact that the owner usually, at least
to some extent, is to blame for the loss, but not for the theft).
If a non-stolen thing is transferred, it is not relevant in which way the
transferor was enabled to deliver the thing to the acquirer who invokes
241
242
The most recent decision of the Hoge Raad on this issue is more than 50 years old:
in HR 29-2-1952, NJ 1953, 58 (Drukpersarrest), the Hoge Raad decided that the
acquirer should have relied on physical control by the transferor.
See Schut-Rodenburg, Bescherming van de verkrijger van roerende zaken (1986),
p. 80-82, W.G. Huijgen, Vuistpand en vruchtgebruik: onzekere (zekerheids)rechten, Weekblad voor Privaatrecht, Notariaat en Registratie 6181 (1995), p. 323-325 and
Weekblad voor Privaatrecht, Notariaat en Registratie 6199 (1995), p. 720-722, and A.F.
Salomons, Inpassen of aanpassen? Vermogensrecht voor het digitale tijdperk, p. 905 (arguing that retaining the doctrine that physical control by the transferor is required
is unwise in view of the rise of e-commerce: when someone buys via the internet, he
does not rely upon any real possession of the transferor, because he is not a witness
to that possession). For a recent elaboration see A.F. Salomons, How to draft new
rules on the bona fide acquisition of movables for Europe? p. 151-154.
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art. 3:86 BW; usually embezzlement by a detentor, but it may also be that
the transferor had acquired the thing from the owner but at a later stage the
title of his transfer was annulled (which leads to a return of ownership with
retroactive effect, but not to a return of possession). Another possibility is
that the thing had been lost by the owner and was found by the transferor;
in that case it depends on his behaviour whether he is to be regarded as
a possessor or as a detentor. In any case: in these instances there are no
specific requirements regarding the transferor.
This is different if the thing was stolen. In that case, the additional
requirements of art. 3:86 § 3 under a BW have to be met.243 These requirements are as follows:
1. With regard to the transferee:
– the thing has been acquired by a natural person; and
– this acquirer was not acting in the exercise of a profession or business;
2. With regard to the transferor:
– he has acquired from an alienator whose business it is to deal with the
public in similar things;
– otherwise than at a public sale; and
– the alienator was in the ordinary exercise of his business.
3. With regard to the place of the transaction or, as the case may be, the
place where the business of the transferor is established:
– on business premises destined for that purpose, being an immovable
structure or part thereof with the land belonging thereto.
It follows from these requirements that acquisition at a public auction or at a
market is excluded. The legislator has tried to balance the need to fight crime
(to discourage theft by hampering the trade in stolen goods) against the need
to protect those who are dependent on the acquisition of used goods. The
outcome of this is to be found in art. 3:86 § 3 under a BW: protection of the
buyer of a stolen movable is possible if he is a consumer, the seller a professional, and the purchase took place in a location where the buyer did not
243
This is also the case when the theft was due to gross negligence; see HR 18-1-1991,
NJ 1992, 667 (Centraal Beheer / Gritter): the owner of a valuable car had left this
car unattended for several weeks in the car park of an international airport, which
was entirely open to the public, while all car registration papers where left in the
car. Despite his carelessness, the owner had not lost the right to revindicate the
car when it was stolen and transferred to a third person (who was obviously not
entitled to invoke the protection of the acquirer a non domino of (the forerunner of) art. 3:86 BW). The decision was affirmed in HR 17-5-1991, NJ 1992, 668
(Martinistad-Zomerhuis).
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have to be aware of the presence of stolen goods. See on the criteria for this
protection, HR 14-11-1997, NJ 1998, 147 (Gestolen caravan).244
11.6.
Good faith
The acquirer has – at the moment of the acquisition – to be in good faith
with regard to the right of the transferor to dispose of the thing. If the issue
is taken to court, the acquirer has to state the circumstances which justify
that he took the transferor for being entitled to dispose and which rule out
that he had had reason to be doubtful in this respect. If these circumstances
validate an appeal to good faith, the burden of proof of the incorrectness of
the buyer’s statements rests on the dispossessed owner.245
Pursuant to art. 3:11 BW, the acquirer
is not acting in good faith if he knew the facts or the law to which his good faith
must relate or if, in the given circumstances, he should have known them.
This implies a duty to inquire into the right of the transferor to dispose,
under penalty of not being entitled to invoke art. 3:86 BW, even if it was
not possible to start an inquiry (art. 3:11 BW last sentence):
Impossibility to inquire does not prevent the person, who had good reasons to
be in doubt, from being considered as someone who should have known the
facts or the law.
As we have just seen, whether or not the acquirer should have known that
the transferor was not entitled to dispose is dependent upon the circumstances. Therefore, it is not possible to give a general answer to the question whether only actual knowledge and gross negligence or even slight
negligence exclude good faith: when someone buys a car at a market known
to be a place where stolen and embezzled cars are frequently traded, a very
244
245
This case concerned the sale of a stolen caravan. All requirements for the protection
of the buyer were met, except for one: there was no immovable structure in which
the seller conducted his business. The Hoge Raad decided that the buyer could nevertheless invoke art. 3:86 § 3 under a BW: in this case protection was in accordance
with the considerations that had led the legislator to enact the provision in the first
place, as a movable trailer was at hand on the premises of the seller and, looking like
an immovable structure, served as his sales-office. See on this case A.F. Salomons,
Plaats voor derdenbescherming?, Weekblad voor Privaatrecht, Notariaat en Registratie
6298 (1998), p. 46-48.
Parl.Gesch. Boek 3, p. 1214.
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thorough inquiry into the right of the transferor is expected. On the other
hand, in the case of the purchase of a second-hand book of little value in
an antiquarian bookshop with an excellent reputation, no such far-reaching
inquiries are required. In case law, the duty to inquire is elaborated primarily
in the context of car sales.
An additional rule is found in art. 3:87 § 1 BW:246
An acquirer, who is asked within three years from his acquisition to identify
the alienator, must, without delay, provide all information that is necessary to
trace that person or that he could have considered as being sufficient for that
purpose at the time of his acquisition. If he does not comply with this obligation, he may not invoke the protection that articles 86 and 86a afford to an
acquirer in good faith.
This entails a duty – ending three years after the acquisition – of the acquirer to give the original owner any information needed to trace the transferor.
This is in addition to the duty to inquire under art. 3:11 BW. If the acquirer
refuses or is unable to give the required information, he is not entitled to
invoke art. 3:86 BW. As in the case of art. 3:11 BW, the scope of the duty
of art. 3:87 BW depends upon the circumstances: when someone buys a
valuable object from a salesman at the door, it is not sufficient merely to
rely upon the name and address stated by the salesman, but in the case of
a purchase at a regular market the information acquired about the seller
may be less detailed.247 See on the wegwijsplicht (“duty to show the way”),
art. 3:87 BW; also above, § 5.1.3 sub B.
11.7.
Right to buy movable back from a good faith acquirer?
When art. 3:86 BW applies, i.e. when its protection is awarded, the transferee becomes the owner. This means that the provision functions not
merely as a safeguard, a defence against the revindication of the dispossessed
owner, but has “real” effect: ownership is transferred despite the absence of
the right to dispose on the part of the “second hand” (the transferor).
The authors on the subject are divided on the question whether
art. 3:86 BW (as well as the other provisions that award proprietary third
party protection, like art. 3:88 BW and art. 7:42 BW) has ipso jure effect
or its protection should be invoked in order to be awarded. In the latter
case, the acquirer a non domino is free to choose whether or not he wants
246
247
The second paragraph excludes money from the scope of this rule.
See Parl.Gesch. Boek 3, p. 344-346.
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to be protected (at the expense of the former owner), in the former case he
becomes the owner, whether he likes it or not.
The verbatim text of art. 3:86 BW indicates that the legislator was of
the opinion that the protection should work ipso jure, but the authors who
reject this view and favour a system in which third party protection is a
competence argue that it is not up to the legislator to decide on dogmatic
issues like this. The latter view seems to be prevailing.248 A solid argument
against this view is that acquisitive prescription (see below, § 12) also works
ipso facto, and should even be applied by the judge ex officio; as protection of
the acquirer a non domino and acquisition via prescription are related topics
(the former has even been called an ‘immediate prescription’ or prescription
instantanée249), this is an argument to apply a similar protection system.250
The system described here was enacted in the new Burgerlijk Wetboek of
1992. In the decades in which work on the code was in progress (the commission to draft a new civil code was awarded in 1947) many different drafts
on this issue circulated before the final text of art. 3:86 BW was adopted.
In the original draft a right was included for the dispossessed owner to buy
the movable back from the acquirer a non domino. The first sentence of the
first paragraph of the draft-article stated that the acquisition a non domino
for value is valid in the case of good faith. The draft-article added:251
He who, pursuant to the provision of the first sentence of the first paragraph,
has lost his right is entitled within three years afterwards to demand the transfer
of the thing by the owner, against remuneration of the damage that the owner
suffers by the restitution of the thing. The owner is entitled to set a reasonable
term for the demand of restitution.
This repurchase right (in Dutch: terugkooprecht) was not included in the
final draft. One of the reasons was that it would probably lead to more court
cases than the system that was finally chosen. Furthermore, the legislator
preferred a system that was not too different from current law (to enhance
support for the implementation of the new code).
248
249
250
251
See e.g. Asser-Mijnssen-De Haan, Goederenrecht 3-I no. 306 and B.W.M. NieskensIsphording and A.E.M. van der Putt-Lauwers, Derdenbescherming. Monografieën
Nieuw BW A-22 (3rd ed.; Kluwer: Deventer 2002) § 1.6.
See A.F. Salomons, 2014 tot 1950, p. 85.
See Parl.Gesch. Boek 3, p. 415-416. See for a defence of the view that art. 3:86 BW
works ipso facto further, A.F. Salomons, Recht voor verstrooiden, in: J.L.P. Cahenbundel (Gouda Quint: Deventer 1997), p. 301-312, at 310.
See Parl.Gesch. Boek 3, p. 321 ff.
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Acquisition of a movable encumbered with a limited right
The problem that arises when someone acquirers a movable, unaware of
the fact that it is encumbered with a right of pledge or usufruct of a third
person, is solved in the second paragraph of art. 3:86 BW:
Where property mentioned in paragraph 1, having been transferred other than
by gratuitous title and according to articles 90, 91 or 93, is encumbered with
a limited right of which the acquirer does not know nor ought to have known
at the time of the transfer, this right is extinguished; in the case of a transfer
according to article 91, the extinction is subject to the same suspensive condition as the delivery.
It is irrelevant whether the transfer was performed by someone who was
entitled to dispose of it or by someone who was not: in the latter case there
is a concurrence of the protection of § 1 (against the dispossessed owner)
and that of § 2 (against the pledgeholder or usufructuary).
12.
Acquisitive prescription of movable property
The institution of acquisitive prescription is, ultimately, based on the public
interest: after a certain amount of time in which the actual situation (A
detains an object for himself) differs from the legal situation (the object
is owned by B), the interests of the community at large require, in view
of legal certainty, that both situations are reconciled again: possessor A
acquires the object, B loses his ownership.
This implies that the interests of the original owner are sacrificed to the
general interest, but a – sometimes entirely theoretical – justification for
this is found in the fact that he had not used the time period in which he
had lost possession of the thing to revindicate it from the possessor. This in
itself is an argument for long prescription periods, whereas public interest
would be best served by relatively short prescription periods. The rules on
prescription, therefore, are the result of a balancing of conflicting interests:
those of the original owner and his legal successors on the one hand and
those of the public on the other.252
A rather controversial form of acquisitive prescription is found in
art. 3:105 BW, to be discussed below in § 12.2, which benefits even the possessor not in good faith (e.g. a thief). This form of prescription in particular
indicates that acquisitive prescription owes its existence to the public inter-
252
See e.g. Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 329.
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est and not, at least not primarily, to the interests of the possessor, as those
of a possessor not in good faith obviously carry little weight.
12.1.
Requirements for acquisitive prescription
To qualify for acquisitive prescription pursuant to art. 3:99 BW, uninterrupted possession is required during:
– 3 years in the case of movable things that are not registered property
and rights under documents payable to bearer and order (stolen objects
are not excluded);
– 10 years for other property.253
The three year prescription does not apply to Dutch movable cultural
property,254 pursuant to the second paragraph of art. 3:99 BW. This does not
mean that Dutch cultural property cannot be acquired through prescription
altogether: there is no similar exclusion of art. 3:105 BW.255
The prescription starts with the commencement of the day following
the beginning of the possession (art. 3:101 BW). The term of acquisition is
complete when the last day of the prescribed period has elapsed.
According to art. 3:102 BW, a person who succeeds to the possession
of another by general title continues an already running prescription, even
if he is not in good faith (as the acquirer under general title continues the
possession with the same quality and subject to the same defects as that of
the predecessors; art. 3:116 BW).
If someone has acquired possession from another person otherwise than
by general title, the continuation of a running prescription requires that
the possessor be in good faith (art. 3:102 § 2). If the predecessor was not in
good faith but the acquirer is, a new prescription period commences at the
moment when possession is given to the acquirer.
253
254
255
See also Parl.Gesch. Boek 3, p. 425: prescription is possible for every patrimonial
right that is not entirely personal.
To be more precise: to movables that, pursuant to the Wet tot behoud van cultuurbezit
(Cultural Heritage Preservation Act), have been designated as protected objects, or
which form part of a public collection or an inventory list as referred to in Article
14a, paragraph 2, of that Act, provided that possession has commenced after that
designation or during the time they formed part of that collection or inventory.
Art. 3:99 § 2 BW was incorporated in the civil code as part of the implementation
of Directive 93 / 7on the return of cultural objects. See the following footnote, and
Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 342a.
See A.F. Salomons, Richtlijn 93 / 7 / EEG betreffende de teruggave van cultuurgoederen
die op onrechtmatige wijze buiten het grondgebied van een lidstaat zijn gebracht, p. 175.
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Prescription requires possession in good faith.256 Whether someone is a
possessor has to be determined, according to common opinion, taking into
account the rules of art. 3:109-117 BW, and, otherwise, the facts as they
appear. (See for an elaboration of this provision of art. 3:108, BW above,
§ 2.1.) The possessor is in good faith if he believes himself to be the titleholder and is reasonably justified in that belief. Once a possessor is in good
faith, he is considered to remain so. Good faith is presumed; absence of
good faith must be proven (art. 3:118 § 1-3 BW). In art. 3:105 BW another
form of prescription is found, for which good faith is not required (see
below, § 12.2).
There are no qualifications as to the form of possession. In particular,
indirect possession is not excluded. This means that even in the case of a
delivery constituto possessorio the transferee is entitled to acquisitive prescription, even though this transfer is not ‘public’: legal certainty does not
seem to be at stake. Some have argued, for this reason, that it should be accepted that art. 3:99 § 1 BW does not apply to possession that was acquired
constituto possessorio.257
The new civil code does not explicitly prescribe that the possession
be public, unequivocal and continuous, as the previous civil code did. In
the opinion of the legislator, these requirements are incorporated – as far
as they have right to exist – in the notion of having possession.258 This
means that once it has been established that possession was acquired, it is
not possible to challenge the acquisition of ownership by a possessor, who
acquired it on the basis of acquisitive prescription, on the ground that his
possession was not public, unequivocal or continuous. This challenges the
correctness of the view that art. 3:99 § 1 BW does not apply to possession
acquired constituto possessorio.
As we have seen, art. 3:99 § 1 BW requires that the possession be uninterrupted. The possessor does not have to prove that his possession was
continuous; possession that has begun continues until it is evident that
the possessor abandoned the property or when another acquires possession
of it (irrespective of how this occurred: by taking possession, by transfer of
256
257
258
For prescription of a succession, possession during a certain period is insufficient.
Art. 3:100 BW provides: A person who has taken possession of a succession cannot
acquire that succession by prescription, nor the property belonging to it, to the detriment of
the title-holder until after the latter’s action to claim that succession has been prescribed.
See in particular Snijders / Rank-Berenschot, Goederenrecht, no. 251.
See Parl.Gesch. Boek 3, p. 408. See also A.C. van Schaick, Rechtsgevolgen en functies
van bezit en houderschap. Monografieën Nieuw BW A-14 (Kluwer: Deventer 2003),
p. 19, according to whom the requirements still apply, but – more generally – to the
notion of possession itself (the rights and benefits attached to possession arise only
if the possession is free of ‘objective possession flaws’).
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possession, or by succession) (art. 3:117 BW). Interruption or extension
of prescription of the right of action to terminate possession interrupts or
extends acquisitive prescription accordingly (art. 3:104 BW). Involuntary
loss of property does not interrupt prescription, provided that possession is
recovered within a year or an action is instituted within a year that leads
to such recovery (art. 3:103 BW).
Interruption of prescription is caused:
– by the institution of an action or by any other act of judicial recourse
instituted in the required form by the person entitled to do so (art. 3:316
§ 1 BW);259
– by an act to obtain a binding opinion, provided that the other party is
expeditiously notified of it and that a binding opinion actually results
(art. 3:316 § 3 BW);260
– With regard to a right of action to claim performance of an obligation: by a written warning or by a written communication in which
the creditor unequivocally reserves his right to performance (art. 3:317
§ 1 BW);
– With regard to other rights of action: by a written warning followed
within six months by an act of interruption as described in art. 3:316
BW (art. 3:317 § 2 BW);
– With regard to the right of action as against the person who acknowledges the right: by acknowledgment of the right whose protection is
served by a right of action (art. 3:318 BW).
According to art. 3:321 BW, there is cause for extension of prescription:
(a) Between spouses not separated from bed and board;
(b) Between a legal representative and the incapable person whom he represents;
(c) Between an administrator and the beneficiary for whom he administers with
respect to claims concerning the administration;
(d) Between legal persons and their directors;
(e) Between a succession accepted under the benefit of inventory and an heir;
(f) Between the creditor and a debtor who deliberately hides the existence of
the debt or its exigibility.
259
260
Where an action that has been instituted is not upheld, prescription is not interrupted, unless, within six months after the final judgment or other termination of
the case, a new action is instituted and is as yet upheld. Where an act of judicial
recourse is withdrawn, prescription is not interrupted (art. 3:316 § 2 BW).
Where this is not the case, art. 3:316 § 2 BW (see previous footnote) applies mutatis
mutandis.
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The possessor who acquires ownership by virtue of acquisitive prescription is not liable for unjustified enrichment (nor for tort): the enrichment
caused by the prescription provisions is justified by the fact that the legislator, after balancing the conflicting interests, has authorized the shift
of property from the owner to the possessor. This is even the case if the
acquisition of possession had been gratuitous.
In this respect, the prescription provisions differ from those on accession, confusion and specification: acquisition of ownership through one
of these facts does not qualify as “justified enrichment”, as the legislator
did not have the intention to authorize any shift of property here: the
legislator merely had to attribute ownership with regard to a newly created
object.261
In the case of acquisitive prescription of a movable encumbered with a
limited right, that limited right will continue to exist if the acquirer had possessed the movable while observing that right: otherwise he would acquire
more than he had possessed. In the case the acquirer was not aware of the
limited right, he will acquire the movable unencumbered (unless the prescription was interrupted). According to the legislator, the unencumbered
acquisition can be regarded as the acquisition of separate property.262
12.2.
“Thief becomes owner”:
liberative prescription with acquisitive effect
Unlike German law, Dutch law is not familiar with the phenomenon of
limitations on the right of ownership (Verjährung des Eigentums). However,
art. 3:105 BW provides a form of prescription, the effects of which bear similarities to limitation of ownership. Art. 3:105 § 1 BW reads as follows:
A person who possesses property at the time of the completion of the prescription of the right of action to terminate possession, acquires the property even
if his possession was not in good faith.
This provision has already been mentioned above, in § 2.2 under 3.2 and
passim. Its effect is commonly referred to by the slogan “thief becomes
261
262
See J. Spier, T. Hartlief, G.E. van Maanen and R.D. Vriesendorp, Verbintenissen
uit de wet en schadevergoeding. Studiereeks burgerlijk recht 5 (2nd edition; Kluwer:
Deventer 2000), no. 316.
Parl.Gesch. Boek 3, p. 417. See Pitlo / Reehuis, Heisterkamp, Goederenrecht,
no. 349.
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owner”: a thief who succeeds in hiding his loot for 20 years263 acquires ownership and can no longer be held accountable (neither in civil nor in penal
law).264 The hiding of the loot may constitute a separate unlawful act, but
this does not help the former owner as the right of action to end the unlawful hiding of the loot is prescribed simultaneously with the prescription of
the revindication.265 The same applies mutatis mutandis to the prescription
of the right of action to terminate the possession of the thief on the basis of
the fact that he is not the title-holder of the property. See art. 3:314 BW:
1. The prescription period of a right of action to terminate an unlawful situation begins to run at the beginning of the day following the one on which the
immediate termination of that situation can be claimed.
2. The prescription period of a right of action to terminate the possession of a
non-title-holder begins to run at the beginning of the day following the one on
which the non-title-holder has become possessor or on which the immediate
termination of the situation of which his possession forms the continuation
could be claimed.
The acquisition of art. 3:105 BW takes place on behalf of the actual possessor, irrespective of how long his own possession has lasted and irrespective of whether his possession was interrupted or not. If the property was
263
264
265
See art. 3:306 BW: Unless otherwise provided by law, the prescription period for
rights of action is 20 years.
See for a discussion on the merits of art. 3:105 BW, e.g. C.J.H. Brunner, Dief wordt
eigenaar, in: Quod Licet (KLeijn-bundel) (Kluwer: Deventer 1992), p. 45-53.; R.J.Q.
Klomp, Dieven met geduld. Over verkrijgende verjaring te kwader trouw, in: Tijd
en onzekerheid. BW-krant Jaarboek 16 (Kluwer: Deventer 2000), p. 59-73, and P.
Neleman, Thieves’ paradise revisited, in: Brunner-bundel (Kluwer: Deventer 1994),
p. 293-302.
There has been some debate – already mentioned above, § 2.1.4 – on the question
whether a thief who hides his loot, in order to acquire ownership after 20 years,
would be in a position to benefit from art. 3:105 BW: according to doctrine, prescription requires “public possession” (which was required explicitly in the old civil), and
if that would also apply here, the hiding thief would not qualify. This is the view of
A.C. van Schaick, Dief wordt vaak geen eigenaar, Weekblad voor Privaatrecht, Notariaat en Registratie 6617 (2005), p. 289-290. See for a different view A.F. Salomons,
Dief wordt doorgaans wel bezitter, Weekblad voor Privaatrecht, Notariaat en Registratie
6639 (2005), p. 803-806. See also J.E. Jansen, Reactie op “Dief wordt vaak geen eigenaar” van mr. A.C. van Schaick, Weekblad voor privaatrecht, notariaat en registratie
6639 (2005), p. 801-802.
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encumbered with a limited right, this right remains valid until the right of
action of the title-holder of that limited right is prescribed.266
The latter rule not only applies in the case of acquisition via art. 3:105
BW, but is valid in all cases where a title-holder is confronted with a limited right and the right of action of the holder of that limited right is prescribed: this fact causes the limited right to be extinguished, pursuant to
art. 3:106 BW, even if the title-holder was aware of the existence of the
limited right:
To the extent that the exercise of a limited right is prevented by a situation
incompatible with the right, that right is extinguished by the prescription of
the right of action of the holder of the limited right against the holder of the
principal right to terminate that situation.
This general provision has taken the place of the non usus-rules, which
were to be found in the former civil code: the limited rights of usufruct and
servitude prescribed in the case they were not used for a period of 30 years;
art. 854 and 754 BW-1838.267
13.
Other forms of original acquisition
13.1.
Finding
The finder268 of a vacant269 movable thing acquires ownership thereof after
one year, provided he has complied with a set of requirements and the
thing is still in his control or in the control of the Municipality (art. 5:6
§ 1 BW).270
266
267
268
269
270
See Parl.Gesch. Boek 3, p. 417, and Pitlo / Reehuis, Heisterkamp, Goederenrecht, no.
349 i.f.
The ‘honest finder’, who complies with the requirements enumerated in the Burgerlijk Wetboek, is no more than detentor of the thing, and would therefore never qualify
for acquisitive prescription. The ‘dishonest finder’ is someone who takes possession
of a vacant thing he knows not to be his and who does not comply with the legal
requirements. The latter person qualifies as possessor in bad faith, who is not entitled
to the acquisitive prescription of art. 3:99 BW, but who can nevertheless, despite
his lack of good faith, acquire ownership after 20 years via art. 3:105 BW. See for
art. 3:105 BW above, § 12.2.
In other words: unattended, ‘ownerless’ (in Dutch: onbeheerd).
Art. 5:11 BW adds the rule that if the finder who has become owner of the thing
deposited with a Municipality does not, within one month from his acquisition,
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If the finder has voluntarily deposited the thing with a Municipality
and it is one of the non-valuable things designated by or pursuant to a
regulation, the finder does not acquire ownership: the burgomaster may,
three months after the deposit, sell the thing on behalf of the Municipality, transfer it to a third person by gratuitous title or destroy it (§ 2). The
same applies in other cases, but then after one year (§ 3). However, these
rules do not apply where the owner or another person entitled to receive
the thing has presented himself for that purpose to the depositary before
the expiry of the applicable term or, in the cases provided for in § 2 and
3, on a date thereafter when the Municipality can still reasonably put the
thing at his disposal.
The requirements with which the finder has to comply are enumerated
in art. 5:5 § 1 BW:
He who finds and takes control of a vacant thing is obliged:
(a) to declare the discovery to the civil servant so designated, unless he has
forthwith, after the discovery, given notice of it to the person whom he considers to be the owner or to be entitled to receive the thing;
(b) if the discovery has been made in a dwelling, building or means of transportation, to communicate it promptly to the person inhabiting the dwelling
or the person using or exploiting the building or means of transportation, or
to the person who, on the latter’s behalf, supervises it, unless he has forthwith
after the discovery given notice of it to the person whom he could consider as
owner or as entitled to receive the thing; and
(c) to deposit the thing with the Municipality demanding it.
The finder is at all times entitled to deposit the thing with any Municipality. If he does not do so, he is obliged to ensure the conservation and the
maintenance of the thing (art. 5:5 § 3 BW). By giving the thing without
delay to the inhabitant of the dwelling, to the person using or exploiting
the space where the discovery has been made, or to the person who on the
latter’s behalf supervises such space, the finder can transmit his juridical
position to such inhabitant, user or person exploiting, including all obligations attached thereto, but there is no right to a reward (art. 5:7 BW). This
refers to art. 5:10 § 2, where it is said that the finder who has complied with
the obligations incumbent upon him is entitled, according to the circumstances, to a reasonable reward.
This reward (in Dutch: vindersloon) is not a fixed sum (e.g. a percentage
of the value of the thing) but a ‘reasonable’ amount to be determined by the
apply to the Municipality to take delivery of the thing, the burgomaster is entitled
to sell it on behalf of the Municipality, to transfer it to a third person by gratuitous
title, or to destroy it.
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court, taking into account circumstances like the effort made by the finder
and the care he has taken.271 The Municipality is not entitled to vindersloon.
As we have seen above in § 14.2, the finder is not awarded a right of retention in the lost thing to ensure payment of the reward.
Articles 5:8 and 5:9 BW give a couple of specific provisions with regard
to the duties of the Municipality after deposit of the thing by the finder:
– If the thing is susceptible of loss or rapid deterioration, or if the Municipality can no longer be required to keep it because of disproportionately
high costs or other prejudice, the burgomaster is entitled to sell it. In
this and in the following two cases, the proceeds take the place of the
thing;
– If the thing does not lend itself to being sold, the burgomaster is entitled to transfer its ownership to a third person by gratuitous title or to
destroy it;
– If the thing found is an animal, the burgomaster is entitled, two weeks
after it has been taken into custody, to transfer its ownership to a third
person, if possible against the payment of a purchase price. Otherwise,
the burgomaster is entitled to have the animal destroyed. The period
of two weeks need not be observed if the costs of keeping the animal
during that time are disproportionately high or if destruction is required
for medical reasons;
– Where the thing deposited with the Municipality consists of a sum of
money, the Municipality is only obliged to pay an equal amount to the
person who can claim it; this obligation ceases once the burgomaster
would have been entitled to sell it on behalf of the Municipality.272
With regard to the person claiming the thing from the Municipality, or
from the finder who has complied with the abovementioned requirements,
art. 5:10 § 1 BW provides that he must reimburse the costs of keeping and
maintening, and of locating the owner or other person entitled to receive
the thing. Furthermore, the Municipality or finder is entitled to suspend
the return of the thing until this obligation has been performed. If the
person who revindicates the thing has not paid the costs owed within a
month from the time they have been indicated to him, he is deemed to
have abandoned his right to the thing.273
271
272
273
This applies also to the ‘professional finder’, who tracks down lost objects in order
to receive the vindersloon; see Hoge Raad 25-10-1996, NJ 1998, 16.
The latter exception refers to the provisions of art. 5:6 § 2-3 and 11 BW, authorizing
the burgomaster to sell the thing after a certain period of time has passed.
See on the provisions on finding Pitlo / Reehuis, Heisterkamp, Goederenrecht, no.
500-504.
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13.2.
Occupation
Ownership of movables can be acquired by means of occupation (in Dutch:
occupatie or toeëigening). See art. 5:4 BW:
A person who takes possession of a movable thing that does not belong to
anybody acquires ownership thereof.
It has to be emphasized that occupation is a means of acquiring possession
(see also, art. 3:113 § 1 BW: A person takes possession of property by acquiring actual control of it, see above, § 2.2.3 sub A). Only in case the property
concerned is a movable thing which does not belong to anybody (in other
words: the thing is a res nullius274) the occupation is accompanied by acquisition
of ownership.
A res nullius is either a thing that has never had an owner or a res
derelicta. With regard to the latter category, art. 5:18 BW provides the following (also see below, § 16):
The owner who abandons possession of a moveable thing, with the intent of
divesting himself of ownership, loses ownership of it.
A special category is animals that have lived in captivity but have gained
their freedom without being recaptured. Art. 5:19 BW provides:
1. The owner of domesticated animals loses ownership of them where they have
become wild after having escaped from his custody.
2. The owner of other animals loses ownership of them where they gain freedom and the owner does not forthwith attempt to recapture them or stops his
attempts to do so.
In both cases, the animals become res nullius and therefore susceptible to
acquisition by others via occupation.275
13.3.
Separation
Who is entitled to the fruits276 of a thing? In principle, the owner of the
thing, see art. 5: 1 § 3 BW:
274
275
An immovable can never be a res nullius pursuant to art. 5:24 BW: immovables that
have no other owner belong to the State.
See Snijders / Rank-Berenschot, Goederenrecht no. 206 and 261-262.
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Without prejudice to the rights of others, the owner of the thing becomes owner
of the fruits once separated.276
An important category of these “rights of others” are rights of enjoyment,
such as the personal right of lease and the proprietary rights of usufruct, emphyteusis and superficies. With regard to these rights of enjoyment, art. 5:17
BW provides the following:
The person who, pursuant to his right of enjoyment of a thing, is entitled to its
fruits acquires the ownership thereof upon their separation.
However, art. 5:17 BW is of limited importance, as for most of these rights
there are separate provisions with regards to fruits. See, e.g. for usufruct,
the lex specialis of art. 3:216 BW:277
The usufructuary is entitled to all fruits that become separated or exigible during
the usufruct. At the time of establishment of the usufruct, it may be specified
what, in relation to the usufruct, must be considered as fruits.
Furthermore, there is a general exception in art. 3:120 § 3 BW, attributing
separated natural fruits (as well as civil fruits that have become exigible)
to the possessor in good faith. See below, § 18.1.
13.4.
Treasures
A final form of original acquisition to be mentioned here is discovery of a
treasure (in Dutch: schatvinding). This constitutes a special form of finding.
A treasure is, according to art. 5:13 § 2 BW:
a thing of value that has remained hidden for such a long time that, as consequence, the owner can no longer be located.
In this definition we recognize the ancient vetus depositio requirement. The
thing in which the treasure was hidden may be both movable (e.g. behind
276
277
This refers to natural fruits only, defined in art. 3:9 § 1 BW as things that, according
to common opinion, are considered to be fruits of other things. Next to this, there is also
the category of civil fruits, but these are not things but rights (to be exact: rights that,
according to common opinion, are considered to be fruits of property; art. 3:9 § 2 BW),
and therefore not susceptible to ownership.
There are also leges specialis for instalment buying and for lease: see Snijders / RankBerenschot, Goederenrecht, no. 292.
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the double bottom of a cupboard) and immovable (the proverbial treasure
buried in land).
Ownership of the treasure goes to the discoverer, but he has to share it
with the owner of the thing in which it is found; art. 5:13 § 1 BW:
A treasure belongs, in equal shares, to the person discovering it and to the
owner of the immovable or movable thing in which it is found.
Another difference with regular finding is that the acquisition takes place
immediately, whereas the finder has to wait for one year after declaring
and communicating the discovery, pursuant to art. 5:5-6 BW. This is not
surprising, as the owner (if any) can no longer be located and therefore it is
improbable that the owner will come forward to claim the treasure.
Nevertheless, the discoverer of the treasure is obliged to declare his
discovery according to art. 5:5 § 1 sub a BW; this is required to safeguard
possible interests of others: it may be unclear whether the thing qualifies
as a treasure, where the thing was discovered (i.e. within a movable or
immovable of the discoverer himself or of another), or who the discoverer
was. If no declaration has been made, or if it is uncertain to whom the thing
belongs, the Municipality may demand, as is the case for found objects (see
art. 5:5 § 1 sub c BW and above, § 13.1),
that the thing be deposited with it until such time as it has been determined
who the person entitled to the thing is.
Thus is provided in art. 5:13 § 3 BW.278
Separate provisions on the ownership of archaeological findings can
be found in the Monumentenwet 1988 (Monuments and Historic Buildings
Act 1988). As its name indicates, part of this Act is dedicated to historic
buildings, but another part to movable monuments, defined in art. 1-1 sub
1 Monumentenwet as things, manufactured at least 50 years ago and of
general interest due to their beauty, their importance for science, or their
cultural and historic value. A thing like that may also be a treasure, but it
is not per se.
The provisions on movable monuments have been altered recently,279
in order to implement the European Convention on the Protection of the
278
279
Parl.Gesch. Boek 5 (Inv. 3, 5 en 6) (Deventer 1990), p. 1020, and H.A.G. Fikkers,
Wie een leeuw op straat vindt, moet deze niet thuis kunnen houden, in: Tot persistit!
H.J. Snijders-bundel (Gouda Quint: Arnhem 1992), p. 133-146, at 146.
Wet op de archeologische monumentenzorg (Act on the Preservation of Archeological
Monuments) of 21 December 2006, Staatsblad 2007, 42. Entry into force was on 1
September 2007; see Staatsblad 293. See on this Act in detail A.F. Salomons, Nieuwe
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Archaeological Heritage (revised), better known as the Treaty of Valletta
1992 (Malta).280 A new Chapter V, entitled Protection of Archaeological Monuments, was inserted in the Monumentenwet, mostly related to
issues of public law (on Spatial Planning etc.), but several provisions deal
with property law. Art. 50 Monumentenwet provides that movable monuments, discovered in the course of an excavation, of which no-one can
prove to be the owner, are within the ownership of the Province in which
they were discovered or of the Municipality (provided that Municipality
has a archaeological depot). With regard to finds outside the territory of
any Municipality, the State acquires ownership (this relates especially to
wrecked ships).
This implies that the person who makes the discovery in the course of
an excavation does not acquire ownership (in the case of a regular finding, he acquires full ownership after one year; in case of the discovery of a
treasure, he acquires joint ownership immediately). However, if the same
thing is discovered by accident (not in the course of an excavation), the
provisions of the Monumentenwet do not apply, whereas those of the code
do, so in that case it has to be decided whether we are dealing with finding, with occupation, or with the discovery of a treasure.281 Whichever is
the case, ownership can also be acquired via the provisions on acquisitive
prescription (art. 3:99 and 3:105 BW, see above).
If the discoverer of the movable monument in the course of an excavation does not receive anything, the position of the landowner in whose
land the thing was excavated is no more rosy; the enactment of the Act on
the Preservation of Archaeological Monuments has been accompanied by
the abolishment of art. 43 lid 3 Monumentenwet, which provided that this
person was entitled to receive from the owner of the movable monument a
compensation amounting to half of the value of that monument.
This resembled the right of the owner of the thing in which a treasure
is found to half of the ownership of that treasure; in this case, however, the
entire ownership of the movable monument was attributed to the authorities while the landowner merely had a pecuniary claim. The compensation
had to be paid by the owner of the excavated thing. Now his compensation
is abolished too, for several reasons: the compensation is potentially a heavy
280
281
regels omtrent de eigendom van roerende monumenten ingevolge de Wet op de
Archeologische Monumentenzorg. Over archeologische bodemvondsten, schatvinding, toe-eigening, verkrijgende verjaring en de positie van de grondeigenaar, Weekblad voor Privaatrecht, notariaat en registratie 6718 (2007), p. 613-620.
Convention of 16 January 1992, European Treaties Series, no 143.
The person who accidentally (not in the course of an excavation) discovers a thing
he knows, or reasonably has to presume, to be a monument, is obliged to report that
thing to the Minister as soon as possible (art. 53 § 1 Monumentenwet (new)).
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burden on the authorities, especially Provinces and Municipalities; it is not
easy to determine the value of objects for which there is no genuine market;
and archaeological heritage ‘belongs to us all’.282
With regard to that last argument it may be important to repeat that,
despite that common heritage, archaeological objects and other movable
monuments are susceptible to private ownership and therefore, even if
ownership was acquired by a public entity like a Municipality at the time
of the excavation, also susceptible to acquisitive prescription, even for the
possessor not in good faith (art. 3:105 BW).
The provisions on finding, discovery of treasures, occupation and discovery of movable monuments are summarized in the following table.
Object
Law
Ownership
Compensation?
Declaration or
communication?
Movable
monument
artt. 50 ff.
Monumentenwet
At excavation:
Municipality, Province or
State. Accidental discoveries:
BW-provisions
No compensation for landowner
Declaration to
Minister
Vacant
thing
art. 5:5 ff.
BW
Finder acquires
ownership after
1 year, unless
owner reports in
time
Reasonable
reward finder if
owner reports in
time
Declaration at
Municipality,
communication
art. 5:5 § 1
Treasure
art. 5:13
BW
Discoverer
and owner of
thing in which
treasure is found
joint-owners
n.a.
Declaration at
Municipality
Res nullius
art. 5:4 BW
Immediate
acquisition of
ownership by
occupation of
possession
n.a.
n.a. (unless
thing may
also be movable
monument)
282
See for an evaluation of these arguments A.F. Salomons, Nieuwe regels omtrent de
eigendom van roerende monumenten ingevolge de Wet op de Archeologische Monumentenzorg, § 6.
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14.
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Reservation of title
A reservation of title (in Dutch: eigendomsvoorbehoud) is a stipulation in
the title of transfer of a movable thing to the effect that ownership of that
thing, despite delivery thereof, is reserved by the transferor, until performance by the acquirer.283 When such a stipulation is included in a contract,
the transferor is presumed to obligate himself to the transfer of the thing
to the acquirer under a suspensive condition of performance; art. 3:92
BW.284
The delivery of a movable thing, which is unregistered property and
which is under the control of the alienator in the performance of an obligation to transfer under suspensive condition, is accomplished by giving
the acquirer control over the thing; art. 3:91 BW. The proprietary consequence of a transfer under such a condition is found in art. 3:84 § 4: Where
delivery is made in the performance of a conditional obligation, the right
so acquired is subject to the same condition as the obligation (see above,
§ 5.3.2 sub C and § 8.3.2). This implies that the transition of ownership is
postponed until the fulfilment of the condition.
14.1.
Ownership or security right?
As long as the performance by the acquirer remains unfulfilled, ownership remains with the transferor. This retained ownership is susceptible to
transfer to another person (see HR 28-4-1989, NJ 1990, 252 (Puinbreekinstallatie)).
That the retained right really is ownership, and not merely a security
right like a pledge, is also shown by the fact that it is not a dependent right
(see art. 3:7 BW) nor an accessory right (see art. 6:142-144 BW),285 and
by the fact that there are no formal requirements like a written document
or registration to make the title reservation effective in relation to third
parties. In the case of non-performance on the part of the buyer, the seller
is not obliged to levy execution and take recourse, as a pledge-holder or
a mortgagee would be: the prohibition on appropriation (art. 3:235 BW)
applies to a pledge or hypothec, but not to reservation of title.
283
284
285
See E.B. Rank-Berenschot, note 1 ad art. 3:92 BW in: J.H. Nieuwenhuis, C.J.J.M.
Stolker and W.L. Valk (eds.), Burgerlĳk Wetboek: de tekst van de boeken 1, 2, 3, 4, 5,
6, 7 en 8 van het BW voorzien van commentaar (7th ed.; Kluwer: Deventer 2007).
Art. 3:92 BW entails no more than a legal presumption: other constructions to the
effect of a reservation of title may also be valid.
Parl.Gesch. Boek 3, p. 1241-1242.
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On the other hand, the reservation of title is regarded and treated as a
right that predominantly serves as a security right by the treasury. When
the tax authorities exercise their right of seizure (in Dutch: fiscal bodemrecht), they spare the property rights of third parties, provided that these
are considered “real property” rights (in Dutch: reële eigendom). Things
which have been given to the taxpayer on loan, in custody or in operational lease are considered real property of the lender, the depositor and
the lessor respectively, but this does not apply in the case of reservation
of title, instalment buying or financial lease. In other words, the seller
would have to tolerate that the treasury seizes and levies execution on
the goods that were transferred under title reservation. In this, a security
right feature manifests itself, and therefore one has to conclude that the
title reservation has a hybrid nature: it is both ownership and a security
right.286
14.2.
For which claims?
Pursuant to art. 3:92 § 2 BW, a reservation of title may only be validly
stipulated with respect to:
– claims concerning the counter-performance for things delivered or to be
delivered by the alienator to the acquirer pursuant to a contract;
– claims for work performed or to be performed pursuant to such a contract for the benefit of the acquirer;
– claims for failure to perform such contracts.
To the extent that a condition is void upon this ground, it is held to be
unwritten. This implies that the contract in itself remains valid, and only
the stipulation is disregarded.
14.3.
The transferor’s and acquirer’s right to dispose
If the transferor who stipulated a reservation of title lacked the right to
dispose of the thing, the acquirer is in need of the protection that art. 3:86
BW awards to the bona fide acquirer a non domino (see above, Section 11).
In order to be entitled to that protection, he has to be in good faith at the
moment of delivery, i.e. the moment he was given control over the thing
(BW art. 3:91). It is not required that his good faith continues until the
fulfilment of the suspensive condition.287
286
287
Snijders / Rank-Berenschot, Goederenrecht, no. 498.
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, p. 680.
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If the acquirer transfers the thing to a third person before the condition
is fulfilled (i.e. before his performance for the first transferor, usually payment of the purchase price), he is disposing of the property of the transferor, or at least trying to do so: whether the second transfer is valid or not
depends on the answer to the question whether he had the right to dispose
of the property. This would be the case if the first transferor had explicitly
conferred upon him this right contractually (geclausuleerd eigendomsvoorbehoud). Another possibility is that it can be deduced from the contract
between the first transferor and the acquirer that the latter was entitled to
dispose of the detained property; nevertheless it is not sufficient that the
property was destined to be resold.288
If neither is the case, this acquirer, too, needs the protection of the
bona fide acquirer a non domino. The mere fact that he might have realised
that the thing was ‘encumbered’ with a reservation of title is insufficient
to consider him an acquirer in bad faith: as long a he had reason to believe
that the transferor had the right to transfer the thing, regardless of any
reservation of title, he will count as an acquirer in good faith. This will
for example be the case when a normal business transaction is concluded
and the acquirer had no reason to expect the exercise of the reservation
of title.
A similar rule applies when a movable thing is reclaimed by the seller
of a movable thing under his right of recovery (in Dutch: reclamerecht) and
the thing has already been resold: the third acquirer is protected by art. 7:42
BW, provided he acquired the thing for value and he could not reasonably
expect that the seller would exercise his right of revindication. The solution is also in accordance with established case law.289 See above, § 5.7.
14.4.
Extended reservation of title
As we have seen, art. 3:92 § 2 BW enables the stipulation of a reservation of
title for certain claims other than the counter-prestation for the transferred
288
289
This was decided in HR 14-2-1992, NJ 1993, 623 (Love-Love) concerning the sale
of the hull of a ship that was transferred under reservation of title by a shipbuilder to
another shipbuilder, who was to finish the ship and market it. The mere fact that the
ship was destined to be resold to a customer did not imply that the second shipbuilder
was entitled to dispose of it before completing his performance owed to the first
shipbuilder.
See HR 6-1-1961, NJ 1962, 19 (Seneca / Forum), HR 12-6-1970, NJ 1971, 203 (Philippens / Omsa) and HR 29-6-1979, NJ 1980, 133 (Hoogovens / Matex): mere knowledge
of the existence of a reservation of title does not imply the absence of good faith.
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thing itself; this implies that a horizontal extension of the reservation of title
is allowed (at least for the claims mentioned in § 2).290
Vertical extension of the reservation of title, however, is not possible;
there is no room to stipulate that the reservation of title also applies to
things other than the things that were delivered. This implies that the
reservation of title ends when these things are used in a production process
and cease to exist due to accession, confusion or specification: it is common opinion that the mandatory legal provisions on original acquisition
(art. 5:14-16 BW, see Section 10) cannot be thwarted by way of contract.291
An alternative could be the stipulation of a silent pledge in advance with
regard to the things that the acquirer will produce (but it may well be that
the acquirer had at an earlier stage pledged all his present and future goods
in advance to his bank, and in that case the pledge of the seller is subordinated to that of the bank).
14.5.
Extinction of title reservation
The most important ways in which the reserved ownership would end (i.e.
pass to the acquirer), are the following:292
– The acquirer performs his obligation, which implies the fulfilment of
the suspensive condition and ipso facto transition of ownership to the
acquirer. Pursuant to art. 3:92 § 3 BW, the condition is deemed to be
fulfilled when the alienator receives satisfaction otherwise than by performance of the counter-prestation, when the acquirer is relieved of
his obligation to perform pursuant to art. 6:60 BW,293 and when the
prescription of the right of action in respect to the counter-prestation
has been completed. In the absence of a stipulation to the contrary,
the same applies in the event of the abandonment of the right to the
counter-prestation.
– The acquirer transfers the thing to a third party (assuming he had the
right to dispose thereof, see above).
– The acquirer delivers the thing to a third party despite the fact that
he lacks the right to dispose thereof, but the third party successfully
290
291
292
293
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, p. 683-694 and Snijders / RankBerenschot, Goederenrecht, no. 500.
See Snijders / Rank-Berenschot, Goederenrecht, no. 500 and Pitlo / Reehuis, Heisterkamp, Goederenrecht, p. 687-688.
Art. 6:60 BW: Where the creditor is in default, the judge may discharge the debtor,
upon his demand, from his obligation, with or without conditions to be determined
by the judge.
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invokes the protection of the bona fide acquirer a non domino (art. 3:86
BW).
– The thing ceases to exist due to accession, confusion or specification
and the applicable rule does not award ownership or co-ownership to
the transferor (see art. 5:14-16 BW and above, Section 10).
– The thing is lost etc. In that case, no substitution of property takes
place, even though such a substitution does take place in the case of
a pledge or hypothec; see art. 3:229 BW: [t]he right of pledge or hypothec
entails an ipso facto right of pledge upon all claims for compensation that
take the place of the pledged or hypothecated property, including claims resulting from its depreciation. This applies to insurance payments, claims
by reason of overdistribution, unlawful acts, decrease in value of the
thing, expropriation etc. The claim with respect to the payment of the
purchase price does not constitute a claim for compensation as meant
in art. 3:229 BW.294
294
See W.G. Huijgen, note 1 ad art. 3:229 BW in: J.H. Nieuwenhuis, C.J.J.M. Stolker
and W.L. Valk (eds.), Burgerlĳk Wetboek: de tekst van de boeken 1, 2, 3, 4, 5, 6, 7 en
8 van het BW voorzien van commentaar (7th ed.; Kluwer: Deventer 2007).
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Part IV:
Varia
15.
Unspecified property
The principle of individualization (already mentioned above, in § 5.6) entails that property that has not been individualized is not susceptible to
possession, detention or ownership.295 This implies that one cannot own a
part (“100 litres” or “one quarter”) of a undivided whole (oil tank, shipload
etc.), notwithstanding the fact that it is possible to have a personal right
to the delivery of such a part. Generally speaking, it is not possible to own
things that are only specified by kind or quantity: only after they are individualized do they become susceptible to ownership.
The same principle is manifested in the rule of art. 3:84 § 2 BW, that
in the title the property to be transferred must be described in a sufficiently
precise manner.
The Hoge Raad has interpreted this rule so (see above, § 5.6), that the
individualization must have taken place at the latest at the moment of
delivery (i.e. the conclusion of the real agreement), and not, as the text of
the provision suggests, at the time of the coming into existence of the title
of transfer (usually the conclusion of the obligatory agreement).296 In other
words: when buying bread in a bakery, at the time of the sale the description
“one whole loaf of wheat bread” is sufficient, but at the time of the delivery
it must be established which of the loaves of whole wheat bread present in
the store is going to be transferred.
With regard to movables,297 the law of property recognizes no provisions
that derogate from the system described above. If, for example, a thing that
belongs to A is placed in the midst of other, similar things belonging to
B, A would not lose his right of ownership on his thing, but, on the other
295
296
297
See Snijders / Rank-Berenschot, Goederenrecht, nos. 80, 157 and 161.
See HR 14-10-1994, NJ 1995, 447 (Spaarbank Rivierenland).
The last decade has seen a great deal of case law on the question which role the principle of indivudialization plays in the assignment of claims: to what extent is a detailed
description of the claims required in the deed of assignment (art. 3:94 BW). The Hoge
Raad decided in HR 14-10-1994, NJ 1994, 447 (Spaarbank Rivierenland) that it is not
necessary to enumerate details like the name of the debtor, the amount of the claim,
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16. Abandonment
135
hand, he would not be entitled to revindicate it because he is unable to
prove which thing is his. This problem of individualisation, therefore, does
not belong to the field of property law, but to that of the law of evidence;
see above, § 10.3, on ‘improper confusion’.
The above-mentioned does not preclude partial termination of a sales
contract with proportional reduction of the delivery obligation of the seller.
If, for example, A were to sell four cows to B for € 4.000,00 and B would pay
only € 2.000,00, half the purchase price agreed upon, A would be entitled
to partially terminate the sale. Such a partial termination results in a qualitative or quantitative proportional reduction of the reciprocal obligations
(see art. 6:265 j° 270 BW). In this case, the partial termination would have
the effect that A would henceforward be obliged to deliver two instead of
four cows to B.
All this is, however, outside the realm of property law, as termination of
a contract does not have any proprietary effect: it merely obliges the buyer
to retro-deliver the goods already delivered by the seller (art. 6:271 BW;
see above, § 5.3.1, § 5.3.2 sub C, § 8.3.3 and § 8.4). Until this obligation
is fulfilled, the buyer is the owner of the goods concerned. Therefore, the
issue of specification is not involved here.
16.
Abandonment
It follows from art. 5:18 BW that abandonment of a movable thing is possible:
invoice number, client number etc. It suffices that the deed contains such details that,
if necessary afterwards and with the help of the deed it can be determined which claims
were meant. The deed, may, for example, refer to a computer list on which details with
regard to the assigned claims are specified. Registration of this computer list is not
required. This was confirmed in HR 16-6-1995, NJ 1996, 508 (Ontvanger/Rabobank
IJmuiden), HR 20-6-1997, NJ 1998, 362 (Wagemakers q.q./Rabobank Roosendaal), and
in HR 19-9-1997, NJ 1998, 689 (Verhagen q.q./IBN II). In HR 20-9-2002, NJ 2004, 182
(Mulder-Rabobank), the Hoge Raad decided that the use of a so-called catch-all clause
(“all claims belonging to the pledgor”) is also sufficient, in which case a reference to
a computer list is superfluous; henceforward, this has become standard practice. The
Hoge Raad obviously deems these decisions not to be in conflict with the requirement
that “on the title the property to be transferred must be described in a sufficiently
precise manner” under art. 3:84 § 2 BW, even though a description of the claims may
take place after the assignment, i.e. at the moment the computer list is drawn up. See
on this subject e.g. Pitlo/Reehuis, Heisterkamp, Goederenrecht, no. 261.
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The owner who abandons possession of a movable thing, with the intent of
divesting himself of ownership, loses ownership of it.
This implies that ridding oneself of possession will only lead to loss of ownership if that is the purpose of the act. The owner who hides an object (e.g.
a treasure), or loses it, does not lose possession and ownership. The same
applies even when an object is left behind unattended by the owner, unless
it is ascertained that the owner had the intention of divesting himself of
his ownership.298
By abandoning possession with the intent of divesting himself of his
ownership, the owner of the thing transforms that thing into a res nullius,
susceptible to acquisition of ownership through occupation of possession
(see art. 5:4 BW, discussed above, § 2.2.3 sub A and especially § 13.2).
Abandonment and occupation are exact opposites.
In contrast to movable things, ownership of immovable things cannot
be given up. This was decided by the Hoge Raad in its arrest of 11 March
1966299 and was adopted in the new Burgerlijk Wetboek of 1992 (by means of
leaving out an equivalent of art. 5:18 BW for immovables). To be sure: it is
possible to give up limited rights in immovables, as follows from art. 3:81 § 2
sub c BW and from art. 3:98 BW, but the same does not apply to the right
of ownership thereof. The rationale behind this is that immovable things
that have no other owner belong to the State (art. 5:24 BW): if giving up
ownership of immovable things were possible, one could force those things
upon the State, including all charges and obligations attached thereto,300
and this was considered undesirable.
17.
Community property
17.1.
Sedes materiae
Title 3.7 BW, called “community” (in Dutch: gemeenschap), regulates the
proprietary relationship between the partners (in Dutch: deelgenoten301) in
298
299
300
301
See Asser-Van Dam-Mijnssen-Van Velten 3-II, Goederenrecht. Zakelijke rechten, no.
110. See also A.A.J. Smelt, Goederen met negatieve waarde in het Nederlandse vermogensrecht (Thesis Utrecht; 2006), in particular Chapter 3 (but focused on property
with a negative value).
NJ 1966, 330. See Asser-Van Dam-Mijnssen-Van Velten 3-II, Goederenrecht. Zakelijke rechten, no. 111.
Ibidem.
The notion of co-ownership is reserved to the community with regard to things, i.e.
corporeal objects susceptible to human control.
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a community. The obligatory relationship between the partners is provided for
elsewhere in the Burgerlijk Wetboek and can be left aside here.
Title 3.7 of the third Book of the Burgerlijk Wetboek is divided into three
sections. The first section (art. 3:166-188 BW) provides general provisions,
the second (art. 3: 189-194 BW) provides for some special communities,
and the third (art. 3:195-200 BW) regulates void and annullable partitions.
An important limitation on the scope of Title 3.7 is found in art. 3:189
§ 1 BW:
The provisions of this title do not apply to a marital community, a partnership, a
commercial partnership or a shipping partnership, as long as they have not been
dissolved; they do not apply either to the community of a building divided into
apartment rights, provided the division has not been terminated.
Nevertheless, pursuant to the second paragraph of art. 3:189 BW, the provisions of section 3.7.2 (entitled “Some Special Communities”), as well as
the provisions of the first section, to the extent that this section does not
deviate therefrom, apply to the community of a succession, to a dissolved
marital community, partnership, commercial partnership or shipping partnership, and to the community of a building the division of which into
apartment rights has been terminated.
From the above it may be deduced that Title 3.7 BW applies primarily
to communities that are susceptible to division (commonly referred to as
“simple communities”, in Dutch: eenvoudige gemeenschappen) and not for
“active” communities, which are meant to continue (the “special communities“, bijzondere gemeenschappen, of section 3.7.2 BW).302
17.2.
Communities; classification
A classification of the various communities can be accomplished by several
criteria:303
– subject (e.g. marriage or business);
– applicable law: this refers to the following distinction (art. 3:189 BW):
302
303
See Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 411 and Snijders / Rank-Berenschot, Goederenrecht, nos. 213-214.
This survey is primarily derived from Snijders / Rank-Berenschot, Goederenrecht,
nos. 214-215 and Jac. Hijma and M.M. Olthof, Compendium van het Nederlands
vermogensrecht (8th ed.; Kluwer: Deventer 2002), no. 197.
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‘special’ communities;
‘simple’ communities, which occur in two forms: community of one item of
property (e.g. a common wall); community comprising several items of property.304
– origin:
Act of formation (e.g. contract, as in the case of a partnership contract, in
Dutch: maatschapscontract);
Last will and testament (see art. 4:921 BW);
The law itself (e.g. in the case of accession or specification, if there are no
principal thing and component parts, the owners of the original things are the
co-owners of the new thing; art. 3:15-16 BW).
As has been said above, the provisions of section 3.7.1 apply in principle to
all of these communities, but an exception is made for those communities
that are meant to continue: these are governed by their own rules (e.g. for
the not yet dissolved marital community articles 1:93 ff. BW).
17.3.
Community; the right to dispose305
Only the partners acting together are entitled to dispose of a good of the community. There is an exception to this rule, if one of the partners is entitled
to dispose of the property:
– because he has the authorization of the court to do so (art. 3:174 BW);
– because the rules regulating their relationship entitle him to perform
the management of the property, and the transfer of the common good
could be regarded as such (art. 3:170 § 2 BW);
– because the transfer constitutes an act for the purpose of ordinary maintenance or preservation of common property or, generally, as an act that
cannot be postponed; these acts may be performed by any one of the
partners, if necessary independently of the others (art. 3:170 § 1 BW).
With regard to the right to dispose of shares, one has to distinguish between:
304
305
The occurance of the latter kind of community is the result either of a connection
among the items of property, e.g. a flock of sheep, or of a legal relationship among
the partners; otherwise, there is a separate community with regard to each individual
piece of property; see Hijma / Olthof, Compendium, no. 197.
See especially Hijma / Olthof, Compendium, no. 199 and Hartkamp, Compendium,
nos. 145-146.
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– The right to dispose of an undivided share in a separate item of property of
the community.306 A further distinction has to be made with regard to:
‘simple community’; each of the partners is entitled to dispose, unless the juridical relationship between the partners produces a different result (art. 3:175 § 1
BW);307
‘special community’: the partner may not separately dispose of his share in property belonging to the community (art. 3:190 § 1 and 2 BW).308
– The right to dispose of an undivided share in the totality of the community.
Unless the juridical relationship between the partners produces a different
result, each of the partners is separately entitled. With regard to the ‘simple’
community, this can be deduced from art. 3:175 § 1 BW,309 with regard to
the ‘special’ community, see art. 3:191 § 1 BW.310
306
307
308
309
310
Delivery of a share in property is made analogously to delivery of that property and
has analogous effects; art. 3:96 BW. Therefore, the delivery of a share in a movable
is performed by the giving of possession of the share (art. 3:96 j° 3:90 BW). When
the transferor lacks the right to dispose of the share, the acquirer has recourse to
the protection of the bone fide acquirer a non domino of art. 3:86 BW (because the
delivery of the share in the property has “analogous effects” of the delivery of that
property): see on the complications of the transfer of co-ownership of a movable
through the giving of co-possession, HR 28-4-1989, NJ 1990, 252 (Puinbreekinstallatie). See also Pitlo / Reehuis, Heisterkamp, Goederenrecht, no. 295.
§ 3 adds: Creditors may seize and execute against the share of a partner in common property. After seizure and execution against a share, limitations on the power to dispose of the
share cannot be invoked among the acquirer of such a share and the remaining partners.
And his creditors may not seize and execute against such a share, without the consent of the other partners. Nevertheless, a partner can establish a right of pledge
or of hypothec upon such a share, even without the consent of the other partners.
Unless the other partners consent, the pledgee and the hypothecary creditor may
not proceed to the sale of the property as long as it belongs to the community.
The difference between the simple and the special community in this respect is
easily explained: the latter form of community is meant for continued existence,
whereas the simple community is (already) susceptible to division; see Snijders /
Rank-Berenschot, Goederenrecht p. 175.
Each partner is entitled to dispose of his share in separate goods of the simple community, which may consist of several goods: this implies that he may also dispose of
his share in the entire community. See e.g. Hartkamp, Compendium, no. 146.
This provision adds that the creditors of a partner can seize and execute against such
a share.
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18.
Consequences of restitution to the owner
18.1.
Entitlement to benefits (‘fruits’) of the movable
The basic distinction made in this respect in Dutch property law is between
possession in good faith and possession not in good faith (the Burgerlijk
Wetboek does not use the notion “possession in bad faith”). Cf. art. 3:120
BW for the possessor in good faith:311
1. Separated natural fruits and civil fruits that have become exigible belong to
the possessor in good faith.
2. The title-holder of property who claims it from a possessor in good faith or
has recovered it from him is obliged to reimburse him for the costs expended
on the property, as well as for the damages for which, by virtue of the rules of
Title 3 of Book 6, the possessor might be liable toward third persons by reason
of his possession; this obligation ceases to the extent that the possessor has
been indemnified by the fruits of the property and the other benefits which
he has drawn from it. The judge may reduce the reimbursement due if full
reimbursement would result in an inequitable advantage of the possessor over
the title-holder.
3. As long as a possessor in good faith has not received the reimbursement due
to him, he has the right to suspend restitution of the property.
4. The provisions of this article also apply to a person who believes and could
believe that he has lawfully acquired possession, although he knows that the
acts necessary for delivery of the right have not taken place.
For the possessor not in good faith, art. 3:121 BW provides the following:
1. Without prejudice to his liability by virtue of the rules of Title 3 of Book 6312
for the damage suffered by the title-holder and in addition to the restitution
of the property, a possessor who is not in good faith is obliged to restore to the
title-holder the separated natural fruits and the civil fruits that have become
exigible.
2. He may claim against the title-holder reimbursement of the costs that he has
expended on the property or that he has made to produce the fruits only to the
extent that his claim can be based on the rules regarding unjust enrichment.
3. The provisions of this article also apply to the possessor in good faith from
the moment the title-holder invokes his right against him.
311
312
See above, § 2.1.4, for the meaning and function of “(possession in) good faith”
(and for the absence of the notion “possession in bad faith”). See for the notion of
(natural and civil) fruits above, § 13.3.
This title deals with unlawful acts.
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Comparing these two provisions shows that the possessor in good faith is
entitled to all separated natural fruits and civil fruits that have become
exigible, whereas the possessor not in good faith has to restore these to the
title-holder.
The value of the fruits is taken into account when determining the
amount to be reimbursed by the titleholder to the possessor in good faith
for the costs expended on the property and for the damages for which the
possessor is liable towards third persons by reason of his possession. As there
is no similar claim for reimbursement on behalf of the possessor not in good
faith, other than a claim based upon unjustified enrichment, and he is not
entitled to fruits anyway, a similar provision is lacking for him.
Only the possessor in good faith has the right to suspend restitution of
the property (in other words: exercise the right of retention of art. 3:290
BW) until being reimbursed by the title-holder (this means that even if the
possessor not in good faith is entitled to damages for unjustified enrichment
of the title-holder, he cannot retain the property to safeguard this claim).
After the moment the title-holder invokes his right against the possessor in good faith, the latter is no longer protected by the provisions of
art. 3:120 BW; henceforward, the provisions of art. 3:121 apply to him, as if
he were a possessor not in good faith (which, technically, he is not, due to
the rule mala fides superveniens non nocet, codified in art. 3:118 § 2 BW).
Pursuant to art. 6:275 BW, the rules of art. 3:120 and 3:121 BW, regarding the restitution of fruits and the compensation for costs and damage,
apply mutatis mutandis in the case of the setting aside of a synallagmatic
contract to the obligation to undo the prestations they have already received. This provision was necessary because the creditor of that obligation
is not the owner of the object (as the setting aside of a contract does not
have proprietary effect: the acquirer is obliged to transfer ownership of the
object back to the original transferor).
18.2.
Loss and deterioration of a movable
Is the possessor liable vis-à-vis the owner for the loss or deterioration of
the movable? The answer to this question does not only depend on the
cause of the loss or deterioration, but also on the good or bad faith of the
possessor. In any case, the legal basis for liability of the possessor towards
the owner is tort law.
Pursuant to art. 6:162 § 2 BW, the violation of a (subjective) right is
deemed to be unlawful (except where there is a ground of justification).
Committing such an unlawful act toward another leads to an obligation to
repair the damage that the other person suffers as a consequence thereof,
provided the act can be imputed to the person who commits it (art. 6:162
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§ 1 BW). It is debated whether that person can be held liable for the violation of a right, e.g. damaging the property of another, if he did not act
negligently (careless, in Dutch: onzorgvuldig): does the act of damaging
ipso facto lead to liability or should this be reserved for cases of culpable
behaviour?
In the leading Dutch Handbook on Tort law, the following system with
regard to liability for the violation of the subjective right of another is defended: a distinction must be made between two groups of acts:
– the first group concerns acts to which the titleholder is exclusively entitled and acts that hamper the use of the thing or the exercise of his
right by the titleholder. Examples are the transfer or theft of a thing of
another, the closing off of the premises of another, the use of a trademark without permission, the seizure of a thing, the conducting of a
house search, etc.313
– the second group concerns acts that cause physical damage (property
damage) or injury.
In the context of the first group of acts, the ‘violation’ relates to the unlawfulness of the act itself; in the context of the second, to the consequences
of the act.
The aforementioned Handbook argues that only with regard to the
first group of acts, the ‘violation’ is unlawful even if there were no culpable
behaviour. In other words: an act is unlawful for the violation of a right
if that act itself, irrespective of its consequences, constitutes the violation
of the subjective right (so: theft, seizure etc.). In other cases, the act does
not lead to liability unless it was the result of culpable behavior; property
damage and injury are unlawful only if in violation of a statutory duty or a
rule of unwritten law pertaining to proper social conduct.314
Even though this view is not generally accepted, we will use it here
(which may be justified by the fact that most Dutch authors reject the idea
that each violation of the subjective right of another should ipso facto lead
to liability).315
All this implies that property damage only leads to liability of the
possessor if he is in not in good faith (i.e. if he is not someone who be313
314
315
All examples taken from Asser-Hartkamp 4-III, Verbintenissenrecht; de verbintenis uit
de wet, no. 36.
Ibidem. The view, accepted by Hartkamp, was put forward earlier by C.H. Sieburgh,
Wat is rechtsinbreuk?, Nederlands Juristenblad 4-1997, p. 628-635.
See for a survey of the various views C.A. Streefkerk, De onrechtmatigheid van de
rechtsinbreuk, in: BW-krant Jaarboek 1996 (Gouda Quint: Deventer 1996), p. 6786, and J. Spier et al. (eds.), Verbintenis uit de wet en schadevergoeding. Studiereeks
burgerlijk recht 5 (4th ed.; Kluwer: Deventer 2006), nos. 32-41.
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lieves himself to be the owner and is reasonably justified in that belief, cf.
art. 3:118 § 1 BW): only culpable behaviour is unlawful for this kind of
act,316 and the possessor in good faith does not act culpable towards the
owner as he assumes and is reasonably justified to assume to be the owner
himself. The same must apply to loss of the movable, assuming that the act
of losing the thing belongs to the ‘second group’ (i.e. acts for which the
‘violation’ relates to the unlawfulness of the consequences of the act, in this
case: depriving the owner of any further use of the thing).317
An exception occurs after proceedings for restitution have been initiated or the owner has demanded return of his thing in another way: from
that moment on, the possessor in good faith must take into account that
he may be ordered to relinquish the property. This may be inferred from
art. 3:121 BW, the first paragraph of which warns the possessor not in good
faith about tort lliability for the damage suffered by the owner, and the third
paragraph of which provides that the provisions of the article also apply to
the possessor in good faith from the moment the owner invokes his right
against him: this proves that good faith in itself does not protect against
tort liability. The provisions on the setting aside of synallagmatic contracts
contain another indication of this; art. 6:273 BW provides:
As of the time that a party, who has received a prestation, must reasonably
foresee the possibility that the contract will be set aside, he is obliged to ensure,
as a prudent debtor, that the undoing of the prestation, owed as a result of the
setting aside of the contract, will be possible (…).
This provision does not apply directly to the case in which someone is
asked to return a thing to its owner, due to the fact that setting aside does
not have proprietary effect: in this case, the duty of care rests upon the
owner / possessor who has to take into account the possibility that he may
be obliged to return the received thing to the other party, who until that
return is not yet the owner.
No tort liability exists if the act of the possessor was not unlawful. This
implies that the presence of a ground for justification frees the possessor
from liability. Examples are force majeure, self-defence, the fact that the
possessor was managing the affairs of the owner (art. 6:198 BW) etc.318
316
317
318
Art. 6:162 § 1 BW requires for liability for an unlawful act that the act can be imputed to the person who commits it. See below.
The same conclusion is drawn by Van Schaick, Rechtsgevolgen en functies van bezit en
houderschap, no. 33, with the addition that the possessor in good faith cannot be held
liable on the basis of unjustified enrichtment either, e.g. for the use of the property,
as such a claim would be contrary to the legal system.
See J. Spier et al. (eds.), Verbintenis uit de wet en schadevergoeding, no. 18.
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Furthermore, as was already said, liability requires that the act can be
imputed to the author thereof. Art. 6:162 § 3 BW provides that an unlawful
act can be imputed to its author if it results from his fault or from a cause for
which he is answerable according to law or common opinion. So there are
cases in which the author of the act did not act culpably but is successfully
held liable nevertheless.
18.3.
Improvements and expenses during possession
As we have seen above in § 18.1, the basic distinction is – again – between
possession in good faith and possession not in good faith. For the possessor
in good faith, art. 3:120 § 2 BW provides that he is entitled to reimbursement of the costs expended on the property, as well as for the damages he
himself might be liable for towards third persons by reason of his possession.
This obligation ceases to the extent that the possessor has been indemnified by the fruits of the property and the other benefits that he has drawn
from it. A further reduction is possible if full reimbursement would result
in an inequitable advantage of the possessor over the owner. The possessor
not in good faith, on the other hand, is entitled to reimbursement of his
costs only to the extent that his claim can be based on the rules regarding
unjustified enrichment.
The ‘costs’ to which art. 3:120-121 BW refers are the costs that have
really been made at the expense of the possessor.319 Under the regimen of
the old civil code, a distinction was made between impensae necessariae,
utiles et voluptuosae, i.e. costs for preservation, useful costs and costs for
embellishment: this distinction has not returned in the Burgerlijk Wetboek
of 1992. All costs can be claimed, even if they did not enrich the owner,
but in the case of costs that did not lead to a direct increase of the value of
the thing, the court may mitigate the reimbursement.320
In two cases, a smaller or no reimbursement at all is due, the first by an
act of the owner, the second by an act of the possessor:
1. Whether the possessor is in good faith or not, the owner can free
himself from the reimbursements due by virtue of the articles 3:120 and
121 BW by transferring the property to the possessor, who is obliged to
cooperate; art. 3:122 BW (in other words, the owner has the so-called right
to abandon).321
319
320
321
See HR 7 oktober 1994, NJ 1995, 62.
See Schoordijk, Vermogensrecht in het algemeen naar Boek 3 van het nieuwe B.W.,
p. 390, and Parl.Gesch. Boek 3, p. 450.
Art. 3:122 BW is criticized by Van Schaick, Rechtsgevolgen en functies van bezit en
houderschap, no. 35.
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2. Both the possessor in good faith and the possessor in bad faith have
the so-called ius tollendi. Art. 3:123 BW provides the following:
Where the possessor of a thing has made changes or additions to it, he has the
right to remove them instead of claiming the reimbursement to which he is
entitled by virtue of articles 120 and 121, provided that he restores the thing
to its original condition.
18.4.
Possessor’s right to retain a movable
Only the possessor in good faith is entitled to suspend restitution of the movable as long as he has not received the reimbursement due to him; art. 3:120
§ 3 BW, quoted above in § 18.1. This right to suspend restitution qualifies as
an example of the right of retention, defined in art. 3:290 BW as
the power that a creditor has, in the cases provided for by law, to suspend the
performance of an obligation to surrender a thing to his debtor until payment
of the debt.
The importance thereof is that the provisions on the right of retention
(art. 3:290-295 BW) apply to the possessor in good faith. The most important of these are, applied to the possessor seeking reimbursement for
his costs:
– The possessor can invoke his right of retention against third persons
having acquired a right to the thing after his claim has arisen and the
thing has come under his control (art. 3:291 § 1 BW).
– The possessor can take recourse for his claim against the thing with
preference over all persons against whom the right of retention can be
invoked. (art. 3:292 BW).
– The right of retention is terminated in the event that the thing comes
under the control of the owner, unless the possessor regains it pursuant
to the same juridical relationship (art. 3:294 BW).
– The possessor who loses control of the thing can reclaim it under the
same conditions as an owner (art. 3:295 BW).
It is difficult to answer the question whether the right of retention has the
nature of a ius in rem or of merely an obligatory right. It seems best not
to call it a right at all: it is above all the power (in Dutch: bevoegdheid) to
suspend restitution, and therefore refers primarily to an authority (privilege). This power can be used – in contractual settings – against the other
party, whether the latter has a right in rem in the property or not. But the
power can also be used against others, with whom the retentor is not in
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any contractual relationship. The basic distinction here is whether the
other person has an anterior or a posterior right; see art. 3:291 BW, which
is quoted in full:
1. The creditor can also invoke the right of retention against third persons
having acquired a right to the thing after the creditor’s claim has arisen and the
thing has come under his control.
2. He can also invoke the right of retention against third persons with a prior
right, if his claim results from a contract that the debtor had the power to enter into in respect to the thing, or if the creditor had no reason to doubt such
power.
The restrictions contained in this provision indicate that the right of retention cannot be adequately described as a ius in rem.
Another characteristic of a right of rem is the so-called droit de suite: the
right is ‘attached’ to the thing and ‘follows’ it after the thing has come into
other hands. Again, this does not apply to the right of retention: as soon
as the thing comes under the control of the owner, the right of retention
is lost, even though it can be regained (see above). However, if another
person takes control of the thing (e.g. a thief), the right of retention is not
lost and the thing can be reclaimed by the retentor under the same conditions as an owner (art. 3:295 BW); in this respect, the right of retention
does resemble a right in rem.
Finally, the right of retention has an accessory nature: it fits the description in art. 3:7 BW of a dependent right, as it is related to another right
(the possessor’s right of reimbursement) in such a fashion that it cannot
exist independently thereof. On the other hand, pursuant to art. 3:82 BW,
dependent rights follow the right to which they are connected, and this does
not apply to the right of retention. Neither does the right of retention qualify
as an accessory right (cf. art. 6:142 BW): if the possessor were to assign his
claim, the assignee would not acquire the right of retention.322 In this respect,
too, the sui generis nature of the right of retention manifests itself.
18.5.
Expenses to obtain restitution
The purpose of revindication (art. 5:1 BW) is restitution of the movable
and not payment of damages.323 Therefore, the owner cannot seek reim322
323
See Asser-Van Dam-Mijnssen-Van Velten 3-II, Goederenrecht. Zakelijke rechten, no.
118 and A.R. Bloembergen, Schadevergoeding: algemeen, deel 1. Monografieën Nieuw
BW B-34 (2nd ed. revised by S.D. Lindenbergh; Kluwer: Deventer 2001), no. 3.
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bursement for his expenses on the basis of his right of revindication; he
must institute a separate tort action. As has been said before, such an action cannot be instituted successfully against the possessor in good faith,
or at least until the owner invokes his right against him (cf. art. 3:121 § 3
BW). The consequence of this is that in this case the owner has to bear the
expenses of the restitution himself.
This is not the case if the owner confronts a possessor not in good faith.
Art. 3:121 § 1 BW mentions explicitly that the possessor not in good faith
(as well as the owner in good faith after the moment the owner has invoked
his right against him) may be held liable “for the damage suffered by the
owner”. This may include the damage resulting from the efforts to obtain
restitution of the thing (e.g. the costs made to trace the property, the costs
to make a revindicatory attachment, the costs of the bailiff’s notification
etc.), in accordance with the rules on legal obligations to repair damage;
Section 10, Title 1, Book 6 BW (articles 6:95-110 BW).
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Asser: see under: Van Dam, Hartkamp, Hijma or Mijnssen
Bartels, S.E., De receptie van het titelbegrip bij Hartkamp,
Groningen opmerkingen en mededelingen XIX (2003), p. 47-61
Bartels, S.E., De titel van overdracht in driepartijenverhoudingen
(Thesis; Boom Juridische uitgevers: The Hague 2004), p. 58-59
Beekhoven van den Boezem, F.E.J., Onoverdraagbaarheid van vorderingen
krachtens partĳbeding (Thesis Groningen; 2003)
Bloembergen, A.R., Schadevergoeding: algemeen, deel 1. Monografieën Nieuw BW
B-34 (2nd ed. revised by S.D. Lindenbergh; Kluwer: Deventer 2001)
Bloembergen, A.R., C.C. Van Dam, Jac. Hijma, W.A.M. van Schendel and
W.L. Valk, Rechtshandeling en overeenkomst. Studiereeks burgerlijk recht 3
(5th ed.; Kluwer: Deventer 2007)
Boom, W.H. van and M.H. Wissink, Aspecten van ongerechtvaardigde verrijking.
Preadviezen, uitgebracht voor de Vereniging voor Burgerlijk recht
(Kluwer: Deventer 2002)
Brahn, O.K., Toelevering van voorwerpen onder eigendomsvoorbehoud bij industriële
fabricage volgens huidig en komend recht (Kluwer: Deventer 1984)
Brahn, O.K., Ons allernieuwste 2014, Weekblad voor Privaatrecht, Notariaat en
Registratie 5739 (1985), p. 333-342
Brahn, O.K., and W.H.M. Reehuis, Overdracht. Monografieën Nieuw BW B-6a
(3rd ed.; Kluwer: 1997)
Brakel, A.M., Electronic Bills of Lading, Over een elektronisch equivalent van
het papieren cognossement, Tijdschrift Vervoer & Recht 6 (2000), p. 129-135
Brunner, C.J.H., “Dief wordt eigenaar”, in: E.H. Hondius et al. (red.) Quod Licet
(KLeijn-bundel) (Kluwer: Deventer 1992), p. 45-53
Buchem-Spapens, A.M.J. van and Th.A. Pouw, Faillissement, surseance
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art.
article
BGB
BR
BW
Bürgerliches Gesetzbuch (German civil code)
Bouwrecht
Burgerlijk Wetboek (civil code)
cf.
compare
Dig.
Digestae
e.g.
ed.
eds.
et al.
EU
for example
edition or editor
editors
and others
European Union
ff.
Fw
and the following pages
Faillissementswet (Insolvency Act)
HR
Hoge Raad (Dutch Supreme Court)
i.e.
Ibid.
i.f.
that is to say
Ibidem
in fine
n.a.
NBW
NJ
no(s).
not applicable
Nieuw Burgerlijk Wetboek (new civil code)
Nederlandse Jurisprudentie
number(s)
p.
Parl.Gesch.
page(s)
Parlementaire Geschiedenis
W.
Weekblad van het regt
www.sellier.de
www.sellier.de
in Switzerland
Bénédict Foëx
Sylvain Marchand
www.sellier.de
www.sellier.de
Table of Contents
Part I:
1. Notions of ownership and property existing in Switzerland
1.1. General basics
1.1.1. Characteristics of rights in rem
1.1.2. General principles
1.1.3. Sedes materiae
1.2. Notion of ownership; definition and restrictions
1.3. Other property rights in movables
1.4. Protection of property rights
1.4.1. Actions protecting ownership and
other rights in rem
1.4.2. Further remedies
1.5. Transferability of movables; accessories
2. Possession
2.1. Notion and forms of possession
2.1.1. Notion
2.1.2. Elements
2.1.3. Detention
2.1.4. Forms of possession
2.1.5. “Agent in possession”
2.1.6. Particulars
2.1.7. Role of these distinctions
2.1.8. Intensity of the relationship between a
possessor and the object
2.1.9. Possession of rights
2.3.1. Originary and derivative acquisition
2.3.2. Forms of derivative acquisition
2.4. Possessory actions
2.4.1. Introduction
2.4.2. Time limitations
2.4.3. Summary proceedings
2.4.4. Aim of the actions
2.4.5. Actions based on a “better right” to possession
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167
167
167
168
168
169
169
169
170
171
172
172
172
173
173
174
174
175
175
176
176
177
177
177
179
179
179
180
180
180
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162
2.5.
Self-help
2.5.1. Forms of self-help
2.5.2. Requirements
181
181
181
3. Rights to hold, use or acquire a movable
182
4.2. Definitions
183
184
Part II:
Transfer of ownership from the owner to the transferee
(derivative acquisition)
5. System of transfer
5.1. Basic characteristics; overview
5.1.1. Moment of transfer
5.1.2. Cause of the transfer of ownership and
“real agreement”
5.1.3. Retention of title
5.2. General issues
5.2.1. Identification of goods for the purpose
of passing of risks
of transferring possession
5.2.3. Modalities of identification
5.2.4. Relation between party autonomy and
transfer of possession
5.2.5. Postponing the time of transfer
5.3. Cause of the transfer
5.3.1. Admissible cause
5.3.2. Void contract, avoided contract
5.3.3. Terminated contract in case of non-payment
or defective products
5.3.4. Trusts and similar
5.4. Traditio: delivery and delivery equivalents
5.4.1. Purpose of the delivery requirement
5.4.2. Physical delivery of movables
5.4.3. Delivery of means to take control of movables
5.4.4. Open transfer of possession
5.4.5. Marking the goods
5.4.6. Transfer of documents
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185
186
186
186
186
187
187
188
188
189
189
189
190
191
192
192
192
193
194
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Table of Contents
5.5.
5.6.
5.7.
5.8.
5.9.
163
5.4.7. Carriage of goods by an independent carrier
5.4.8. Brevi manu traditio
5.4.9. Constitutum possessorium
5.4.10. Movables under the control of third parties
Registration
5.5.1. Principle
5.5.2. Ships
5.5.3. Aircrafts
Consensual system
Real agreement
5.7.1. Concept of real agreement
5.7.2. Special rules on the real agreement
5.7.3. Purpose of the concept
Payment
5.8.1. Principle
5.8.2. Discussion and relation to insolvency law
Right to dispose
5.9.1. Persons having the right to dispose of movables
5.9.2. Transferor without the right to dispose
5.9.3. Ratification by owner
195
196
196
197
198
198
198
199
199
199
199
200
200
201
201
201
201
201
202
202
6. Double selling
6.1. Passing of ownership
6.2. Good or bad faith
6.3. Dispute between buyers
6.4. Insolvency of one of the buyers
203
203
203
204
7.1. Real agreement
7.2. Ownership
7.3. Retention of title
7.4. Invalidity
204
204
205
205
8. Transfer or acquisition by means of indirect representation
8.1. Transfer of ownership
8.2. Legal assignment of claims
8.3. Bankruptcy of the intermediary person
206
206
207
9. Insolvency
9.1. General issues; effect of bankruptcy on contracts
9.2. Insolvency of the transferor
9.3. Insolvency of the transferee
9.4. Right of stoppage in transit
207
209
209
210
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164
10. Relation to rules on transfer of risk
10.1. General principles
10.2. Passing of risk in case of transferor’s default in
delivery or transferee’s default in acceptance
211
211
Part III:
“Original” acquisition – no direct transfer of ownership
from an owner to transferee
11. Acquisition by accession, commixture or processing
11.1.1. Notion of accession
11.1.2. Person acquiring ownership through
accession
11.1.3. Role of good faith and bad faith
11.1.4. Movable becoming an integral part
of an immovable
11.2. Commixture, confusion
11.2.1. In general
11.2.2. Goods of the same kind
11.2.3. Role of good faith
11.3. Specification, processing
11.3.1. In general
11.4. Further general aspects
11.4.1. End of co-ownership
11.4.2. Rights of third parties
11.4.3. Role of legal capacity
12. Rules of good faith acquisition
12.1.1. In general
12.1.2. Particulars
12.1.3. Specific rules for certain types of movables
12.2. Good faith acquisition only for value?
12.3. Possession of the transferor
12.3.1. In general
12.3.2. Dogmatic background
12.4. Possession by the acquirer
12.5. Specific requirements concerning the circumstances
of the transfer
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212
212
213
213
213
213
214
214
215
215
215
216
216
216
217
218
218
218
219
220
221
221
221
221
221
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12.5.1. In general
12.5.2. Public auction
12.6. Requirements regarding the way the original
jowner “lost” the movable
12.6.1. Entrustment
12.6.2. Null and void contract
12.7. Good faith
12.7.1. Object and standard of good faith
12.7.2. Time when good faith is required
12.7.3. Burden of proof
12.8. Lost and stolen movables
12.9. Right to buy back
12.10. Good faith acquisition free of encumbrances
12.11. Same rules if the good faith acquirer is a consumer?
222
222
223
223
223
223
223
224
224
224
225
225
226
13. “Acquisitive” prescription of movables
13.1. Functions of acquisitive prescription
13.2. Requirements of acquisitive prescription
13.2.1. Movables concerned
13.2.2. Acquirer’s possession
13.2.3. Title
13.2.5. Prescription periods
13.2.6. Consequences
13.3. Prescription of ownership
226
226
226
226
227
227
228
228
229
230
14. Other forms of originary acquisition
230
Part IV:
Additional questions
15. Which are the rules on reservation of title?
15.1. Requirements
15.2. Effects
15.3. Default of the transferee
15.4. Title reservation and debt collection proceedings
15.5. Extension of the reservation of title
232
232
233
234
234
16. Abandonment and further ways to lose ownership
16.1. Abandonment
16.2. Further ways to lose ownership
235
235
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17. “Co-ownership”
17.1. Forms of co-ownership
17.2. Transfer of co-ownership (stricto sensu)
17.3. Separation and termination
235
236
236
18. Particular issues as to unspecified goods
18.1. Transfer of shares in an identified bulk
18.2. Floating charge
237
238
19. Consequences of restitution of the movable to the owner
19.1. Entitlement to benefits (“fruits”) of the movable
19.1.1. Restitution under Sect. 938-940 SCC
19.1.2. Restitution after the right to use the
movable has ended
19.1.3. Restitution in case the contract is void,
avoided, or terminated
19.2. Loss and deterioration of the movable
19.2.2. Restitution after the right to use the
movable has ended
19.2.3. Restitution in case the contract is void, avoided,
or terminated
19.3. Reimbursement for improvements and expenses
19.3.2. Restitution after the right to use the movable
has ended
19.3.3. Restitution in case the contract is void,
avoided, or terminated
19.4. Possessor’s right to retain the movable
19.4.2. Restitution by a legitimate possessor
19.5. Who bears the expenses of the restitution
of the movable to the owner?
239
239
240
240
241
241
241
242
243
243
244
245
245
245
246
246
246
247
Table of Literature
249
253
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Part I:
1.
Notions of ownership and property existing
in Switzerland
1.1.
General basics
1.1.1. Characteristics of rights in rem
It is generally accepted that under Swiss law, two characteristics distinguish
rights in rem in comparison with obligations. The right in rem provides
its beneficiary a direct control over it (be it a movable, an immovable,
etc.), whereas obligations are directed against the debtor and provide the
creditor at most an indirect control over the thing. Secondly, rights in rem
are “absolute” rights, i.e. they exist and are enforceable erga omnes, while
obligations are deemed to be “relative” rights, in the sense that they exist
only between two persons or among a group of persons.1
1.1.2. General principles
Swiss property law is governed by a numerus clausus of rights in rem.2 The
four main categories are: ownership (individual ownership, co-ownership,
etc.), servitudes (usufruct, building right, etc.), security rights (mortgages,
pledges, etc.) and land charges.
Several other general principles govern the Swiss system of property
law.3 The main ones are:
– the publicity principle, according to which rights in rem must be rendered
public through an appropriate means of publicity (land register for immovables, possession in the case of movables);
– the principle of specialty, which provides that a right in rem can only exist
in a specified object (as opposed, for instance, to a number of objects or
to an object that does not exist yet);
1
2
3
See for instance Steinauer, no. 12 et seq.; Schmid / Hürlimann-Kaup, no. 15 et seq.
See for instance Steinauer, no. 120 et seq.; Schmid / Hürlimann-Kaup, no. 71 et
seq.
See Steinauer, no. 124 et seq.; Meier-Hayoz, Systematischer Teil, no. 57 et seq.
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– the principle requiring an underlying causa, according to which the transfer of a right in rem or the creation of such a right depends on the valid-
ity of the contract (sale contract, pledge agreement, etc.) or other act
on which it is based;
– the priority (first in time) principle, which provides that, in case more
than one right in rem (other than property) exist simultaneously in the
same object, the right created earlier has priority over the ones whose
existence is more recent;
– the principle of accession, according to which the parts of an object share
the legal status of such object as long as they are united to it.
1.1.3. Sedes materiae
The rules on property law are located in the Swiss civil code (SCC),4 which
was adopted in 1907 but entered into force on January 1, 1912. These rules
form the fourth part of the SCC.
These Sections 641-977 SCC are supplemented by various (Federal
and cantonal5) legislation, such as a Federal law on rural land,6 a Federal
law on the acquisition of immovable property by persons abroad,7 a Federal Ordinance on the land register,8 a Federal law on the aircraft register
(LAR),9 etc.
1.2.
Notion of ownership; definition and restrictions
Ownership is the most extensive right in rem under Swiss law. It provides
its beneficiary an exclusive and in principle unlimited dominion over its
object, and comprises all advantages, interests and benefits that can be
derived from it.10
This being said, ownership is subject to numerous legal restrictions (especially in the field of immovable property), resulting from federal public
4
5
6
7
8
9
10
Swiss civil code, of December 10, 1907.
Switzerland is composed of 26 Cantons who retain important legislative powers,
mainly in the field of public law.
Federal law on rural land, of October 4th, 1991; SCFL no. 211.412.11.
Federal law on the acquisition of immovable property by persons abroad, of December 16, 1983; SCFL no. 211.412.41.
Federal ordinance on the land register, of February 22, 1910; SCFL no. 211.432.1.
Federal law on the aircrafts register (LAR), of October 7, 1959.
Steinauer, no. 1002 et seq.; Meier-Hayoz, Systematischer Teil, no. 306.
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law, federal private law, cantonal public law and (to a limited extent) cantonal private law.
The right of ownership comprises the right to use the object, the right
to dispose of it (by alienating it, by creating limited rights in rem over it,
by destroying it, by consuming it, etc.), the right to enjoy it (by collecting
its fruits, etc.) and the right to possess it. This right is protected by various
actions11 and is enforceable against third parties, for instance in the insolvency proceedings of a third-party holder.
Like every other right, ownership is subject to the general duty to act in
good faith while exercising the right, grounded on Sect. 2.1 SCC. Moreover, the law imposes various obligations on the owner, mainly in the field
of immovable property.
1.3.
Other property rights in movables
Movables can be the object of the following limited rights in rem:
– usufruct (Sect. 745 et seq. SCC)
– pledge (Sect. 884 and 886 et seq. SCC)
– mortgage (limited to livestock and several other specific items such as
aircrafts; Sect. 885 SCC and additional legislation)
– right of retention (Sect. 895 et seq. SCC)
– pawn (Sect. 907 et seq. SCC)
It should be noted that a pledge can also be created over receivables and
other rights, as well as securities (Sect. 899 et seq. SCC).
1.4.
Protection of property rights
1.4.1. Actions protecting ownership and other rights in rem
Ownership is protected by the following legal actions under Swiss law:12
– action for recovery (rei vindicatio), Sect. 641.2 SCC. It belongs to the
owner who does not have possession (or only has indirect possession)
of an object, and is brought against the direct possessor13 of such an
object. Restitution is ordered by the judge, provided that the claimant
is the owner and that the defendant does not have a right to remain in
possession of the object. There is no time-limit to bring this action.
11
12
13
See infra, 1.4.
See Steinauer, no. 1015 et seq.; Schmid / Hürlimann-Kaup, no. 659 et seq.
See infra, 2.1.4.
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– action against disturbance (actio negatoria), Sect. 641.2 SCC. This action may be brought by the owner against the person who disturbs the
ownership of the claimant. In order for the action to be granted, the
alleged disturbance must be unlawful (in the sense that a disturbance
that is authorized either by law or by the owner is not unlawful) and
must be either present or imminent. Aim of the action is either to stop
the disturbance or to prevent imminent disturbance from happening.
There is no time-limit to bring this action.
– action to ascertain the ownership. This action is not grounded on the
Swiss civil code but on case law: the courts recognize that an owner
whose ownership is contested or uncertain may in principle bring action against the third party who contests his property or who otherwise
renders uncertain the owner’s right.14
The actions for recovery and against disturbance belong to the area of
property law. The action to ascertain the ownership has a more general
character, as such actions to lift uncertainties pertaining to a right may be
brought by the beneficiary of any right.
In addition. Swiss law offers various additional and specific actions
protecting rights in rem such as, for instance, the actio confessoria (action
protecting the beneficiary of a servitude against the person who disturbs the
enjoyment of the servitude; Sect. 737.1 SCC).
1.4.2. Further remedies
Ownership and other rights in rem are protected by several other actions,
such as an action for tort (Sect. 41 et seq. of the Swiss Code of obligations;15
SCO) and an action for unjustified enrichment (Sect. 62 et seq. SCO).
There are also specific actions based on inheritance law (Sect. 598 et seq.
SCC) and on debt collecting and bankruptcy law (Sect. 106 et seq. and 242
of the Federal law on debt collecting and bankruptcy;16 SDCB).
In addition, specific actions inure to the possessor (Sect. 927 and 928
SCC), or to the possessor of a movable (Sect. 934 and 936 SCC); in the
case of immovables, specific actions based on the land register system inure
to the holder of a right in rem (Sect. 937.1 and 975 SCC).
The actions for tort and for unjustified enrichment do not follow the
right in rem; they are a remedy compensating a financial loss and constitute
14
15
16
See for instance ATF 84 III 16.
Federal law completing the Swiss civil code (5th part: Law of obligations), of
March 30, 1911.
Federal law on debt collection and bankruptcy proceedings, of April 11, 1889.
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only indirectly a protection of rights in rem. The action provided by Sect.
598 et seq. SCC inures to the heir and does not follow the right in rem.
Actions based on possession do not follow the right in rem either, as they
aim to protect possession as such. On the other hand, actions based on the
land register system (Sect. 937.1 and 975 SCC) and on debt collection
and bankruptcy law (Sect. 106 et seq. and 242 SDCB) follow in principle
the right in rem.
Some actions aim to ensure recovery (Sect. 598, 641, 927, 934, 936 and
937.1 SCC, Sect. 106 and 242 SDCB) while some others aim at stopping
disturbances, or at preventing imminent disturbances (Sect. 641.2, 928 and
937.1 SCC). A third group allows financial compensation (Sect. 41 and
62 SCO), while the action based on Sect. 975 SCC concerns the registering or de-registering of rights in the land register. The action to ascertain
ownership and in some cases the action based on Sect. 937.1 SCC aim to
ascertain the existence of the right in rem.
1.5.
Transferability of movables; accessories
The main limitations or restrictions concerning the transferability of movables under Swiss law are the following.
Movables belonging to the various state entities (Federal government
and its agencies, cantonal governments and their agencies, municipalities)
are deemed to be “public things” (res publicae) and are subject to public law
if they are used by the state entity in order to accomplish its tasks (furniture,
computers, weapons used by the armed forces, etc.). As such, they are in
principle not transferable.17
In addition, Federal law limits the commerce of certain things that, as
such, are subject to private law (for instance, drugs,18 cultural property,19
human organs,20 etc.).
Last, according to Sect. 6.2 SCC, Cantons may – by adopting cantonal
public law – limit or prohibit the commerce in certain movables. They have
done so, for instance, to protect rare plants.21
17
18
19
20
21
See for instance Meier-Hayoz, Systematischer Teil, no. 198 et seq.; Rey, no. 183 et
seq.
Federal law on narcotics and psychoactive drugs, of October 3, 1951; SCFL
no. 812.121.
See for instance Sect. 724.1bis SCC and the Federal law on the international transfer
of cultural property (LITCP), of June 20, 2003.
See Sect. 7 of the Federal law on organ, organic tissue and cell transplantation, of
October 8, 2004; SCFL no. 810.21.
See Steinauer, no. 75a; Rey, no. 195.
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The agreement to limit the transferability of a movable only produces
contractual (inter partes) effects (privity of contract). However, certain
contractual agreements over immovables (such as preemption rights, for
instance) may be registered with the land register, thus gaining preference
over rights acquired thereafter on the immovable (Sect. 959.2 SCC).
Accessories are governed by Sect. 644 and 645 SCC, which do not limit
nor prohibit the transferability of such assets. Sect. 644.1 SCC merely provides that when the owner of an immovable or a movable disposes of his
asset, he is deemed to dispose of its accessories as well, unless otherwise
agreed by the parties. In other words, Sect. 644.1 SCC constitutes a legal
presumption that the disposing of movable includes the disposing of its
accessories.22
2.
Possession
2.1.
Notion and forms of possession
2.1.1. Notion
Section 919.1 SCC provides that the person who has the effective control
over an object is its possessor. Possession is a de facto relationship; a person
having effective control over an object is its possessor even if he has no
right over the object or no right to possess the object.
2.1.2. Elements
It is usually accepted that, under Swiss law, possession is composed of two
elements: a factual control and the intent to exercise such control.23 It is
also accepted that these requirements are not stringent. On the one hand,
the control need not be physical and can result from the circumstances
(such as, for instance, the behaviour of the possessor, who asserts that the
object remains in his sphere of influence even though it is in the hands of
a third party).24 And, the intent to possess need not be intense or very specific: a general intent to possess is sufficient;25 such intent to possess does
not require legal capacity, only capacity to consent (Sect. 16 SCC).26
22
23
24
25
26
Steinauer, no. 1103; Schmid / Hürlimann-Kaup, no. 707 et seq.
See for instance Steinauer, no. 178 et seq.; Schmid / Hürlimann-Kaup, no. 96 et seq.
Steinauer, no. 181 et seq.
Steinauer, no. 188; Stark, no 28 ad Sect. 919 SCC.
Steinauer, no. 189.
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It should be noted, however, that in some specific cases, possession exists notwithstanding the fact that one or both of its elements are lacking.27
For instance, Sect. 560.2 CC provides that a heir is in possession of the
assets that were in the possession of the deceased; this is so even if the heir
has no control (yet) over the estate and is perhaps even unaware of the
decease (thus lacking also the intent to possess).
2.1.3. Detention
In Swiss law, “detention” is a term used in the area of civil liability (e.g.:
liability for the detention of a motor vehicle).
The following forms of possession are recognized under Swiss law:
– direct possession and indirect possession: the direct possessor possesses the
asset without an intermediary, whereas the indirect possessor possesses
it through an intermediary, the direct possessor;28 for instance, a lessor
typically has indirect possession of the leased object, while the lessee
normally enjoys direct possession over it;
– originary possession and derivative possession: according to Sect. 920.2
SCC, those who possess as owners are originary possessors, the other
ones have derivative possession. It is not necessary for the possessor to
actually be the owner of an object to be its originary possessor; it suffices
that he behaves as such, for instance by lending the object to a third
party.29 E.g.: a thief has (as a rule of thumb) immediate possession of
the stolen item; if he leases the item to a third party, the latter becomes
its derivative and direct possessor, while the thief retains the indirect
and originary possession;
– co-possession and common possession: two persons can be jointly possessors of the same object. If each of them can exercise his possession
individually (for instance, they both have the keys to operate the car
they possess jointly), they are deemed to be co-possessors;30 if neither of
them can exercise possession individually (each of them has one of the
two necessary keys), they are deemed to be common possessors;31
27
28
29
30
31
Steinauer, no. 221a; Schmid / Hürlimann-Kaup, no. 109 et seq.
Steinauer, no. 232 et seq.; Schmid / Hürlimann-Kaup, no. 117a.
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– legitimate possession and illegitimate possession: possession is called legitimate when the possessor has a right to possess the asset; illegitimate
is the possession of the possessor who has no such right to possess the
asset.32
2.1.5. “Agent in possession”
Swiss law also recognizes the notion of “agent in possession” (or “servant in
possession”): this is the situation of a person having material control over
a thing, but who exercises such control in a subordinate way, according to
the instructions and on behalf of another person, the possessor.33 The agent
in possession is not a possessor.
2.1.6. Particulars
An employee typically is an “agent in possession”, and not a possessor of the
items entrusted to him by his employer.34
A lessee has in principle direct and derivative possession of the e.g.
leased car (the lessor being its indirect and originary possessor).35 If the
lessee sub-leases the car, he retains indirect possession and is an originary
possessor in his relation with the sub-lessee.
A custodian is a derivative and direct possessor or an “agent in possession”, depending on the extent of leeway he enjoys in exercising the material control over the object. A garage keeper would typically be considered
a direct and derivative possessor (the other party being an originary and
indirect possessor), as he can make independent decisions concerning the
car while it is under his control (where to park it, how to repair it, etc.).
Family members allowed to use movable property are either (derivative
and direct) possessors of such movable (in which case they enjoy co-possession with the family member who is its owner and who enjoys originary
and direct possession) or “agent in possession”, depending on the degree of
independence allowed to them by the possessor while exercising control
over the movable.
The pledgee enjoys direct and derivative possession over the pledged
asset, while the pledgor is their originary and indirect possessor.
32
33
34
35
Steinauer, no. 238.
Steinauer, no. 203; Stark, no 34 et seq. ad Sect. 919 SCC.
Steinauer, no. 205; Stark no. 35 and no. 46 ad Sect. 919 SCC.
Steinauer, no. 219.
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2.1.7. Role of these distinctions
These distinctions play a role in the application of the rules concerning
the transfer of possession (as, for instance, a derivative possessor is not in
a position to transfer an originary possession), concerning the protection
of possession (such protection not being granted to the “agent in possession”, who may however, according to most authors, exercise the right to
self-help on behalf of the possessor),36 concerning the liability linked with
possession (such liability being imposed on the illegitimate possessor),37
and concerning the acquisition by prescription (acquisition of ownership
by prescription requiring that the acquirer possess the object as owner, and
not as derivative possessor).38
2.1.8. Intensity of the relationship between
a possessor and the object
Swiss law does not require a particular degree of intensity of the relationship between a possessor and the object being possessed. In particular, the
requirements for acquiring possession are in this respect not stricter than
the ones for keeping it.
The following qualifications may be added:
– physical control is not necessary to transfer possession or to maintain
possession, but it is usually required in the case of unilateral acquisitions
of possession (e.g.: theft, acquisition of a res nullius, etc.);
– Sect. 921 SCC provides that possession is not lost when its exercise is
impeded or interrupted for reasons that are of a temporary nature; in
other words, possession may be maintained even when physical control
is lost, provided this interruption is due to temporary reasons.
The person who hangs a coat in a public wardrobe remains its possessor;
it results from the circumstances that the coat is not abandoned and this
‘loose’ physical control is sufficient to maintain the possession.39
Swiss law does not require “complete capture”. However, a degree of
physical control is necessary; it is accepted that possession of a wild animal
is acquired when it is caught in a pitfall, in a net, or when it is being brought
back by the hunter’s dog.40
36
37
38
39
40
See infra, footnote no. 74.
Sect. 938-940 SCC.
Steinauer, no. 2111b; Rey, no. 1999 et seq.
Steinauer, no. 180.
Scherrer, no. 27 ad Sect. 718-719 SCC.
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The transfer need not be “complete”. Swiss law recognizes various forms
of transfer of possession that operate without transfer of physical control,
such as longa manu traditio41 and constitutum possessorium.42
2.1.9. Possession of rights
According to Sect. 919.2 SCC, effective exercise of servitudes and land
charges establishes the possession of such rights. In other words, Swiss law
recognizes the concept of possession of rights, but restricts such possession
to servitudes and land charges.43
2.2.
Possession is a de facto relationship, to which the law attaches legal consequences. It is the means of publicity over movables: it renders public the rights in
rem over movables. The other main functions of possession are to produce:44
– a protective effect, possession being protected as such by the Swiss civil
code through specific legal actions as well as through a right to self-help
(Sect. 926-929 SCC);
– a legitimation effect, in the sense that the possessor of a movable is entitled to (rebuttable) presumptions (of the existence of his right, etc.;
Sect. 930-932 SCC);
– a defensive effect, in the sense that the former possessor is entitled to two
specific legal actions (Sect. 934 and 936 SCC);
– a translative effect, in the sense that the transfer of possession is (in principle) a requirement of the transfer of ownership over a movable (Sect.
714.1 SCC) and of the creation of a right in rem over a movable (Sect.
746.1, 884.3, 900.1, 901.1 and 909 SCC);
– a protective effect in favour of a bona fide acquirer of a right in rem over
a movable, since upon certain conditions the bona fide acquirer is protected in his acquisition, even though the alienor had no authority to
effect the transfer – provided the alienor was in possession of a movable entrusted to him or was in possession of a movable whose previous possessor had been dispossessed against his will more than five
41
42
43
44
Sect. 922.2 SCC; see infra, 2.3.2.
Sect. 924.1 SCC; see infra, 2.3.2.
Steinauer, no. 193 et seq. Some authors propose to extend the possession of rights to
claims as well as to intellectual property rights; see for instance Stark, no. 69 et seq.
ad Sect. 919 SCC.
See for instance Hinderling, p. 406 et seq.
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177
years (30 years in the case of cultural property) before the alienation
(Sect. 933, 934, 935, 714.2 and 884.2 SCC);
– a generative effect, as possession, when it is illegitimate, is a source of
liability for the possessor (Sect. 938-940 SCC);
– last, possession is a requirement of various forms of acquisition of rights
in rem, such as occupation (Sect. 658 and 718 SCC) and acquisition by
prescription (Sect. 661, 662, 728 and 941 SCC).
2.3.
2.3.1. Originary and derivative acquisition
Swiss law recognizes two main forms of acquisition of possession: originary
acquisition (where possession is acquired unilaterally, without the intervention of the previous possessor), and derivative acquisition (where possession
is transferred by the previous possessor to the acquirer).45
Originary acquisition of possession is not governed by a specific provision of the law; it is generally accepted that possession is acquired when
the acquirer asserts direct physical control over the object, with the intent
to become its possessor.46
2.3.2. Forms of derivative acquisition
Swiss law recognizes the following forms of transfer of possession (derivative acquisition):
– transfer by delivery, where the object whose possession is to be transferred is delivered to the transferee or where the means to exert control
over it (keys, etc.) are delivered to the transferee (Sect. 922.1 SCC);47
– transfer of open possession (longa manu traditio), where possession of an
object that is freely accessible (e.g.: a horse in a field) is transferred by
mere agreement between the parties (without actually handing over the
object) (Sect. 922.2 SCC);48
– delegation of possession, where the transferor transfers to the acquirer his
indirect possession of an object that is in the direct possession of a third
party (e.g.: the car whose possession is transferred is being repaired in
a workshop) (Sect. 924 SCC);49
45
46
47
48
Steinauer, no. 243 et seq.; Schmid / Hürlimann-Kaup, no. 133 et seq.
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– constitutum possessorium, where the transferor transfers indirect and
originary possession to the transferee while retaining the direct possession of the movable and becoming its derivative possessor (e.g.: a soloist
who sells and transfers the possession of his musical instrument to a
bank, while agreeing with the bank that he will be allowed to continue
to play the instrument by virtue of a lease or other agreement) (Sect.
924.1 SCC);50
– brevi manu traditio, where the transferee is already in possession of the
movable, being its derivative (and direct, in principle) possessor, and
the originary (and indirect) possessor transfers his possession to the
transferee (e.g.: the lender of a book agrees with the borrower that the
latter will not return the book and may keep it as its new owner); this
form of transfer is not governed by the Swiss civil code, being considered self-evident;51
– transfer by delivery of documents of title to goods (which have been entrusted to a carrier or deposited with a warehouseman), where the delivery of such documents is deemed to transfer possession of the goods
themselves (Sect. 925 SCC).
49
With the exception of the first and last forms of transfers just mentioned
(transfer by delivery, transfer by delivery of documents of title), these forms
of transfer do not involve the delivery of the movable whose possession is
being transferred; such delivery is replaced by an agreement between the
parties, which requires legal capacity.52
Moreover, it should be noted that, according to Sect. 717.1 SCC, if, in
order to transfer ownership of a movable, the parties transfer its possession
by means of a constitutum possessorium, the transfer of title will not be enforceable against third parties, if the transferor’s and the transferee’s intention was to prejudice such third parties or to circumvent the specific requirements concerning the creation of a pledge.53 In other words, the transfer of
ownership of a movable by means of a constitutum possessorium, although
valid, is unenforceable against third parties if such intent is underlying.
Last, one should point out that Sect. 884.3 SCC provides that a pledge
is not validly created if the pledgor retains exclusive (direct) possession of
the movable. Accordingly, a transfer of possession by constitutum possessorium (where the pledgor would keep direct possession over the pledged
item) is for instance not sufficient to create a pledge over a movable.54
49
50
51
52
53
See Steinauer, no. 269; Schmid / Hürlimann-Kaup, no. 155.
See Sect. 884.3 SCC, commented in the next paragraph.
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2. Possession
2.4.
179
Possessory actions54
2.4.1. Introduction
The Swiss civil code provides the possessor a right to self-help55 as well as
two specific legal actions protecting possession as such (“possessory” actions); in addition, Sect. 934 and 936 SCC provide two actions for the
former possessor, based on his “better right” to possession.56
The two possessory actions are:
– the action in case of unlawful usurpation (Sect. 927 SCC), which may
be brought by the former possessor (be he a legitimate or illegitimate
possessor, and whether his possession was direct or indirect, originary or
derivative) against the author of the usurpation57 (as well as, according
to some authors, against the universal successor of such author and his
singular successor in bad faith);58
– the action against unlawful disturbance (Sect. 928 SCC), which may be
brought by the possessor (be he a legitimate or illegitimate possessor,
and whether his possession is direct or indirect, originary or derivative),
against the author of the disturbance to the possession.59
2.4.2. Time limitations
Both possessory actions are subject to time limitations: they must be brought
“immediately” after the claimant has become aware of the usurpation (or of
the disturbance) and of the identity of the author, and in any case no later
than one year after the date of the usurpation or of the disturbance (Sect.
929 SCC). The actions being of a possessory nature, they involve no examination of the material legal situation; the authority of the judicial decisions
rendered is limited to the possessory issues.60 As an exception, Sect. 927.2
SCC provides that restitution will not be ordered if the defendant can immediately prove he is the beneficiary of a better right to the movable.
54
55
56
57
58
59
60
See for example: Bauer, no. 74 ad Sect. 884 SCC; Schmid / Hürlimann-Kaup,
no. 189.
See infra, 2.5.
See infra, 2.4.
See for instance Steinauer, no. 341a; Stark no. 4 et seq. ad Sect. 927 SCC.
Steinauer, no. 360 and no. 378.
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2.4.3. Summary proceedings
The law of civil proceeding is left to the Cantons; most of them submit the
possessory actions to the rules governing summary proceedings.61
2.4.4. Aim of the actions
The aim of the action in case of unlawful usurpation is the recovery of the
possession of the usurped item and the payment of damages; the aim of the
action against disturbance is to stop the disturbance (or to prevent imminent disturbance), as well as to obtain the payment of damages.
2.4.5. Actions based on a “better right” to possession
The Swiss civil code provides two specific legal actions to the former possessor of a movable, based on the assumption that he has a “better right” to
possession than the present possessor (whether he actually is the beneficiary
of a right to possess the movable at stake or not):
– the action of the former possessor whose movable has been stolen or lost
or who has otherwise been dispossessed of it against his will, who may
claim recovery against the present possessor (be he in good faith or in
bad faith) and who will prevail unless the present possessor can establish
that he is the beneficiary of a “better right” (the movable was previously
stolen, etc.);62 this action may be brought within five years of the dispossession63 (30 years in case the movable is cultural property);64
– the action of the former possessor of a movable against the acquirer in
bad faith, which may be brought at any time;65 restitution will be ordered unless the defendant establishes he is the beneficiary of a “better
right” or unless he establishes that the claimant is himself an acquirer
in bad faith.66
61
62
63
64
65
66
Steinauer, no. 359 and no. 378; Stark, Vorbemerkungen Besitzesschutz, no. 106.
Sect. 934 SCC. See Steinauer, no. 457 et seq.
Sect. 934.1 SCC.
Sect. 934.1bis SCC, which provides that the action must however be brought within
a year after the owner becomes aware of the location of the movable and of the
identity of its possessor.
Sect. 936.1 SCC. Steinauer, no. 475 et seq.; Schmid/Hürlimann-Kaup, no. 313 et seq.
Sect. 936.2 SCC.
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2. Possession
2.5.
181
Self-help
2.5.1. Forms of self-help
Sect. 926 SCC grants two forms of self-help to the possessor:
– a right of self-defense, to prevent an unlawful usurpation or an unlawful
disturbance (Sect. 926.1 SCC);67
– a right of immediate recovery, in case the possessor is being dispossessed (or
has just been dispossessed) by force or secretly (Sect. 926.2 SCC).68
2.5.2. Requirements
Both forms of self-help constitute extrajudicial protection of the possession, granted to the possessor in order to enhance public tranquility;69 in
other words, they may be exercised without prior recourse to the public
authorities. On the other hand, they must be exercised without recourse
to force that is not justified by the circumstances (Sect. 926.3 SCC). They
are subject to the requirement that the usurpation or the disturbance be
unlawful (in the sense that their perpetration is not authorized either by
law or by the possessor).70
In addition, the right of recovery must be exercised immediately, that is,
by expelling the trespasser right away or (in case of a movable and as Sect.
926.2 SCC states) by taking the movable back from the perpetrator caught
in flagrante delicto or stopped in his flight. The requirement that the dispossession be by force or secret is interpreted rather loosely in the literature.71
These rights of self-help may be exercised by the possessor, be he a
legitimate or illegitimate possessor, and whether his possession is direct or
indirect, originary or derivative;72 most authors consider that the “agent in
possession”73 may also exercise these rights on behalf of the possessor.74
67
68
69
70
71
72
73
74
See Steinauer, no. 316 et seq. and no. 331 et seq.
See Steinauer, no. 316 et seq. and no. 334 et seq.
Steinauer, no. 313; Stark, Vorbemerkungen Besitzesschutz, no. 2.
Steinauer, no. 326; Schmid / Hürlimann-Kaup, no. 220.
See for instance Steinauer, no. 336; Stark, no. 13 et seq. ad Sect. 926 SCC.
See supra, 2.1.5.
See for instance Steinauer, no. 206 and no. 318a; Stark, Vorbemerkungen ad
Sect. 926-929 SCC, no. 87; Hinderling, p. 422; etc.
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The rights of self-help are directed against the perpetrator.75 These
rights of self-help are based on a specific provision of the Swiss civil code,
Sect. 926 SCC, which is part of the rules of the code devoted to possession
(Sect. 919-941 SCC).
3.
Rights to hold, use or acquire a movable
Apart from ownership, Swiss law recognizes only two categories of rights in
rem over movables: the usufruct (see Sect. 745.1 SCC) and various forms
of security interests (pledge, pawn, mortgage, etc.).76 Other rights over a
movable (such as preemption rights, for instance) provide only an obligatory right to their beneficiary.
The lease of a movable is not a right in rem under Swiss law. It is governed by Sect. 253 et seq. SCO and provides solely a personal (or relative)
right to the lessee. It does not make a difference whether the leased property was acquired for value or not by the lessor. Sect. 256.1 SCO provides
that the lessor must deliver the leased item to the lessee; the law does
not require however that the lessee obtain physical control of the object
(although this would normally be the case), as the lessee may for instance
himself sublease to a third party the item leased to him.77
The lessee enjoys various protections based on the contract.78 These
protections are of a personal nature and enforceable only inter partes; however, the law provides a specific protection to the lessee in Sect. 261 SCO.
This provides that if the lessor transfers title (to the leased item) or loses
his title (thereto) in bankruptcy or other debt collection proceedings, the
lessor is replaced by operation of law by the acquirer as a party to the lease
agreement. As far as can be determined, the issue whether the movable is
kept in his own interest by the lessee is moot under Swiss law; it should be
noted however that if the lessee ceases to accept that he only has derivative possession of the leased item, the originary possession of the lessor
extinguishes.79
The right of pre-emption, option to buy, etc., also provide only a personal
right to their beneficiary.
75
76
77
78
79
Steinauer, no. 319. Some restrictions apply when the perpetrator is himself a possessor of the object in dispute, see Steinauer, no. 329 et seq.
See supra, 1.3.
See Sect. 262 SCO.
See Sect. 259a et seq. SCO.
See Steinauer, no. 224.
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183
Under Swiss law, the buyer under reservation of title is the beneficiary of
a personal right towards the transferor, who remains the owner of the movable until complete performance by the acquirer.80
Indirect representation does not provide ownership to the principal of
the movable acquired by the agent. It is the agent who becomes the owner
of the item so acquired: the principal acquires ownership only when the
agent in his turn transfers the title to him.81 However, if the seller is unaware that his contracting party is an indirect agent and if the identity of
the purchaser is indifferent to him, then the principal acquires ownership
directly from the seller.82
4.
4.1.
The rules of the Swiss civil code on the transfer of movables apply to
movables in the sense of Sect. 713 SCC, i.e. objects that can be moved
from one location to another as well as energy83 that has been stored in
a device.
They do not govern the transfer of immovables,84 of claims85 or of intellectual property rights.86 They apply to a limited extent to the transfer of
company shares or other negotiable instruments.87
In addition, it should be noted that ad hoc registers are kept for aircrafts88
and ships,89 with the consequence that these movables are not subject to
Sect. 713 et seq. SCC, but follow a specific regimen similar to the one
concerning immovables.90
80
81
82
83
84
85
86
87
88
89
90
See Steinauer, no. 2046. See also Rey, no. 1739 et seq.
See for instance von Planta, no. 2 ad Sect. 434 SCO.
See von Planta, no. 3 ad Sect. 434 SCO.
Literally: “forces of nature that do not constitute immovable property”.
See Sect. 656 et seq. SCC.
See Sect. 164 et seq. SCO.
See for instance Sect. 33 of the Federal law on patents, of June 25, 1954; SCFL
no. 232.14.
See for instance Sect. 683 et seq. and 967 et seq. SCO; Steinauer, no. 1983 et seq.
Federal law on the aircrafts register, mentioned supra, footnote no. 9.
Federal law on the ships register (LSR), of September 28, 1923.
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4.2.
Definitions
Movables are defined in Sect. 713.1 SCC as objects that can be moved from
one location to another as well as energy. This definition includes electricity, if it is stored; it also includes liquids and gases, if they are contained in
a movable. Money in the form of banknotes and coins is also included in
the definition of movables.
According to Sect. 641a.1 SCC, animals are not objects. Sect. 641a.2
SCC provides however that rules governing objects apply to animals, save
where special provisions have been enacted for animals. In other words,
animals are not movables; but the provisions governing the movables may
be applied to them, in supplement to certain specific rules governing animals provided by the Swiss civil code (inter alia Sect. 641a, 651a, 720a,
722.1bis, 722.1ter and 728.1bis SCC).
Movables that are cultural property are governed by specific rules (Sect.
724, 728.1ter and 934.1bis SCC91), in addition to the ordinary provisions
applying to movables (Sect. 713 et seq. SCC).
Aircrafts and ships for which ad hoc registers are kept are not governed by
Sect. 713 et seq. SCC, but by specific rules.92 They follow (although they are
movables) a specific regimen similar to the one concerning immovables.93
Intangibles are considered movables in the sense of Sect. 713 SCC, only
if they are represented by a negotiable instrument.
Negotiable instruments form a special category of movable property. Although they are movables in the sense of Sect. 713 SCC, they are subject
to specific provisions94 that leave little room for the application of the
ordinary rules governing movable property.95
91
92
93
94
95
See also the Federal law on the international transfer of cultural property
(LITCP).
See footnotes no. 88 and no. 89.
See footnotes no. 88 and no. 89.
See for instance Sect. 965 et seq. SCO.
www.sellier.de
Part II:
Transfer of ownership
from the owner to the transferee
(derivative acquisition)
5.
System of transfer
5.1.
Basic characteristics; overview
5.1.1. Moment of transfer
The various aspects linked to the right of ownership pass to the transferee
in one single moment in time depending on the following cases:
– Where the transfer is based on a contract or on a unilateral promise:
ownership passes upon transfer of possession.96
– Where the transfer is based on the law of successions: ownership passes upon death of the de cujus to the community of legal or instituted
heirs.97 Ownership passes upon transfer of possession in case of legacy,98
as the beneficiary of the legacy has only a claim against the legal or
instituted heirs.
– Where the transfer is based on changes in matrimonial statutes, merger
or transformation of companies, ownership passes at the moment of the
change, irrespective of the transfer of possession.99
– Where the transfer is based on auction sales (be it execution auction
sales or optional auctions sales), ownership passes upon fall of the hammer.100
96
97
98
99
100
Sect. 714.1 SCC; ATF 93 II 373; Rey, no. 1688.
Steinauer, no. 263.
Sect. 484 and 562 SCC.
Steinauer, no. 2007.
Sect. 235 SCO.
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186
5.1.2. Cause of the transfer of ownership and “real agreement”
The transfer of ownership of movables is causal101 (i.e. based on a valid
contract or another cause) and requires (subject to the above mentioned
exceptions) a transfer of possession.102
The transfer of possession is to be based on valid consent of the parties
to transfer the ownership, respectively to acquire the ownership.103 This
valid consent is considered a “real agreement”. The Swiss literature makes
a distinction between the cause of the transfer, the “real agreement”, and
the transfer of possession itself.104 This conception is however controversial.
According to some authors, the “real agreement” is a mere aspect of the
transfer of possession,105 or even considered unnecessary.106
5.1.3. Retention of title
As a rule, payment is not a condition to the transfer of ownership. The
parties to the contract may however agree on a retention of title, whereby
the transferor retains ownership of the movable until full payment.
A retention of title agreement is to be registered in a special register at the
domicile of the acquiring party.107 In the absence of such a registration, the
retention of title has no effect on the passing of ownership.108 The fact that
the transferee disposes of the movable prior to the registration of an agreed
retention of title clause may however be considered a criminal offence.109
5.2.
General issues
5.2.1. Identification of goods for the purpose of passing of risks
Where the contract deals with an obligation to transfer generic goods, identification of goods is expressly required for the passing of risks.110 Switzer101
102
103
104
105
106
107
108
109
110
ATF 78 II 207; ATF 84 III 141; ATF 96 II 145; Rey, no. 1735.
Sect. 714.1 SCC; ATF 93 II 373.
ATF 85 II 97; Steinauer, no. 2014; Rey, no. 1705.
Steinauer, no. 2014; Foëx, p. 159; Tuor / Schnyder / Schmid / Rumo-Jungo, p. 997.
Haab / Simonius, no. 40 ad Sect. 714 SCC.
Isolated opinion: Piotet, p. 17 et seq.
Sect. 715 SCC.
ATF 110 II 173.
ATF 106 IV 254.
Sect. 185.2 SCO.
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187
land is also party to the CISG.111 Under the CISG, identification of goods
whether by marking on the goods, by shipping documents, or by notice
given to the buyer, is a condition for the passing of risks.112
of transferring possession
Identification of goods is also an implied condition for the passing of ownership, since the passing of ownership is based on a transfer of possession,
and the transfer of possession cannot take place so long as the goods are
not identified.
According to the principle of speciality, property rights are in reference
to determined goods.113 This principle of Swiss law would also exclude a
transfer of ownership prior to identification of goods for the purpose of
performance of a contract on generic goods.
5.2.3. Modalities of identification
The transferor (obligor) has the right to identify the goods to be transferred,
except if otherwise agreed by the parties. This agreement can be expressed
or implied.114 In the context of a sale, the seller has the unilateral right to
select the goods. Buyer’s approval is not a condition for a valid identification of goods.115 All and any criterions of description of the generic goods
used by the parties are to be met for the selected goods,116 and the transferor
(obligor) cannot select goods below average qualities.117
In the event the selected goods do not meet the criteria agreed by the
parties, then the obligee can avail itself of the rules of Swiss law dealing
with non-performance.118 In the event the selected goods are below average
quality, then the obligee can avail itself of the rules of Swiss law dealing
with defective products.119
111
112
113
114
115
116
117
118
United Nations convention on contracts for the international sale of goods of
April 11, 1980.
Sect. 67.2 and 69.3 CISG.
ATF 112 II 406; Steinauer, no. 139; Rey, no. 333. See also above, 1.1.2.
Sect. 71 SCO.
ATF 84 II 158.
ATF 121 III 453.
Sect. 71.2 SCO.
ATF 121 III 453. By contrast, under the CISG, the buyer may rely on the rules dealing with defective products (Sect. 35 CISG).
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5.2.4.119 Relation between party autonomy and transfer of possession
The principle of party autonomy is a central idea for the rules on transfer of
ownership in the sense that the transfer is causal and the cause is usually an
agreement between the parties. However, the Swiss system is not consensual, and the mere agreement between the parties would not suffice for the
passing of ownership, if transfer of possession does not take place.120
With respect to the cause of the transfer, the basic principle of Swiss
law is the freedom of contract.121 By contrast, the modalities of a transfer
of possession are provided by statutory laws.122
5.2.5. Postponing the time of transfer
As a rule, ownership passes upon transfer of possession. The parties can
postpone the time of transfer of ownership to a latter time by:
– A retention of title clause, provided this clause is registered in a special
register at the transferee’s domicile.123 The condition that a retention of
title clause be registered in a special register at the transferee’s domicile
is required in order to protect third parties from an apparent transfer
of ownership that would not correspond to the agreement made by the
parties.124
– A condition precedent, whereby the cause of the transfer (the contract)
does not enter into force prior to the occurrence of a certain condition.
In that case, the transfer of ownership does not take place prior to the
occurrence of the condition.125 As long as the condition is pending, the
obligor is not allowed to do anything to impair the proper fulfilment
of his obligation, and the beneficiary of the conditional obligation is
entitled to ask for protective measures to be ordered by the courts, in
case his rights are jeopardised.126 The possession of the movable can be
transferred to the transferee prior to the occurrence of the condition. In
that case, however, the transferee does not acquire ownership over the
goods as long as the condition has not taken place and is to return the
movable if the condition does not take place. If the movable was deliv119
120
121
122
123
124
125
126
Sect. 197.2 SCO
Sect. 714.1 SCC.
Sect. 19 SCO.
Below, 5.4.
Sect. 715 SCC.
ATF 93 III 96; ATF 96 II 161.
Sect. 151.2 SCO.
Sect. 152.1 and 152.2 SCO.
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189
ered to the obligee before the occurrence of the condition, the obligee
is entitled to keep any benefit he enjoyed in the meantime should the
condition be fulfilled. By contrast, he must restore what he has gained
if the condition does not occur.127 Restitution of benefits takes place on
the basis of the Swiss rules on unjustified enrichment.128
5.3.
Cause of the transfer
5.3.1. Admissible cause
All contracts whereby a party agrees to transfer ownership to the other
party is admissible as a valid cause of transfer.129 There is no limitation with
respect to the admissible type of contracts, provided however the contract
remains within the general limits of contractual freedom (i.e. the content
of the contract is legal, the contract does not contravene bonos mores, and
the performance of the contract is not impossible).130
Donations / gifts are treated like other contracts with respect to transfer
of title.131 Unilateral promises (such as a public offer of prizes or rewards)132
are recognized as a valid cause for a transfer of ownership, and such transfer
is not subject to specific rules. The transfer of possession is however to be
accepted by the transferee (“real agreement”).
The cause of the transfer of ownership may be a court order. Even in
this case, the transfer of ownership takes place upon transfer of possession.133 There is an exception to this principle with respect to court decisions dealing with sharing of common ownership, which takes place upon
final judgement.134
5.3.2. Void contract, avoided contract
The ownership of the movable does not pass to the transferee in situations
where the cause of the transfer is:
127
128
129
130
131
132
133
134
Sect. 153 SCO.
ATF 129 III 264.
Steinauer, no. 2010; Rey, no. 1689.
Sect. 20 SCO.
ATF 86 II 221; ATF 85 II 97.
Sect. 8 SCO.
Zobl, no. 29 ad Sect. 729 SCC.
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190
– A void contract. Contracts that refer to impossibility, have illegal consent, or violate bonos mores, are void.135
– A contract concluded by a party who had no capacity to enter into
the contract, unless the legal representative of this party ratifies said
contract.136
– An avoided contract. A contract can be avoided in case of mistake,
deception, duress, or overreaching. The avoidance of contract has a
retroactive effect (ex tunc).137 However, with respect to long term contracts having been partially performed by the parties, avoidance without
retroactive effect (ex nunc) can be ordered by the court if restitution is
not practicable.138
– A terminated contract, if a party to the contract became insolvent and
was not able to secure the performance of the contract.139 In that case,
movables delivered on the basis of the contract are to be returned.140 The
legal nature of the transferor’s right to have the movable returned (based
on contract or on ownership) is controversial under Swiss law.141 However,
the better position is that rules dealing with terminated contracts in case
of non-payment or defective products142 should apply by analogy.
5.3.3. Terminated contract in case of non-payment
or defective products
Termination of contract in case of non payment (debtor’s default)143 or
delivery of defective products144 does not impair the transfer of ownership
to the transferee. The transferor is entitled to have the delivered movable
returned, but this right is of contractual nature.145 Practically speaking, it
means that the right of the transferor to claim restitution of the movable is
time barred ten years after termination. The ten-year statute of limitation is
the ordinary statute of limitation for contractual claims under Swiss law.146
135
136
137
138
139
140
141
142
143
144
145
Sect. 20 SCO; ATF 74 II 62; ATF 83 II 284.
Sect. 19 SCO; ATF 117 II 18.
ATF 83 II 18.
ATF 129 III 320.
Sect. 83 SCO.
ATF 114 II 152.
Schraner, no. 51 ad Sect. 83 SCO.
Below, 5.3.3.
Sect. 107 SCO.
Sect. 205 and 368 SCO.
ATF 126 III 119; ATF 123 III 16; ATF 114 II 152; Thévenoz, no. 36 ad Sect. 107
SCO and no. 6 ad Sect. 109 SCO; Venturi, no. 9 ad Sect. 205 SCO.
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In addition, the transferor does not benefit from legal protection linked to
ownership as long as the movable is not returned to him.
A condition subsequent (or “resolutive condition”) has no retroactive
effect, except as otherwise agreed by the parties.147 While this case has
never been decided by the Swiss courts, it is generally considered that an
agreed retroactive effect of the condition means that the ownership over
the delivered goods returns to the transferor upon occurrence of the condition.148
This point of view seems, however, to be in contradiction to the rule
dealing with retention of title clauses.149 It would not be acceptable that
transfer of ownership of the movable be subject to the condition subsequent that the price be paid, while this condition subsequent would not
be registered in the Swiss register of retention of title as provided for by
Sect. 715 SCC. Therefore, the better position is that the transferor would
only have a contractual right to the return of the movable, as is the case
where the contract is terminated due to the debtor’s default150 or a defective product.151
146
5.3.4. Trusts and similar
The purpose of the contract whereby the ownership was transferred has
no influence on the above mentioned principles. The fact that the ownership of the goods was transferred in a fiduciary capacity for administration
purposes or for security purposes is not relevant with respect to the passing
of ownership.152
The Swiss Supreme Court has however recently modified its position
on this issue with respect to the right of the transferor’s creditors to obtain
attachment of the movable held by the transferee in a fiduciary capacity.
While this right was traditionally denied on the basis that the transferor
was no longer the legal owner of the goods,153 the attachment of a movable
held by a third party in a fiduciary capacity is now accepted by the Swiss Supreme Court where the transferor is the beneficial owner of the goods.154
146
147
148
149
150
151
152
153
154
Sect. 127 SCO.
Sect. 154.2 SCO.
Pichonnaz, no. 24 ad Sect. 154 SCO.
Sect. 715 SCC.
Sect. 109 SCO.
Sect. 208 SCO.
ATF 85 II 97; ATF 107 III 103.
ATF 107 III 103.
ATF 126 III 95.
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5.4.
Traditio: delivery and delivery equivalents
5.4.1. Purpose of the delivery requirement
The link between transfer of ownership and transfer of possession is due to
the assumption that the possessor of a movable is also its owner.155 Third
parties may rely on this assumption. Even in situations where the possessor
of a movable is not its owner, third parties relying in good faith on the assumption based on possession are protected by law.156 The acquiring party
is in good faith if he did not know and could not have known that the
transferor had no right to dispose of the movable.157 The acquiring party
cannot rely on the assumption that the possessor of the movable has the
right to dispose of this movable in a situation where the price for the movable is exceptionally low.158
Admissible forms of transfer of possession are provided by law and cannot be otherwise created by agreement between the parties. While physical
delivery is the most current form of transfer of possession, other forms of
delivery are not considered subsidiary to physical delivery, but an alternative solution available to the parties.
5.4.2. Physical delivery of movables
Physical delivery means that transferee takes possession of the movable.159
The transfer of possession is to be based on the valid consent of the transferor and transferee, respectively, to accept the transfer of ownership (real
agreement).160 The valid consent of both parties to transfer the possession
is to be distinguished from the cause of the transfer. Even in a case where
the parties agree that the ownership of a movable is to be transferred to
the acquiring party (for example in a sales contract), the transfer of possession is not valid if the acquiring party steals or otherwise takes possession
of the object of the sale without seller’s consent. The real agreement is a
legal act, which involves the capacity of both parties. Should the transfer
of possession be obtained by duress or deception, then the real contract
can be avoided.161
155
156
157
158
159
160
161
Sect. 930 SCC.
Sect. 714.2 and 933 to 936 SCC.
ATF 85 II 580.
ATF 69 II 110; ATF 107 II 41.
Steinauer no. 253; Rey, no. 1716.
ATF 85 II 97.
Steinauer no. 255a.
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193
The transfer of possession itself (as being distinct from the real agreement) is a material act.162 It is however sometimes considered that the
distinction between the real agreement and the transfer of possession is
artificial.163
5.4.3. Delivery of means to take control of movables
Transfer of possession of the movable can take place through handing over
certain means or instruments to take physical control over the movable,
such as a key,164 provided however the change of control is apparent.165 The
following rules apply:
– The delivery of means to take control over the movable is not subsidiary to other forms of delivery, but is an alternative solution available
to the parties.
– Handing over of items that only symbolize the movable would not suffice for the purpose of transferring the possession.166
– The transfer of possession takes place when the transferee has obtained
physical control of the instruments.
– It has been decided by the Swiss Supreme Court that in the case there
is more than one instrument to take physical control over the goods
(for example two keys), the transfer of possession does not take place
validly in so long as the transferor keeps one of the instruments (e.g. the
transferor holds back the second key).167 Taking into consideration the
alternative ways of transferring the possession admitted under Swiss law,
this decision seems disputable (since the transferor may have kept a key
for a purpose other than remaining owner of the movable). However,
depending on the circumstances, the fact that the transferor did not
transfer all the keys may be construed as establishing his intent not to
transfer the ownership. In that case, the ownership would not be validly
transferred due to the lack of a real agreement.
– There is no Swiss case law dealing with codes to give access to the goods.
In our opinion, the fact the transferor keeps knowledge of the code
would not prevent possession from passing to the transferee, provided
however the transferee is able to change the code at its convenience.
162
163
164
165
166
167
Haab / Simonius, no. 40 ad Sect. 714 SCC.
Sect. 922.1 SCC; ATF 80 II 235; ATF 89 II 314; Rey, no. 1717.
ATF 44 II 398.
Steinauer, no. 254.
ATF 80 II 235.
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194
5.4.4. Open transfer of possession
Open transfer of possession (longa manu traditio) is admitted. Open transfer
of possession can take place where access to the movable is free, i.e. public,
or where a group of persons have access to the movable. In that case, the
mere agreement between the transferor and the transferee on the transfer
of possession is sufficient for the purpose of transferring the possession.168
5.4.5. Marking the goods
Marking the object or affixing a sign on it would not suffice for the purpose of transferring the possession so long as the transferor keeps exclusive
control over the goods (i.e. in a situation where an open transfer of possession169 is not possible).
5.4.6. Transfer of documents
Transfer of ownership over goods may also take place through transfer of
documents representing the goods, such as a bill of lading.170
Such document is usually issued by a carrier, in accordance with the
international conventions dealing with carriage. A document representing
the goods within the meaning of Sect. 925 SCC can also be issued by a warehouseman in the context of a contract of bailment, provided however this
warehouseman has received from the competent authorities the permission
to issue negotiable warehouse receipts.171 In the absence of such permission,
the document is still valid, but the warehouseman is to pay a fine.172
Documents representing the goods are to be drafted in accordance with
SCO article 1153, and to contain the indications listed in this provision.
Should these indications be missing, then the document would not be admissible for the purpose of transferring ownership over the goods.173 Electronic documents are not yet admitted under Swiss law.
A copy of the document can be issued by the carrier or the warehouseman for the purpose of constituting a pledge over the goods. The document
168
169
170
171
172
173
Sect. 922.2 SCC; ATF 132 III 155.
Above, 5.4.4.
Sect. 925 SCC. This possibility is also provided for in the Federal law on maritime
navigation: Sect. 16 LMN; ATF 122 III 73.
Sect. 482 SCO.
Sect. 1155.2 SCO.
Sect. 1154 SCO; ATF 109 II 144.
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195
is to bear the indication “warrant”, and the issuance of a warrant is to be
mentioned on the other documents representing the goods.174
In case of conflict between a good faith acquirer of the document and
a good faith acquirer of the goods, the good faith acquirer of the goods is
protected by the law in priority over the good faith acquirer of the document.175
When the document is transferred to a bank for the purpose of a documentary credit, the ownership of the goods does not pass to the bank except
when otherwise agreed by the parties. The ownership of the goods passes
from the seller to the acquiring party upon transfer of the document by the
bank to this acquiring party.176 The bank would however have a retention
right over the documents177 in the event the buyer’s account with the bank
is not sufficient for the purpose of covering the price to be paid.
5.4.7. Carriage of goods by an independent carrier
The transfer of ownership is based on the transfer of possession, provided
however that the transfer of possession is based on a valid cause. In a situation where the goods are to be carried by an independent carrier, the key
issue is whether the transferor or the transferee has concluded the contract
with the carrier.
Usually, the carrier is an agent of the transferor (sender): the transferor
enters into the contract with the carrier. As a consequence, the transfer of
possession to the acquiring party takes place upon delivery of the goods to
this acquiring party by the carrier.178 Transfer of the ownership over the goods
takes place at this moment, provided this transfer is based on a valid cause.
In the event the carrier is an agent of the acquiring party (as it may be
the case in a FOB contract), then the transfer of possession (and consequently the transfer of ownership) takes place upon delivery of the goods
by the transferor to the carrier selected by the acquiring party.179
In situations where the goods are sold during the carriage, then the
seller may instruct the carrier to possess the goods on behalf of the buyer.
In that case, transfer of possession from seller to buyer takes place by way
of delegation.180
174
175
176
177
178
179
180
Sect. 1154.2 SCO; Sect. 902.2 SCC.
Sect. 925.2 SCC.
ATF 122 III 73.
Sect. 895 SCC.
ATF 93 II 373.
Sect. 923 SCC. Steinauer, no. 258.
Sect. 924.2 SCC; see below 5.4.10, movable under the control of a third party.
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196
5.4.8. Brevi manu traditio
Transfer of possession by brevi manu traditio, i.e. mere agreement between
the parties while the movable is already in possession of the transferee, is
admitted under Swiss law.181 In that case, the transfer of possession takes
place upon agreement between the parties. Should this agreement be subject to a condition precedent, then the transfer of possession takes place
upon occurrence of the condition.182
The transfer of possession through brevi manu traditio leads to a transfer
of ownership provided this transfer is based on a valid cause. Usually, this
cause is a contract. It can be another cause, such as the obligation to return
the goods in a situation where the contract is terminated.
5.4.9. Constitutum possessorium
Transfer of possession by constitutum possessorium, i.e. mere agreement between the parties while the movable remains in direct possession of the
transferor – even after the transfer, is admitted under Swiss law.183 This
agreement is valid provided the transferor remains possessor of the movable in a particular capacity, e.g. a contract or a limited right over the
movable.184 The transfer of possession by constitutum possessorium suffices
for the purpose of transferring the ownership over the movable, provided
this transfer of possession is based on a valid cause.
Good faith third parties are protected by the provisions of Sect. 717
SCC: a transfer of ownership by way of constitutum possessorium cannot be
opposed against them if this form of transfer was chosen by the transferor
or the transferee for the purpose of deceiving them, or to circumvent the
specific requirements concerning the creation of a pledge.185 Inter partes, the
transfer of ownership remains valid,186 but good faith third parties can for
181
182
183
184
185
186
SJ 2006, 265; Steinauer, no. 288.
SJ 2006, 265.
Sect. 924.2 SCC.
ATF 70 II 199; ATF 77 II 127; Stark, no. 28 ad Sect. 924 SCC.
Creation of a pledge over movables is subject to the condition that the debtor has
no physical control over the movables during the period of validity of the pledge:
Sect. 884.3 SCC; ATF 119 II 236. A transfer of ownership for security purposes
would violate this principle, if this transfer of ownership is based on a constitutum
possessorium (at least if the choice of this structure by the parties is fraudulent): ATF
88 II 73.
ATF 70 II 199.
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197
example obtain a seizure of the movable in the context of debt collections
proceeding against the transferor.187
It is admitted that a constitutum possessorium can take place while the
transferor is not yet in possession of the movable. In that case, the transfer
of ownership to the transferee takes place as soon as the transferor acquires
direct physical control over the movable.188
In a situation where the ownership over the goods passes to the transferee, but the transferor retains direct physical control (possession) of the
movable in a particular capacity, then the transferor would benefit from a
right of retention of the movable for any claim in relation with the movable.189
5.4.10. Movables under the control of third parties
Transfer of possession by delegation, i.e. by mere agreement between the
parties while the movable is under the control of a third party, is admitted
under Swiss law,190 unless the ownership of the transferor is disputed by
this third party.191 Such transfer of possession suffices for the purpose of
transferring ownership over the movable, provided however this transfer
of possession is based on a valid cause.
A notice is to be served on the third party, whereby the third party is
instructed to hold the movable for the transferee. This notice is formally to
be served by the transferor, but it is admitted that this notice can be served
by the transferee on behalf of the transferor.192
Consent by the third party is not required. The transfer of possession is
valid upon agreement between the transferor and the transferee, irrespective of the notice to the third party.193 However, so long as the third party
was not served the notice, he still holds the movable on account of the
transferor and may validly return the movable to the transferor.194
The third party in possession may oppose against the transferee all remedies he had against the transferor for refusing to return the movable.195 In
187
188
189
190
191
192
193
194
195
ATF 73 III 142.
ATF 84 II 253; Stark, no. 46 ad Sect. 924 SCC.
Sect. 895 SCC.
Sect. 924.1 SCC; ATF 112 II 444.
ATF 132 III 155; Rey, no. 1730.
ATF 72 II 351; Steinauer, no. 277.
Sect. 924.2 SCC; ATF 121 III 85; RFJ 2003 244 / 250; ATF 112 II 406; ATF 93 II
461.
Sect. 924.3 SCC.
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198
particular, the right of retention that the third party could oppose against
the transferor remains valid against the transferee. In spite of the clear
wording of Sect. 924.3 SCC, the question of whether the contract between
the transferor and the third party can be opposed against the transferee is
disputed (as such consequence would contradict the principle of privity of
contracts).196
5.5.
Registration
5.5.1. Principle
Transfer of ownership in movables by registration is limited to ships and
aircrafts.
5.5.2. Ships
The Swiss register of ships is organized in conformity with a Federal statute
dated September 29, 1923.197 The register is kept by cantonal authorities,
designated by the Federal government.198 Abstracts of the register can be
delivered to third parties provided however they have a legitimate interest
in obtaining such abstract.199
The act of registration is of constitutive nature and ownership over the
ship takes place upon registration.200 Contracts for the transfer of ownership
over a ship are subject to formal requirements.201
Ownership over the ship can however be acquired by succession, court
order, expropriation or execution auction prior to the registration. In these
cases, the registration is of declarative nature.202 The acquiring party is
however to be registered in order to be able to dispose of the ship.
196
197
198
199
200
201
202
Stark, no. 37 ad Sect. 924 SCC; Steinauer, no. 280 a; Rey, no. 1731a.
Federal law on the ships register (LSR). On the types of ships to be registered, see the
guidelines published in RNRF 1996 p. 341 et seq. and RNRF 1997 p. 411 et seq.
Sect. 1 of the Federal ordinance on the ships register (LSR), of June 16, 1986.
Sect. 28 LSR, Sect. 970 SCC.
Sect. 26.2 and 31 LSR.
Sect. 32 LSR.
Sect. 31.2 LSR.
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199
5.5.3. Aircrafts
The register of the aircrafts is organised in conformity with a Federal statute
dated October 7, 1959.203 The register is kept by the federal office of civil
aviation.204 Abstracts of the register can be delivered to third parties.205
The act of registration is of constitutive nature for any acquisition of the
aircraft by contract.206 Transfer of ownership over the aircraft takes place
upon registration.207 Contracts for the transfer of ownership over an aircraft
are subject to formal requirements.208
5.6.
Consensual system
The Swiss legal system for the passing of ownership is not a consensual
system in the sense that the contract is not sufficient for the purpose of
transferring the ownership.209
5.7.
Real agreement
5.7.1. Concept of real agreement
The transfer of possession is a condition of the transfer of ownership over
movables under Swiss law. This is not a sufficient condition: a valid cause
and a real agreement are also required.
The transfer of ownership is to be based on the consent of the transferor
to transfer the ownership, and on the consent of the transferee to receive
the ownership.210 This exchange of consent is known as the “real agreement”, to be distinguished from the cause of the transfer.
As mentioned above, there is some dispute in the Swiss literature with
respect to whether this real agreement is a specific condition for a transfer
of ownership.211 This condition is denied by some authors, at least in so far
as this condition would be an autonomous condition, to be distinguished
203
204
205
206
207
208
209
210
211
Federal law on the aircrafts register (LAR).
Sect. 3 LAR.
Sect. 13 LAR.
Sect. 23 LAR.
Sect. 14 LAR.
Sect. 23.2 LAR.
Rey, no. 1691.
ATF 85 II 97.
Steinauer, no. 2014a; Rey, no. 1699 et seq.
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200
from the passing of possession itself.212 This dispute is however very theoretical, since it is generally admitted that there is an implied “real agreement” where the parties agree to transfer of possession on the basis of a
valid cause.
5.7.2. Special rules on the real agreement
The real agreement is subject to no formal requirements. It can result from
the circumstances or be implied by the parties. The real agreement is considered to be concluded at the time of delivery, and is to be distinguished
from the contract that is the cause of the transfer.213
The real agreement is a bilateral act, in the sense that it results out of
the consent by the transferor to transfer the ownership, and the consent of
the transferee to acquire such ownership.214
The real agreement is not valid, and this invalidity would impair the
transfer of ownership, if:
– The transferor is not the legitimate owner of the movable, or has no
capacity to dispose of the movable (as can be the case if the owner is
bankrupted, or if the movable were seized in the context of debt collection proceedings against the owner).215
– One of the parties is not a competent person (i.e. this party is not able
to understand the consequences of his acts).
– The agreement is avoided because of fraud, deception, mistake or duress.216
5.7.3. Purpose of the concept
The concept of real agreement is considered useful for the purpose of explaining the mechanism of retention of title (being considered a conditional real agreement217) and the concept that the transfer of possession is
not valid if the transferor has no capacity to dispose of the movable.218
212
213
214
215
216
217
218
Haab / Simonius, no. 40 ad Sect. 714 SCC; see also the isolated opinion of Piotet
(p. 17 et seq.) whereby the real agreement would not be a condition at all.
ATF 85 II 97.
Steinauer, no. 2013 and no. 255; Rey, no. 1705.
Stark, no. 81 and no. 91 ad Sect 922 SCC.
ATF 58 II 347, Leemann, no. 5 et seq. ad Sect. 715 SCC.
Steinauer, no. 2014a.
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5.8.
201
Payment
5.8.1. Principle
Payment is not a condition to the transfer of ownership, except when the
parties agree to a retention of title provision. Even in this case, the retention of title provision is only enforceable if duly registered.219
5.8.2. Discussion and relation to insolvency law
There is no discussion in Switzerland about whether payment should be
considered a condition of the transfer of ownership.
In some very limited cases, the seller may claim return of unpaid goods
in case of bankruptcy of the buyer.220 This rule is considered an exception.
The general principle that the passing of ownership is subject to the condition that the price be paid would be considered in contradiction to the
principle of equality between creditors in case of bankruptcy. As a general
principle, a contractual provision whereby the seller is entitled to terminate
the contract and claim return of the goods in case of buyer’s bankruptcy is
null and void.221
5.9.
Right to dispose
5.9.1. Persons having the right to dispose of movables
Not only the owner has the right to dispose of the movable: bankruptcy
administrations,222 debt enforcement offices,223 liquidators in the context
of a composition agreement,224 official estate administrator,225 or executors
of a succession226 have also such a right and may validly transfer ownership
over movables belonging to the owner.
219
220
221
222
223
224
225
226
Sect. 715 SCC.
Sect. 203 SDCB.
Sect. 212 SDCB.
Sect. 204 SDCB.
Sect. 96 SDCB.
Sect. 319 SDCB.
Sect. 595 SCC.
Sect. 518 SCC.
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202
5.9.2. Transferor without the right to dispose
In the event the transferor has no right to dispose of the movable, then the
real agreement is void and there is no transfer of ownership over the movable. The principle “nemo plus juris ad alium transferre potest quam ipse habet”
(No one can transfer more than he has) applies under Swiss law.227
The fact that the transferor acquires this right at a latter stage would not
be sufficient for a valid transfer of ownership to the transferee, unless the
real agreement was subject to an express or implied condition precedent.
There is an exception to these principles in case the owner of a movable was deprived of his right to dispose in the context of debt collection
proceedings.228 In that case, it is considered that a transfer of ownership by
the owner could not be opposed against the creditors,229 the protection of
a good faith acquirer being however reserved.230
5.9.3. Ratification by owner
The owner can ratify the acts of a person lacking the right to dispose of
the goods.231 In that case, the transfer of ownership would take place upon
transfer of possession, the real agreement between the person lacking the
right to dispose the goods and the transferee being considered validly concluded on behalf of the owner, as a consequence of the ratification.
Should the owner intend to change the terms and conditions of the
real agreement (for example with respect to the entry into force of the
real agreement and, as a consequence, the date of the transfer of ownership), then the transferee is to confirm his approval of the new terms and
conditions. Should it not be the case, the transferee would not be bound
227
228
229
230
231
Sect. 96 and 204 SDCB.
ATF 113 III 34; Gilliéron, no. 24 ad Sect. 96 SDCB and no. 13 ad Sect. 204 SDCB.
The question of whether the transfer of ownership by the owner to a third party,
while in contradiction with the seizure of the movable, is null and void, or only
without effect for the creditors is disputed. It is however generally considered that
the effect of an insolvency measure is limited to the relationship between the debtor
and the creditors taking part in the proceedings: Marchand, p. 74; Gilliéron, no. 24
ad Sect. 96 SDCB and no. 13 ad Sect. 204 SDCB.
Sect. 96 par. 2 SDCB. The same principle applies in the context of bankruptcy proceedings with respect to immovable properties (ATF 115 III 111). The protection of
a good faith acquirer of a movable in the context of bankruptcy proceedings remains
disputed (Marchand, p. 121).
Sect. 38 SCO.
www.sellier.de
6. Double selling
203
by the amended real agreement and the transfer of ownership would not
take place validly.
6.
Double selling
6.1.
Passing of ownership
In case A, the owner of a movable sells it to B, and afterwards to C; neither B nor C acquires ownership by entering into the contract: rather, the
transfer of possession, based on the intent of the parties to respectively
transfer and acquire possession, is necessary for transferring ownership.232
As a consequence, B or C would acquire ownership upon delivery of the
movable or upon transfer of possession in another way. In the event the
movable is delivered to B, ownership of the movable passes to B, and C may
claim compensation against A on the basis of a breach of contract.
6.2.
Good or bad faith
Good or bad faith of the acquiring party does not play any role. An exception to this principle is however provided in Sect.152.3 SCO. If owner A
sells the movable to buyer B and the sale contract is subject to a condition
precedent, then the sale of the movable to third party C is null and void.
However, C is protected by law if he was in good faith, i.e. he had no
knowledge of the conditional sale between A and B.233
6.3.
Dispute between buyers
In the situation of a double sale, a dispute may arise between buyers, prior to
delivery of the movable to either one of them, over which of the buyers has
a preferential right to delivery. In that case, one of the buyers may request
seizure of the movable, in the context of provisional measures.234
Consequently, the court must decide whether the movable should be delivered to B or to C. It is considered that the movable is to be delivered to the
buyer who had concluded the sales contract first in time with the seller.235
232
233
234
235
Sect. 714.1 SCC.
Pichonnaz, no. 31 ad Sect. 152 SCO; Sect. 933 SCC.
SJ 1962 p. 15; SJ 1972, p. 230; Engel, p. 27.
Engel, p. 27; Becker, no. 11 ad Vorb. art. 32-40; Oser / Schönenberger, no. 6 ad Sect.
97 SCO; ATF 87 I 479.
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204
6.4.
Insolvency of one of the buyers
In the event the movable is delivered by seller A to B, one of the two
buyers in the example above, and B files bankruptcy, then the seller may
claim payment of the price according to the Swiss rules on debt collection
proceedings. The second buyer, C, has no right against B (or against his
bankruptcy estate). He may claim compensation against seller A.
7.
Selling in a chain
7.1.
Real agreement
If A sells to B and B to C, and A delivers the movable directly to C, then
the “real agreement” (agreement to transfer, respectively to receive the
possession of the movable) is an agreement between B and C, A being the
agent of B for the purpose of transferring the possession to C.
7.2.
Ownership
In the situation described above, ownership is directly transferred from A
to C. B does not acquire ownership, as the possession of the movable was
never transferred to him. In particular, neither A nor C ever owned the
movable on behalf of B.
The situation may be different however if the movable was under the
control of a third party, as for example a carrier.236 In such a case, the carrier
may have received a notice from A to hold the movable on B’s account, and
then a notice from B to hold the movable on C’s account. Consequently,
B received ownership of the movable during the intermediary period when
the carrier held the movable on his behalf, since possession was transferred
to B by delegation.237
Another situation would be that A (the original owner) keeps the movable for a special cause (for example a lease agreement) after having sold
the movable to B. In that case, ownership may pass to B by constitutum
possessorium.238 If, at a later stage, B instructs A to deliver the movable to
the hands of C, then C may acquire ownership in his turn.
236
237
238
On this situation, see Sect. 68 CISG.
See above 5.4.10.
See above 5.4.9.
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7.3.
205
Retention of title
In a selling in a chain situation, if the intermediary party never received
ownership of the movable, then a retention of title clause in the contract
with the final buyer would not be valid (since the intermediary party cannot retain title that he never had).
By contrast, in a situation where the intermediary party acquired ownership by delegation of possession or constitutum possessorium, a retention
of title clause in the contract with the final buyer would be theoretically
possible. However, the condition that a retention of title clause is to be
registered in order to be enforceable against third parties239 would cause
such circumstance to be unlikely to happen under Swiss law.
7.4.
Invalidity
If A sells to B and B to C, and A delivers the movable directly to C, and
if the contract between A and B is null and void, then A claims restitution of the movable from buyer C, as the original seller A would still be
the legitimate owner of the movable. The final buyer C may in his turn
claim compensation from the intermediary person B, on the basis of the
rules of Swiss law dealing with third party claims in sales contracts (warranty with regard to title transferred).240 The final buyer C would not be
protected by the rules of Swiss law dealing with good faith acquirers of
ownership, since the intermediary person B was never been in possession
of the movable.241
If the contract between the intermediary buyer B and the final buyer C
is null and void, then the intermediary buyer B may claim for restitution of
the movable from the last buyer only in a situation where the intermediary buyer received ownership of the movable. Should this not be the case,
then the intermediary buyer B may only sue the final buyer C for unjustified enrichment.
239
240
241
Sect. 715 SCC.
Sect. 192 et seq. SCO.
Sect. 933 SCC.
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206
8.
Transfer or acquisition by means of indirect
representation
8.1.
Transfer of ownership
In the situation where party X acquires a movable from B, but in a fiduciary capacity, i.e. in X’s own name but on the account of another person A,
ownership passes from B to X as party to the acquisition contract. Passing
of ownership from X to A requires another transfer of possession from X
to A.242
8.2.
Legal assignment of claims
Where the intermediary person X, acting in a fiduciary capacity, has acquired
legal claims against a third person, such claims pass to principal A as soon as
principal A has fulfilled all his obligations arising out of the mandate.243
There is no other condition to this legal assignment of claims except
payment of the intermediary, including his fees and reimbursement of all
his costs and expenses.244 If the intermediary assumed obligations in the
proper performance of the fiduciary contract, the principal is also to release
the intermediary from these obligations.245
The question of whether the principal may benefit from this legal assignment of claims in a situation where the parties to the fiduciary contract
agreed that the intermediary person was to be the owner of all movables acquired on the principal’s account, until termination of the fiduciary agreement, remains unresolved in Swiss case law.246
Bankruptcy of the intermediary would not prevent this legal assignment of claims in favour of the principal. In case the intermediary person
is declared bankrupt, the assigned claims are not part of the bankruptcy
estate.247
242
243
244
245
246
247
Engel, p. 410; ATF 100 II 200.
Sect. 401.1 SCO.
Sect. 402 SCO.
Sect. 402 in fine SCO.
ATF 117 II 429: the Swiss Supreme Court refused to decide this issue.
ATF 102 II 103.
www.sellier.de
9. Insolvency
8.3.
207
Bankruptcy of the intermediary person
In case the intermediary person is declared bankrupt, the movables acquired
in the performance of the fiduciary contract belong to the bankruptcy estate
(to the exception of claims legally transferred to the principal).
The principal may however claim that the movable, acquired by the
intermediary person on his account, be returned to him.248 This claim is
not based on ownership (since the principal is not the legitimate owner of
the movable), but on a special right in the bankruptcy.
This right to claim movables is limited in three ways:
– There is no right to claim movables that were not acquired by the
intermediary person in the performance of the fiduciary contract, but
transferred by the principal to the intermediary person.249 There is an
exception to this principle in case the intermediary person is a bank.
In that case, the clients of the bank would benefit from a right to claim
the movables held in a fiduciary capacity by the bank irrespective of
whether the movables were acquired by the bank or transferred by the
client to the bank.250
– In case of payment made by a third party to the intermediary person,
this payment is to be individualized – as being owned on the principal’s
account – by this intermediary person. Practically speaking, it means
that the intermediary person is to have a separate account for assets
owned for the principal.251
– Retention rights remain unaffected.252 Practically speaking, it means
that the bankruptcy estate may refuse to return the movable so long
as claims from the intermediary person against the principal remain
unpaid.
9.
Insolvency
9.1.
General issues; effect of bankruptcy on contracts
The bankruptcy administrator may either terminate or confirm a not yet
fulfilled contract between the bankrupt and a third party. In the event
the bankruptcy administrator confirms the contract, the other party to the
248
249
250
251
252
Sect. 401.3 SCO.
ATF 117 II 429.
Swiss federal statute on Banks, of November 8, 1934 (SCFL 952.0), Sect. 37d.
ATF 127 III 273.
Sect. 401.3 in fine SCO.
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contract may demand that security be furnished.253 If the performance of
the contract by the bankruptcy administrator is not secured, the other party
to the contract can terminate the contract.254
As exceptions to these general principles, some contracts are automatically terminated in case a party to the contract is declared bankrupt. This is
for example the case for mandate contracts,255 insurance contracts in case
of bankruptcy of the insurer,256 or joint venture contracts.257
There is no distinction between contracts for generic or specific goods
for the purpose of these principles of Swiss law.
A contract or transaction made by a bankrupt debtor prior to bankruptcy can be avoided by the bankruptcy administrator, or by an individual
creditor on the basis of an assignment of a claim made by the bankruptcy
administrator, in the following cases:
– Gifts, voluntary settlement, and transactions equivalent to gifts that
took place within a period of one year prior to the debtor being declared
bankrupted.258
– Granting of collateral for existing obligations, settlement of a debt of
money by a manner other than normal means of payment, and payment
of unmatured debts that took place within a period of one year prior
to the debtor being declared bankrupted, provided however that the
debtor was already insolvent during this period, and that the recipient
was aware of this insolvency.259
– Transactions carried out by the debtor with the intention, apparent
to the other party, of disadvantaging all of, or certain of, his creditors,
that took place within a period of five years prior to the debtor being
declared bankrupted.260
In the event the beneficiary of the transaction does not hold the movable
any longer (i.e. he has transferred ownership of the movable to an acquiring party), the bankruptcy administrator or an individual creditor may file
the avoidance action against the acquiring party only in case the acquiring
party was in bad faith when acquiring the movable.261
253
254
255
256
257
258
259
260
261
Sect. 211.2 SDCB.
Sect. 83.2 SCO.
Sect. 405 SCO.
Sect. 37.1 LIC.
Sect. 545.1.3 SCO.
Sect. 286 SDCB.
Sect. 287 SDCB.
Sect. 288 SDCB.
Sect. 290 SDCB; ATF 65 III 142; RJN 1982 293.
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9. Insolvency
9.2.
209
Insolvency of the transferor
The transferee is not protected against the transferor’s general creditors
from the moment of the conclusion of the contract. To the contrary, the
transferor’s general creditors may request that the movable to be delivered
to the transferee be seized, or attached. In case the transferor is declared
bankrupt, the movable to be delivered to the transferee becomes part of
the bankruptcy estate.
In all these cases, the transferee has no right over the movable. He
may only claim compensation against the transferor for non-delivery of the
movable (or file such a claim in the transferor’s bankruptcy proceedings).
By contrast, upon delivery of the movable, ownership passes to the transferee. As a consequence, upon delivery, the transferee is protected against
claims by the transferor’s general creditors (except in case of an avoidance
action filed by the bankruptcy administrator as described above).
The parties cannot deviate from these rules. It is expressly provided by
the Swiss statute on bankruptcy that a seller who transferred the object of
the sale to the purchaser prior to the opening of the bankruptcy proceedings may not withdraw from the contract and reclaim the object, even if
he expressly reserved the right to do so.262 As a general rule, the contract
cannot provide for special claims in case one of the parties is declared
bankrupt.263
If the contract is invalid but the goods have already been delivered to
the transferee, then ownership did not pass to the transferee (as a valid
cause is lacking). As a consequence, the transferor is still the legitimate
owner of the goods, which may be seized, attached, or integrated into the
bankruptcy estate, upon request of the transferor’s general creditors. The
transferee may however benefit from a retention right, allowing him not
to return the movable so long as the price paid for the movable is not
reimbursed.264
9.3.
Insolvency of the transferee
In case of insolvency of the transferee, the transferor may refuse to deliver
the movable if the payment of the price is not properly secured. In the absence of such security, the transferor may withdraw from the contract.265
262
263
264
265
Sect. 212 SDCB.
Staehelin, p. 378; Jeandin, p. 94.
Sect. 895 SCC and Sect. 82 SCO; ATF 113 II 450.
Sect. 83 SCO and Sect. 211.2 SDCB.
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In case the contract is null and void as a consequence of an illegality,
impossibility, violation of bonos mores, or rescinded in case of mistake,
deception or duress, the transferor remains owner of the movable (since
ownership did not pass to the transferee due to the lack of valid cause); he
may claim for restitution on the basis of his ownership.
In case the contract is terminated as a consequence of the transferee’s
default in the payment of the price,266 the transferee is to return the movable to the transferor. This obligation is, however, of a contractual nature
only.267 Consequently, the general creditors of the transferee may obtain
seizure or attachment of the movable in their favour, and there is no specific
protection for the transferor, until the movable is returned to him.
In case of an avoidance action filed by the bankruptcy administrator of
the transferee’s estate, or by a creditor of the transferee, the transferor may
be ordered to reimburse payment made by the transferee. Consequently,
the transferor has a right to request that the movable be returned to him.268
If the movable is no longer held by the transferee, then the transferor has
only a financial claim against the transferee.
9.4.
Right of stoppage in transit
If the movable is to be carried and the carriage contract is subject to Swiss
law, then the sender, as long as the movable is still in the hands of the carrier, is entitled to recover the freight against compensation of the carrier,
except:
– If a waybill has been issued by the transferor and delivered by the carrier
to the consignee,
– If the transferor cannot return the receipt delivered by the carrier,
– If the carrier has sent the consignee (transferee) a written notice that
the freight has arrived, or
– If the consignee (transferee) has requested delivery after the arrival of
the freight at its destination.269
These provisions of Swiss law are subsidiary to provisions of international
conventions dealing with carriage of goods.270
The right of stoppage is contractual in nature and has no effect on the
transfer of ownership, i.e. transfer of ownership takes place upon delivery
266
267
268
269
270
Sect. 107 SCO.
ATF 61 II 255; ATF 114 II 52; ATF 126 III 119.
Sect. 291 SDCB.
Sect. 443 SCO.
For example: Sect. 13 CMR. See Marchand, FJS 164, p. 17 et seq.
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10. Relation to rules on transfer of risk
211
of the movable by the carrier to the transferee, except if the carrier was an
agent of the transferee (but in that case the transferor is not the sender), or
if a document representing the goods was delivered to the transferee (but
in that case, the transferor would have no right of stoppage).
10.
Relation to rules on transfer of risk
10.1.
General principles
The transfer of risk is a concept that is not linked to the transfer of ownership.271 Under Swiss internal law,272 the transfer of risk takes place upon
conclusion of the contract if the sold goods were specific goods.273 If the sold
goods were generic goods, the transfer of risk takes place upon delivery to
the carrier, upon delivery by the carrier to the transferee, or upon the moment that the goods are at transferee’s disposal, depending on the delivery
obligations of the transferor as agreed by the parties.274
10.2.
Passing of risk in case of transferor’s default in delivery
or transferee’s default in acceptance
In case of transferor’s default in the delivery, transferor bears all risks until
delivery.275 In case of transferee’s default in acceptance, transferee bears all
risks from the date delivery was offered to him.276
These principles apply to the transfer of risks (i.e. the liability of the
transferor in case of loss or damage to the goods) but do not interfere with
the passing of ownership.277
271
272
273
274
275
276
277
Schönle, no. 18 ad Sect. 185 SCO.
On international sales, see Sect. 66 et seq. CISG.
Sect. 185.1 SCO.
Sect. 185.2 SCO.
Sect. 103 SCO.
Loertscher, no. 13 ad Sect. 92 SCO.
Schönle, no. 18 ad Sect. 185 SCO.
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Part III:
“Original” acquisition – no direct transfer of
ownership from an owner to transferee
11.
Acquisition by accession, commixture or processing
11.1.
11.1.1. Notion of accession
The Swiss civil code does not define the concept of “accession”. In Sect.
642.2, it provides that integral parts of an object are parts that constitute
an essential element of it according to local custom and that cannot be
separated without destroying, deteriorating or alterating it.
It is usually accepted that it does not matter whether such destruction,
deterioration or alteration affects the object itself (as the wording of the
law suggests) or the integral parts.278 The “main part” is called an object
or a “complex thing” i.e.: an object that is composed of various parts that
are not considered to be separate objects in and of themselves by the law279
and that, therefore, do not have an independent existence as far as rights
in rem are concerned.
Some parts are deemed to be integral parts even if the requirements of
Sect. 642.2 SCC are not met: this is the case of natural fruits (Sect. 643.3
SCC), as well as of structures, other built objects, plants and springs (Sect.
667.2 SCC).
11.1.2. Person acquiring ownership through accession
According to Sect. 642.1 SCC, the owner of an object is also the owner of
its integral parts. This is true even if the integral part has been attached to
the object against the will of its owner (or of the owner of the object).280
Depending on the circumstances, the (former) owner of the part – who has
lost his property by virtue of accession – is entitled to a ius tollendi (right of
278
279
280
Steinauer, no. 109.
Steinauer, no. 1062; see also Rey, no. 453.
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213
removal) or to a claim for damage (for breach of contract or for unlawful
act) or for unjustified enrichment.281
11.1.3. Role of good faith and bad faith
Good faith is not required to acquire ownership by accession. Acquisition
of ownership by accession takes place even if the part is attached to the
object unlawfully, or if such attaching is the result of the intervention of
nature and not of a person.282
Bad faith plays a limited role,283 such as in the case of accession with
land property (Sect. 672.2 and 672.3 SCC).
11.1.4. Movable becoming an integral part of an immovable
A movable becomes an integral part of an immovable when the requirements of Sect. 642.2 SCC284 are met, if it becomes part of a construction or
of another built object (Sect. 667.2 SCC), or if it is a plant that has been
planted in the ground (Sect. 667.2 SCC). The owner of the immovable
acquires the ownership of such integral parts.
11.2.
Commixture, confusion
11.2.1. In general
Commixture and confusion are governed by Sect. 727 SCC. This provision
does not define commixture and confusion as such, but Sect. 727.1 SCC
provides that there is commixture (or confusion) when objects belonging
to different owners are joined (or mixed, in the case of confusion) together
so as to produce a new object and they cannot be separated without substantial deterioration, or only at prohibitive cost and labour.285
281
282
283
284
285
See Steinauer, no. 1068 et seq.; Rey, no. 449.
Steinauer, no. 1062; see also Rey, no. 453.
Sect. 939 SCC recognizes a – limited – ius tollendi (right of removal) to the illegitimate possessor (on this notion, see above 2.1.4.) who attaches a thing to the thing
he possesses illegitimately only if he is an illegitimate possessor in good faith, but
leading authors consider that the illegitimate possessor in bad faith should also benefit from such a right (see for instance Steinauer, no. 522a; see also infra, 19.3.1.).
See 11.1 above.
See also Steinauer, no. 2118 et seq.; Rey, no. 1927 et seq.
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Sect. 727.1 SCC provides that the owners of the original parts acquire
joint ownership (i.e., co-ownership in the sense of Sect. 646 et seq. SCC)
of the new objects produced by commixture or confusion.286 Their shares in
the joint ownership are determined by the respective value of the part they
owned before commixture or confusion;287 in case these values cannot be
established, the shares are deemed to be equal (Sect. 646.2 SCC).
However, Sect. 727.2 SCC provides that if one of the commixed (or
commingled) objects is of a subsidiary nature compared to the other object
with which it has been commingled (or comixed), then the new object
belongs to the owner of the main object; e.g.: if perfume oil belonging to
a party is blended with appropriate liquids, belonging to another party, in
order to produce marketable perfume, the owner of the perfume oil becomes
the sole owner of the perfume.
Sect. 727.3 SCC expressly reserves claims for damages (based on breach
of contract or on unlawful act) and for unjustified enrichment.288
11.2.2. Goods of the same kind
Sect. 727 SCC is not applicable if goods of the same kind are mixed together, as no new object will result from such mixing. It is usually accepted
however that in such case, the owners of the objects of the same kind
acquire joint ownership (“co-ownership”; Sect. 646 et seq. SCC) of the
objects that have been mixed together, with the proviso that in case money
(banknotes and coins) belonging to different parties is mixed, the person
having performed such commixture acquires sole ownership of the banknotes
and coins (if they cannot be identified).289
Good faith is not required to acquire joint ownership (or, as the case may
be, sole ownership) of the commingled or commixed movables. Bad faith is
not required for the relevant claims for damages or unjustified enrichment
to be brought.
286
287
288
289
It is usually accepted that Sect. 727.1 SCC is mandatory law; see for instance Zobl,
no. 64 ad Sect. 727 SCC.
Steinauer, no. 2119a; Zobl, no. 57 ad Sect. 727 SCC.
See Steinauer, no. 2119f; Rey, no. 1973 et seq.
See Steinauer, no. 2121 et seq.
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11.3.
215
Specification, processing
11.3.1. In general
Specification is governed by Sect. 726 SCC. There is specification when
a person processes or transforms a matter that belongs to a third party and
thus produces a new object (Sect. 726.1 SCC).290
The person having processed or transformed the matter acquires ownership of the new object if the value of his labour is higher than that of the
material;291 conversely, if the value of the matter is higher, the owner of the
latter acquires ownership of the new object (Sect. 726.1 SCC).
Sect. 726.3 SCC expressly reserves claims for damages (based on breach
of contract or on unlawful act) and for unjustified enrichment.292
It should be noted however:
– that if the person having performed the specification was not in good
faith, the judge may at the request of the other party grant the ownership of the new object to such party even though the value of the labour
is higher than that of the material (Sect. 726.2 SCC);
– that Sect. 726 SCC is not applicable if the person performing the specification does so as employee of the owner of the material.293
The processor is the person who performs the specification. However, as
has just been noted, Sect. 726 SCC is not applicable if the specification is
performed pursuant to a work contract.
Good faith is not required to acquire ownership. However, Sect. 726.2 SCC
provides that if the processor was not in good faith, the judge may grant the
ownership of the new object (acquired by the processor by virtue of Sect.
726.1 SCC) to the (former) owner of the matter even though its value was
lower than that of the labour. In other words, a thief would acquire ownership of a new object created by processing stolen materials, if the value
290
291
292
293
See also Steinauer, no. 2104 et seq.; Rey, no. 1943.
It is usually accepted that Sect. 726.1 SCC is a mandatory rule. See for instance:
Schwander, no. 6 ad Sect. 726 SCC; Rey, no. 1898 and no. 1910. See however Liver,
p. 374.
See Steinauer, no. 2105c et seq.; Rey, no. 1918 et seq.
Steinauer, no. 2104c; Rey, no. 1912.
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of his labour is higher than the value of the materials (Sect. 726.1 SCC);
however, the (former) owner of the materials may ask the competent judge
to award such ownership to him, invoking the bad faith of the thief (Sect.
726.2 SCC).
Bad faith is not required for the relevant claims for damages or unjustified enrichment to be brought.294
11.4.
Further general aspects
11.4.1. End of co-ownership
Each co-owner can request the termination of the co-ownership, unless the
co-owners have previously agreed not to do so (for a maximum period of
30 years) or if the object in co-ownership is dedicated to a long-standing
purpose.295 Sect. 650.2 SCC (which provides that the parties may renounce
the dissolution of co-ownership for a period of 30 years) is a mandatory
rule.
If the parties cannot agree to terminate their co-ownership, each coowner can request that the judge end such co-ownership.296
11.4.2. Rights of third parties
It is usually accepted that specification, accession, confusion and commixture render ineffective a reservation of title concerning the object that
ceases to exist as such, as a consequence of such specification, commixture
or accession.297 However, leading authors consider that if commixture or
confusion take place, reservation of title extends by subrogation to the
share in the joint ownership and – in case the new object belongs solely to
294
295
296
297
Some authors propose to apply Sect. 672 SCC per analogiam if the owner of the matter acquires ownership of the new thing, with the consequence that the processor is
entitled to compensation representing the full increase in value of the thing, if he
acted in good faith, and to compensation limited to the minimal increase in value
for the owner, if the possessor was not in good faith; see for instance: Steinauer,
no. 2105f; Liver, p. 376.
Sect. 650.1 and 650.2 SCC.
Sect. 651 SCC.
See Meier-Hayoz, no. 51 ad Sect. 642 SCC (accession); Steinauer, no. 2060 (specification, commixture).
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the owner of the main object before commingling – to the new object itself
(if such main object was the object of the reservation of title).298
Third parties’ rights in rem also cease to exist with the disappearance of
the object as a consequence of specification, commixture or accession.299
Again, leading authors consider that, in the case of commixture or confusion, the rights in rem extend by subrogation to a share in the joint ownership and – in case the new object belongs solely to the owner of the main
movable before commingling – in the new movable itself (if such main
object was the object of the rights in rem previously).300
Claims for damages (based on breach of contract or on unlawful act)
and for unjustified enrichment are expressly reserved by Sect. 726.3 and
727.3 SCC.301 These remedies also apply in case of accession;302 these remedies also inure to the beneficiary of a limited right in rem who is losing his
right as a consequence of accession, specification or commixture. Under
certain circumstances, a ius tollendi (right of removal) is granted to the party
losing his property.303
11.4.3. Role of legal capacity
Legal capacity is not required. Accession304 as well as commixture and confusion305 can be the result of an event of nature and do not require human
intervention. Specification is deemed to be a “factual act”,306 which produces its consequences even if the processor lacks legal capacity or even
lacks capacity to consent.
298
299
300
301
302
303
304
305
306
See for instance Steinauer, no. 2119c; Rey, no. 1972; Zobl, no. 60 ad Sect. 727
SCC.
See Steinauer, no. 1067a (accession) and no. 2105a (specification); Rey, no. 447
(accession) and 1914 (specification).
See for instance Steinauer, no. 2119c; Rey, no. 1967 and no. 1971.
See above, 11.3.1. and 11.2.1.
See for instance Steinauer, no. 1070; Rey, no 449.
See Sect. 753.2 (usufruct) and 939.2 (illegitimate possessor in good faith) SCC as
well as Sect. 65.2 (unjustified enrichment and 422 (negotiorum gestio) SCO. See also
Sect. 671 (accession with land property) SCC.
See above, 11.1.1.
See Steinauer, no. 2118c; Rey, no. 1930 et seq.
See Steinauer, no. 2104d; Rey, no. 1902. This is also the case of commixture and
confusion when they are the result of a person’s activity, see Steinauer, no. 2118c;
Rey, no. 1930.
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12.
Rules of good faith acquisition
12.1.
12.1.1. In general
Good faith acquisition of a movable is governed by Sect. 714.2, 933, 934
and 935 SCC. They provide:
– that the good faith acquirer of a movable that was entrusted to the alienor is immediately protected (Sect. 714.2 and 933 SCC);
– that the good faith acquirer of a movable that was stolen or lost (or
whose possessor was otherwise dispossessed against his will) is protected
if a certain period of time (in principle: five years) has elapsed since the
theft, loss or other dispossession (Sect. 714.2 and 934 SCC);
– that the good faith acquirer of money (banknotes and coins) and of negotiable instruments to the bearer is immediately protected, whether these
items have been entrusted to the alienor or have been stolen, lost or
whether their possessor was otherwise dispossessed of them against his
will (Sect. 714.2 and 935 SCC).
12.1.2. Particulars
If seller B was never the owner of the movable, a good faith acquirer C is
protected, if the movable was entrusted to B, or if it was stolen from owner
A more than five years earlier (or 30 years in case of cultural property),
or if the movable (whether entrusted or stolen) is money or a negotiable
instrument to the bearer.
If the seller’s right (to dispose) was avoided with retroactive effect prior to
the transfer to the bona fide acquirer, the latter is protected, as the movable
will (in principle) be deemed to have been entrusted to the seller.
If the seller’s (B) contract with his supplier (S) was terminated or avoided
with an ex nunc effect, the situation depends on the type of contract concluded by B and S and on the relationship between the bona fide acquirer
and S. In any case, termination or avoidance with ex nunc effect does not
automatically retransfer the ownership to the party terminating or avoiding
the contract.
In the case of a double sale (B sells and transfers the possession of a movable to C and afterwards sells it also to D), B is the owner of the movable
when it is transferred to the acquirer C, who therefore becomes the new
owner of the movable.
If direct possession of the movable has been transferred to the first acquirer C, B has retained at most only indirect (and derivative) posses-
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sion. Possession will be transferred to D by B by means of a delegation of
possession;307 in such a case, the acquirer is deemed to be in good faith only
if such transfer of indirect possession did not prevent the acquirer from being aware of circumstances that would have destroyed his good faith.308
If indirect possession only has been transferred (by means of a constitutum possessorium)309 to the first acquirer C, D is protected if he is in good
faith as the movable is entrusted to B; if the requirements of Sect. 717.1
SCC are met,310 D need not be in good faith, as the ownership acquired
by the first acquirer under these circumstances is not enforceable against
third parties.
12.1.3. Specific rules for certain types of movables
The bona fide acquirer of stolen or lost movables is protected only if five
years have elapsed since the movable was stolen or lost (Sect. 714.2 and
934.1 SCC). He is protected immediately if the stolen or lost movable is
money or a negotiable instrument to the bearer (Sect. 714.2 and 935 SCC).
The bona fide acquirer of an order negotiable instrument is protected if the
specific requirements of Sect. 1006 SCO are met.
Sect. 714.2 and 933-935 SCC are not applicable to registered aircrafts
or ships. The bona fide acquirer of such items is protected by other provisions.311
The bona fide acquirer of a negotiable instrument to the bearer is protected immediately, whether the instrument was entrusted to the alienor or
whether it was stolen, lost, or whether the possessor was otherwise dispossessed against his will (Sect. 935 SCC).
Sect. 714.2, 933 and 934 SCC are applicable to works of art. However,
if a work of art is deemed to be cultural property (in the sense of Sect. 2 of
the Federal law on the international transfer of cultural property312) and has
been stolen or lost (or whose owner has been otherwise dispossessed against
his will), the bona fide acquirer will be protected only if a period of thirty
years has lapsed since the day the owner was dispossessed313 or if (within
307
308
309
310
311
312
313
See above, 2.3.2. and 5.4.10.
See for instance Stark, no. 87 ad Sect. 933 SCC.
See above, 2.3.2. and 5.4.9.
See above, the text corresponding to footnote no. 53.
See Sect. 16.1 of the Federal law on the aircrafts register (supra, footnote no. 9) and
Sect. 28 of the Federal law on the ships register (supra, footnote no. 89).
See supra, footnote no. 19.
Sect. 934.1bis SCC.
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this timeframe) one year has passed since the owner has become aware of
the location of the movable and of the identity of its possessor.314
No specific provisions govern the bona fide acquisition of bulks under
Swiss law. Requirements of a bona fide acquisition must be met for each
item; if the requirements are not met for one item, protection will not be
granted for the acquisition of such item, even though the conditions are
met (and bona fide acquisition is granted) for the other items.
12.2.
Good faith acquisition only for value?
Sect. 714.2, 933, 934 and 935 SCC do not make a distinction based upon
whether acquisition was for value or not. However, some authors consider –
contrary to the dominant opinion315 – that a gift contract for goods that do
not belong to the donator is invalid, thus hampering the bona fide acquisition of a movable, which would be given by the alienor.316
Protection of the bona fide acquirer is based – at least in part – on the
publicity principle:317 possession renders public rights in rem over movables;
the person relying in good faith on this means of publicity, on this apparent existence of a right, must be protected (whether the acquisition is for
value or not being irrelevant).318 In addition, protection of the bona fide
acquirer can be explained, inter alia, by the need to protect the security of
transactions.319
The protection of the gratuitous bona fide acquisition is not compensated by a claim for unjustified enrichment against the bona fide acquirer:
his enrichment would not be considered “unjustified”, as it is based on the
law (Sect. 714.2, 933, 934 and 935 SCC). Claims of the former owner
against the alienor (based for instance on the liability of the alienor as an
illegitimate possessor320) are reserved.
314
315
316
317
318
319
320
Cf. Steinauer, no. 467; Rey, no. 2116c.
See for instance: Steinauer, no. 441; Stark, no. 33 ad Vorbemerkungen Rechtsschutz
Art. 930-937.
See for instance: Thévenoz, Trusts, p. 265; Foëx, The Hague Trust Convention,
p. 33.
See supra, 1.1.2.
See for instance: Steinauer, no. 418; Stark, no. 34 ad Vorbemerkungen Rechtsschutz
Art. 930-937. For a critical view, see for instance: Guisan, p. 69.
See Steinauer, no. 419.
Sect. 938-940 SCC.
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12.3.
221
Possession of the transferor
12.3.1. In general
Possession by the transferor is required for the protection of the bona fide
acquirer of a movable that has been entrusted to the transferor (Sect. 714.2
and 933 SCC).321
12.3.2. Dogmatic background
The alienor, being possessor, has the appearance of a right to possess the
movable; the person relying in good faith on this apparent existence of
such a right is to be protected. Even more so in the case of movables that
have been entrusted to the transferor, the (former) owner of the movable
bears a responsibility in this appearance, since he entrusted the movable
to the transferor.
In the case of movables that have been lost, stolen or whose possessor
has been dispossessed against his will (Sect. 934 SCC), and in the case
of money and negotiable instruments to the bearer (Sect. 935 SCC), the
protection of the bona fide acquirer rests more on the need to protect the
security of transactions.
In the case of Sect. 933 SCC, the transferor must be in possession of a
movable that has been entrusted to him, i.e. its possession must have been
transferred to the transferor by the owner (or by the person to whom the
owner entrusted the movable).322
12.4.
Possession by the acquirer
Transfer of possession to the acquirer is necessary, in compliance with the
publicity principle.323
321
322
323
Steinauer, no. 431; Stark, no. 24 and no. 36 ad Sect. 933 SCC.
See Steinauer, no. 425 et seq.; Stark, no. 24 et seq. ad Sect. 933 SCC.
See supra, 1.1.2.
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In principle, all forms of transfer of possession324 can be used by the parties.325 However, the form chosen by parties may have an influence on the
good faith of the acquirer.326 For example, if the parties resort to a delegation of possession,327 the acquirer will be deemed to be in good faith only if
such transfer of indirect possession did not prevent him from being aware
of circumstances that would have destroyed his good faith;328 the same
principle will apply if possession is transferred to the acquirer by means of
a constitutum possessorium:329 the acquirer will not be allowed to take advantage of the fact that, since the movable was not delivered to him, some
circumstances or peculiarities of the movable, which would have hampered
his good faith, did not come to his attention.330
12.5.
Specific requirements concerning the circumstances
of the transfer
12.5.1. In general
Swiss law does not subject the protection of the bona fide acquirer to such
specific requirements. The circumstances of the transfer are taken into account in weighing the acquirer’s good faith.331 They also play a role in the
application of Sect. 934.2 SCC, i.e. when ascertaining whether the bona fide
acquirer is entitled to reimbursement of the price he paid when the (stolen,
etc.) movable he acquired is reclaimed from him by its owner (the relevant
time period provided in Sect. 934 SCC having not elapsed yet).332
12.5.2. Public auction
Acquisition in a public auction plays a role in the application of Sect.
934.2 SCC.333
324
325
326
327
328
329
330
331
332
333
See supra, 2.3.2. and 5.4.
Steinauer, no. 443; Stark, no. 81 et seq. ad Sect. 933 SCC.
See Steinauer, no. 443a; Stark, no. 81 ad Sect. 933 SCC.
On this form of transfer of possession, see supra, 2.3.2. and 5.4.10.
See for instance Stark, no. 87 ad Sect. 933 SCC; Steinauer, no. 443a; Guisan, p. 78.
On this form of transfer of possession, see supra, 2.3.2. and 5.4.9.
See Stark, no. 85 ad Sect. 933 SCC; Guisan, p. 74.
Infra, 12.7.
Infra, 12.9.
Infra, 12.9.
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12.6.
223
Requirements regarding the way the original
jowner “lost” the movable
12.6.1. Entrustment
Entrustment of the movable to the transferor is a requirement of Sect. 933
SCC, not of Sect. 934 and 935 SCC.334
12.6.2. Null and void contract
If the owner sells a movable to an acquirer and if this contract is null and
void, the movable is deemed to be entrusted to such “acquirer”.335 Therefore
if such “acquirer” in his turn transfers (sells, etc.) the movable to a third
party, the latter acquires property of the movable if he is in good faith (Sect.
933 SCC).
However, if the owner of the movable does not have the capacity to
consent, then not only is the sales contract with the acquirer null and void
(Sect. 18 SCC), but the movable will not be deemed to be entrusted to the
“acquirer”;336 in this case, a good faith acquisition by a third party is possible
only if the requirements of Sect. 934 (or 935) SCC are met.
12.7.
Good faith
12.7.1. Object and standard of good faith
The bona fide acquirer is protected if he believes that the transferor is the
owner of the movable or has the right to dispose of it.337 Actual knowledge
that the transferor is neither the owner of the movable nor entitled to transfer the latter is tantamount to bad faith; an acquirer with such knowledge
is therefore not protected.
In addition, according to Sect. 3.2 SCC, a bona fide person who has
failed to show the diligence required by the circumstances cannot invoke
his good faith. For example, the acquirer of a used car sold at a remarkably
low price, who ignores that the car is stolen, is technically in good faith
(since he does not have positive knowledge of the fact the car is stolen);
334
335
336
337
See supra, 12.1 and 12.3.
Steinauer, no. 430; Stark, no. 24 ad Sect. 933 SCC.
Stark, no. 28 ad Sect. 933 SCC.
Steinauer, no. 432; Stark, no. 55 et seq. ad Sect. 933 SCC.
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however, he will be prevented from invoking his good faith (and therefore
will not benefit from a bona fide acquisition) if it can be established he did
not show the diligence required by the circumstances (the low price should
have driven him to request satisfactory explanations from the seller or to
abstain from purchasing the price). According to the Swiss Federal Tribunal, acquirers must be particularly circumspect when acquiring secondhand items, especially used cars and antiquities.338
12.7.2. Time when good faith is required
Good faith must exist at the moment of the acquisition, that is in principle
at the moment possession is being transferred to the acquirer.339 In case the
bona fide acquisition is based on Sect. 934 SCC (stolen movables, etc.),
the acquirer must in addition remain in good faith until the relevant time
period (five years since the dispossession for “ordinary” movables, 30 years
in the case of cultural property) has lapsed.340
12.7.3. Burden of proof
According to Sect. 3.1 SCC, good faith is presumed, where the law provides
that the existence or the effect of a right depends on such good faith. The
bona fide acquirer can invoke such (rebuttable) presumption.
12.8.
Lost and stolen movables
As stated above,341 the bona fide acquirer of a movable that was stolen or
lost (or whose possessor was otherwise dispossessed against his will) is protected if a certain period of time (30 years for cultural property, five years for
other movables [except for money and negotiable instruments to the bearer,
which are governed by Sect. 935 SCC])342 has elapsed since the theft, loss
or other dispossession (Sect. 714.2 and 934 SCC).
338
339
340
341
342
See for instance ATF 131 III 418/422. See also Steinauer, no. 434 and the citations.
Stark, no. 79 ad Sect. 933 SCC see also: Steinauer, no. 432.
Steinauer, no. 2071a; Stark, no. 29 ad Sect. 934 SCC.
Supra, 12.1.
See supra, 12.1.
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There are no specific legal definitions of stolen or lost movables. It is
usually accepted that a movable that has not been entrusted, within the
meaning of Sect. 933 SCC, is subject to Sect. 934 SCC.343
12.9.
Right to buy back
Swiss law does not provide a right of the original owner to buy back the
movable from the good faith acquirer. Conversely, the bona fide acquirer
is not entitled to require from the original owner that he buys back the
movable from him.
On the other hand, it should be noted that Sect. 934.2 SCC provides
that when the former possessor successfully reclaims a movable that has
been stolen or lost, or of which he has been otherwise dispossessed, the
bona fide acquirer (who must return the movable, the time periods provided
by Sect. 934.1 and 934.1bis SCC not having lapsed) is entitled to claim
reimbursement of the price he paid, provided he purchased the movable
on a market from a merchant dealing movables of the same kind, or at a
public auction.
12.10. Good faith acquisition free of encumbrances
In the case of a bona fide acquisition, rights in rem (pledge, usufruct, etc.)
which encumbered the movable extinguish if the acquirer ignores their
existence in good faith.344 It should be noted however that the acquirer will
normally not ignore in good faith the existence of such rights: the movable
will in principle be in direct possession345 of the holder of such rights in rem,
who will therefore be in a position to draw the attention of the acquirer to
the fact that the movable is encumbered. If possession is transferred to the
acquirer by delegation of possession,346 Sect. 924.3 SCC provides that the
direct possessor may enforce his right in rem against the person to whom
possession is transferred by means of a delegation possession; and this is true
even if the acquirer is in good faith.347
343
344
345
346
347
See Steinauer, no. 462; Stark, no. 2 ad Sect. 934 SCC.
See Steinauer, no. 449; Stark, no. 63a and 89 ad Sect. 933 SCC.
Supra, 2.1.4.
Supra, 2.3.2 and 5.4.10.
See for instance: Stark, no. 89 ad Sect. 933 SCC and no. 41 ad Sect. 924 SCC.
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12.11. Same rules if the good faith acquirer is a consumer?
The foregoing also applies if the good faith acquirer is a consumer.
13.
“Acquisitive” prescription of movables
Acquisitive prescription (adverse possession) is governed by Sect. 661-663
SCC in the case of immovables, and by Sect. 728 SCC in the case of
movables; these provisions are completed by Sect. 941 SCC, which allows
the possessor fulfilling the requirements of adverse possession to add to his
own possession period that of his predecessor, if the latter’s was also fulfilling such requirements.
13.1.
Functions of acquisitive prescription
It is usually accepted that acquisitive prescription is justified by the need
to protect the security of transactions348 as well as legal certainty.349 This
institution is not criticized by leading authors.
13.2.
Requirements of acquisitive prescription
13.2.1. Movables concerned
Sect. 728 SCC governs acquisitive prescription of most movables, including
negotiable instruments to the bearer or to the order.
Sect. 728 SCC also applies to cultural property, but Sect. 728.1ter SCC
requires the fulfillment of a longer time limit, i.e. 30 years (instead of the
five years required by Sect. 728.1 SCC). In the case of domesticated animals, which are not kept as investment or for commercial purposes, the
time period is two months (Sect. 728.1bis SCC).
Sect. 728 SCC is also applicable to stolen movables, when the requirements of Sect. 934 and 714.2 SCC are not met (i.e.: a stolen item is transferred to a bona fide acquirer under an invalid sales contract; the acquirer
does not become the owner under Sect. 934 SCC for lack of a causa;350
348
349
350
See for instance Steinauer, no. 1577.
Laim, no. 5 ad Sect. 661-663 SCC.
Steinauer, no. 2071a. See however Stark, no, 34a ad Sect. 934 (who holds the view
that acquisition under Sect. 934 SCC does not require a valid causa).
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however, if [and when] such acquisition meets the requirements of Sect.
728 SCC, the acquirer will acquire ownership of the stolen movable).
On the other hand, Sect. 728 SCC does not apply to movables not governed by private law, or to aircrafts and ships registered in ad hoc registries, or
to energy.351 In addition, Sect. 724 provides that ownerless natural curiosities
and antiquities of scientific interest become the property of the Canton where
the immovable, in which they are found, is located and that they cannot
be acquired by adverse possession or in good faith.
Lastly, it should be noted that as long as the action for recovery of inheritance (Sect. 598 SCC) is not time-barred, the acquisition by prescription
of movables belonging to the estate is not opposable against the heirs.
13.2.2. Acquirer’s possession
The acquirer must possess the movable with the intent to possess it as
its owner (Sect. 728.1 SCC). The law does not require that he be the
sole possessor: he may be the indirect possessor, provided his possession is
originary.352 It is usually accepted that a (rebuttable) presumption of the
intent to possess as the owner can be derived from Sect. 930.1 SCC (which
provides that the possessor of a movable is presumed to be its owner).353
In addition, the origin of the possession must be peaceful: the acquirer
by prescription must have acquired his possession neither by violence, nor
secretly, nor under equivocal circumstances. Moreover, his possession must
remain unchallenged and uninterrupted (Sect. 728.1 SCC). Sect. 728.2
SCC provides that the involuntary loss of possession does not interrupt the
prescription if the possessor repossesses the movable within one year (or by
means of a legal action brought within one year).
13.2.3. Title
Per definition under Swiss law, no title is required in order to acquire ownership by prescription. Typically, the acquirer will invoke Sect. 728 SCC precisely if he has no title, for instance because it is discovered that the contract
that was to convey ownership to him is invalid. This being said, Sect. 728
SCC does not even require a “putative” title:354 for instance, a heir who ignores that a movable found in the estate of the deceased does not belong to
351
352
353
Steinauer, no. 2111a; Zobl, no. 20 ad Sect. 728 SCC; Rey, no. 1990 et seq.
Steinauer, no. 2111b; Rey, no. 2000.
See Steinauer, no. 2111b; Schwander, no. 4 ad Sect. 728 SCC.
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him may acquire ownership by prescription;355 this would also be the case for
a person who believes to acquire an ownerless movable by means of occupation (Sect. 718 SCC),356 where in fact the movable has an owner.357
354
Sect. 728.1 SCC requires that the person acquiring ownership of a movable by prescription be in good faith. Such good faith must exist not only
at the time possession is acquired, but also during the entire duration of
the prescription period.
To be in good faith, the acquirer must excusably ignore the legal reasons
or factual circumstances that prevent him from being the owner.358 The
acquirer must believe that he is the owner of the movable and that he does
not infringe on the rights of another person.359 It has been ruled that when
the circumstances are difficult to assess, the acquirer whose assessment is
incorrect is still in good faith, if his view is arguably plausible.360
According to Sect. 3.1 SCC, good faith is presumed where the law provides that the existence or the effect of a right depends on such good faith.
The acquirer by prescription can invoke such (rebuttable) presumption.
However, Sect. 3.2 SCC provides that a bona fide person who has failed to
show the diligence required by the circumstances cannot invoke his good
faith; such would for instance be the case of an acquirer who does not clarify
the situation when the movable is being reclaimed by a third party during
the time period of the prescription.361
13.2.5. Prescription periods
The prescription period according Sect. 728.1 SCC is five years. The period
is 30 years if the movable is a piece of cultural property (Sect. 728.1ter SCC)
354
355
356
357
358
359
360
361
Steinauer, no. 2111b, who remarks that the presence of such a “putative” title helps
the acquirer in proving he is in good faith and possesses the movable as its owner;
see also Rey, no. 1981; Liver, p. 391.
Zobl, no. 6 ad Sect. 728 SCC; Rey, no. 1988.
See below, 14.
Zobl, no. 7 ad Sect. 728 SCC; Liver, p. 390.
Steinauer, no. 2111d; Zobl, no. 36 et seq. ad Sect. 728 SCC.
Schwander, no. 7 ad Sect. 728 SCC.
ATF 94 II 297; see also Steinauer, no. 2111d.
See also Steinauer, no. 2111d.
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and two months in the case of domesticated animals, which are not kept as
investment or for commercial purposes (Sect. 728.1bis SCC).
Sect. 941 SCC enables the possessor fulfilling the requirements of adverse possession to add to his own possession period that of his predecessor,
if the latter was also fulfilling such requirements. In addition, Sect. 728.3
SCC provides that the computation, interruption and suspension of the
time periods are governed by the provisions on time limitations of claims;
specifically, Sect. 132 and 134-139 SCO are applicable.362 In other words,
the prescription period does not start to run (or is suspended), if the acquirer and the owner are tied by a particular personal relationship363 or as
long as it is impossible to bring the case in front of a Swiss court.364 Moreover, the prescription period is interrupted if the acquirer acknowledges the
owner as such or if the owner initiates proceedings against the acquirer in
order to regain the movable;365 involuntary loss of possession for a period
exceeding one year366 and loss of good faith367 also interrupt the prescription period. When the cause of such an interruption ceases to exist, a new
prescription period runs anew.368
13.2.6. Consequences
When the requirements of Sect. 728 SCC are fulfilled, the acquirer becomes the owner of the movable. The former owner loses his ownership,
and the other rights in rem that encumbered the movable are extinguished
if the acquirer ignored in good faith their existence.369
362
363
364
365
366
367
368
369
Steinauer, no. 2111f; Zobl, no. 47 et seq. ad Sect. 728 SCC.
Such as the relationship existing between spouses, between a parent and a child,
between an employer and an employee, etc. Sect. 134 SCO and Sect. 728.3 SCC.
See Zobl, no. 47 et seq. ad Sect. 728 SCC; Rey, no. 2011.
Sect. 134.1.5 SCO and Sect. 728.3 SCC. See Zobl, no. 47 ad Sect. 728 SCC.
Sect. 135 SCO and Sect. 728.3 SCC. See Zobl, no. 52 et seq. ad Sect. 728 SCC; Rey,
no. 2009.
Sect. 728.2 SCC (which provides that an involuntary loss of possession does not
interrupt the prescription period, provided the acquirer repossesses the movable [or
brings legal action to regain it] within one year); see Zobl, no. 51 ad Sect. 728 SCC;
Rey, no. 2008.
Zobl, no. 55 ad Sect. 728 SCC.
Sect. 137.1 SCO and Sect. 728.3 SCC. Zobl, no. 56 ad Sect. 728 SCC; Rey,
no. 2010.
Steinauer, no. 2112; Zobl, no. 62 et seq. ad Sect. 728 SCC.
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230
The owner who loses ownership due to adverse possession by a third
party is not entitled to claim compensation for tort or for unjustified enrichment.370
13.3.
Prescription of ownership
The right of ownership is not subject to extinctive prescription under Swiss
law. There are a few exceptions to that rule. For instance, the duration of
the right to built servitude is in principle limited to 100 years (Sect. 779l
SCC); the beneficiary of such a servitude is the owner of the building built
in compliance with his servitude (Sect. 779 and 675 SCC), but such ownership is limited to 100 years.
More generally, it can be considered that the duration of ownership is
(potentially) limited when a third party is in the course of acquiring such
ownership by virtue of the accomplishment of a time period (acquisition
by prescription [Sect. 728, 661 and 662 SCC],371 bona fide acquisition of a
stolen movable [Sect. 934 SCC],372 or acquisition of a lost movable by its
finder [Sect. 722 SCC]).373
14.
Other forms of originary acquisition
In addition to accession, commixture, confusion, specification, bona fide
acquisition and adverse possession, Swiss law recognizes the following forms
of originary acquisition:
– occupation (Sect. 718 SCC), where ownership of an ownerless movable
(other than a movable falling under the provisos of Sect. 723 and 724
SCC) is acquired by direct possession with the intent of becoming its
owner;
– acquisition by the finder (Sect. 720-722 SCC), where the finder of a movable that has been lost becomes its owner five years after finding it
(Sect. 722.1 SCC) – or two months after finding it in the case of an
animal kept as a pet and not as an investment or for commercial purposes (Sect. 722.1bis SCC) – and provided he has complied with his
370
371
372
373
Steinauer, no. 2112; Schwander, no. 12 ad Sect. 728 SCC. Both authors seem to
accept that some exceptions may apply, citing Huwiler, p. 99 et seq. See furthermore
Rey, no. 2015 et seq.
See above, 13.
See above, 12.1.3.
See below, 14.
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14. Other forms of originary acquisition
–
–
–
–
–
–
374
231
duties as finder (Sect. 720-721), and that the owner has not been found
during the relevant time period;374
treasure trove (Sect. 723 SCC), where a precious movable (other than
the movables falling under the proviso of Sect. 724 SCC) is found and it
seems certain – at the time of discovery – that such movable is ownerless
and has been hidden or buried for a long time, the movable becoming
the property of the owner of the movable, or the immovable, in which
it is found (the third party finder, if any, being entitled to a reward not
exceeding half of the movable’s value);
acquisition of movables presenting a scientific interest (Sect. 724 SCC),
where ownerless natural curiosities and antiquities of scientific interest
become the property of the Canton where the immovable in which they
are found is located, the finder – as well as the owner of the immovable,
if the object found is a precious movable within the meaning of Sect.
723.1 SCC – being entitled to a reward not exceeding the value of the
movable of scientific interest;
acquisition by the effect of a judicial decision (Sect. 665.1 CC per analogiam), where for instance the owner refuses to comply with his obligations resulting form a sales contract and the judge awards the ownership
to the buyer;
expropriation of property;
acquisition of ownership through forced sale at the conclusion of debt
collection proceedings;
acquisition of a swarm of bees by the owner of a beehive, if such swarm flies
into his beehive already occupied by other bees (Sect. 725.2 SCC).
According to Sect. 725.1 SCC, Sect. 720-722 SCC also apply to movables that are
brought by water, wind, an avalanche, by another natural force or fortuitously into
the control of a third party, as well as to animals straying on his property.
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Part IV:
15.
Which are the rules on reservation of title?
15.1.
Requirements
Reservation of title is governed by Sect. 715 SCC. Transferor and transferee
may agree on a reservation of title, unless the object to be transferred is an
immovable (Sect. 217.2 SCO), a head of livestock (Sect. 715.2 SCC), a
registered aircraft or a registered ship.375 It is usually admitted – although
not universally376 – that the parties may agree on a reservation of title only
in relation to a contract whose aim is to transfer ownership against consideration (sales contract, barter contract, work contract, but not a donation
contract, for instance).377
Unless it is inserted into a sales contract involving consumer credit,378
the reservation of title agreement is not subject to a form requirement.
However, according to Sect. 715.1 SCC, a reservation of title is effective
only if it has been registered with the ad hoc register kept by the debt collection office of the present domicile of the transferee.
15.2.
Effects
The effect of registration is that ownership of the movable will remain
with the transferor until the transferee has complied with his obligations
(payment of the sales price, etc.);379 until then, the transferor does not
acquire ownership and, if possession has been transferred to him, the mov-
375
376
377
378
379
See Foëx, Les nouvelles fonctions, p. 463.
See Steinauer, no. 2033. See also Rey, no. 1737.
Sect. 9 et seq. of the Federal Law on consumer credit, of March 23, 2001 (SCFL no.
221.214.1). The agreement must in this case be in writing.
Steinauer, no. 2046. For some authors, however, the reservation of title does not
prevent the passing of ownership to the transferee: according to their views, the
transferee acquires conditional ownership, which returns to the transferor if the
transferee does not comply with his obligations (see for instance Liver, p. 341).
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15. Which are the rules on reservation of title?
233
able is deemed to be entrusted to him380 within the meaning of Sect. 933
SCC.381
Third parties are not deemed to have knowledge of a reservation of title
duly registered. In other words, a reservation of title duly registered does not
prevent a third party from being bona fide and from acquiring ownership
by virtue of Sect. 714.2 and 933 SCC, if the acquirer under title reservation transfers the movable to him;382 however, the Swiss Federal Tribunal
has held that professional used car dealers must search the registry before
buying a used car, lest they be prevented from invoking their good faith
(for want of showing the diligence required by the circumstances; Sect.
3.2 SCC).383
If no registration is effected and possession is transferred to the alienee,
the latter becomes the owner of the movable notwithstanding the reservation of title;384 if the reservation of title is registered at a later stage, ownership is retransferred to the transferor, although without retroactive effect
(i.e.: ex nunc).385
15.3.
Default of the transferee
If the transferee does not comply with his obligations, the transferor, whose
retention of title has been duly registered, may either avoid the contract
(Sect. 107 SCO) and claim recovery of the movable (being his property,
Sect. 641.2 SCC),386 as well as compensation for the related damage (while
reimbursing the amount paid by the transferee, as the case may be), or he
may initiate debt collection proceedings to obtainment payment of the
contractual amount still owed to him, as well as the related damage. If he
chooses this second option, the transferor will in principle be deemed to
renounce the title retention.387
380
381
382
383
384
385
386
387
See supra, 12.1.
Steinauer, no. 2047 and no. 2044; Schwander, no. 6 ad Sect. 715 SCC; Rey,
no. 1746a.
ATF 113 II 397 / 400.
Steinauer, no. 2041; Schmid / Hürlimann-Kaup, no. 1108; Rey, no 1746a.
See supra, 1.4.1.
Steinauer, no. 2051, who criticizes this solution.
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15.4.
Title reservation and debt collection proceedings
If the movable transferred under a duly registered reservation of title is
seized by the acquirer’s creditors in the course of debt collection proceedings, the transferor will in principle be deemed to have a security interest in
the movable, which will therefore be realized to reimburse him, any surplus
being allotted to the acquirer’s other creditors.388 If such acquirer under duly
registered reservation of title files bankruptcy, the creditors will be entitled
to enter the contract between the transferor and the transferee(Sect. 211.2
SDCB), in which case the transferor is paid and the movable becomes part
of the bankruptcy estate; if the creditors do not enter the contract, the
transferor is allowed to opt between reclaiming the movable (and reimbursing the amount he may have received from the transferee) or abandoning
the property and filing in the bankruptcy proceedings his claim for the
amount still due to him.389
If the transferor files for bankruptcy, the creditors may exercise the rights
of the transferor deriving from the reservation of title agreement and from
the movable’s ownership.
15.5.
Extension of the reservation of title
As pointed out above,390 specification, accession, commixture and confusion render ineffective a reservation of title concerning the object that
ceases to exist as such, as a consequence of such specification, commixture
or accession. Leading authors dispute this conclusion as far as commixture
and confusion are concerned;391 however, they fail to explain how the reservation of title can extend by subrogation to the share in the joint ownership
(or to the new object) resulting from such commixture or confusion.392
Reservation of title agreements secure the payment of the compensation for the movable;393 they cannot be extended to cover other claims of
the transferor or to cover the proceeds of a resale by the transferee.394
388
389
390
391
392
393
394
Steinauer, no. 2056 et seq.; Schmid / Hürlimann-Kaup, no. 1117.
Steinauer, no. 2051a.
See supra, 11.4.2.
See supra, 11.4.2.
See Foëx, Les nouvelles fonctions, p. 467.
ATF 102 III 150.
ATF 102 III 150; Steinauer, no. 2027. Contra: Rey, no. 1758.
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16. Abandonment and further ways to lose ownership
16.
Abandonment and further ways to lose ownership
16.1.
Abandonment
235
Under Swiss law, the owner of a movable may relinquish his ownership: it
suffices that he abandon his possession of the movable with the intent to
renounce his ownership (Sect. 729 SCC). Such abandonment of ownership
requires legal capacity of the relinquisher.395 It does not affect the rights in
rem and the personal rights encumbering the movable.396
16.2.
Further ways to lose ownership
The following alternative ways to lose ownership may be mentioned (apart
from the cases where ownership is lost as a result of ownership acquisition
by a third party):397
– destruction of the movable;
– consumption of the movable;
– loss of ownership of a captured animal, if the animal escapes and the
owner does not make immediate and continuous searches to recapture
it (Sect. 719.1 SCC);
– loss of ownership of a tame animal, when the animal returns to its untamed state (Sect. 719.2 SCC).
17.
“Co-ownership”
17.1.
Forms of co-ownership
Swiss law recognizes two forms of co-ownership:
– co-ownership (stricto sensu) (Sect. 646-651a SCC), where each co-owner
is the beneficiary of a share in the (movable or immovable) property,
which he can alienate or give as security (by pledging the share or
hypothecating it as the case may be) and which can be seized by his
creditors (Sect. 646.3 SCC);
– co-ownership of a multiple-unit land property (Sect. 712a-712t SCC),
where each co-owner is the beneficiary of a share in the (immovable)
property, which he can dispose of individually, and to which the exclu-
395
396
397
Steinauer, no. 2132a; Rey, no. 2026.
See Steinauer, no. 2132b. See also Zobl, no. 19 et seq. ad Sect. 729 SCC.
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sive right to use and to equip a unit (apartment or commercial premises)
in the building is attached (Sect. 712a.1 SCC).
Swiss law recognizes a third form of property owned simultaneously by
more than one person: common ownership (Sect. 652-654a SCC), where
the owners in common are bound by a pre-existing community (based on
contract or on a legal provision; Sect. 652 SCC) and where the rights
regarding the (movable or immovable) property can only be exercised by
common decision (save where otherwise provided by the rules governing
their community; Sect. 653.2 SCC).
17.2.
Transfer of co-ownership (stricto sensu)
Each co-owner can alienate his share individually (Sect. 646.3 SCC);
however, in the case of co-ownership of an immovable, the other coowners have a pre-emption right against the alienee, if he (the alienee)
is not already himself a co-owner of the immovable at stake (Sect. 682.1
SCC).
If the co-owners intend to alienate the actual movable or immovable
that they hold in co-ownership, a unanimous decision is required (unless
they have unanimously agreed otherwise; Sect. 648.2 SCC).
17.3.
Separation and termination
Sections 650-651a SCC govern the termination of co-ownership. As
pointed out above,398 each co-owner can request the termination of the
co-ownership, unless the co-owners have previously agreed not to do so (for
a maximum period of 30 years) or if the movable in co-ownership is dedicated to a long-standing purpose (or if the co-ownership is a co-ownership
of a multiple-unit land property) (Sect. 650.1 and 650.2 SCC). Sect. 650.3
SCC adds that termination of co-ownership cannot be requested at an
inappropriate time. If the parties cannot agree, each co-owner can request
the judge to terminate the co-ownership.
According to Sect. 651.1 SCC, dissolution of co-ownership takes place
either by dividing in kind, by dividing the proceeds of the movable’s sale
(by private sale or by auction), or by letting one or more co-owners buy out
the other co-owners. Sect. 651.1 SCC provides that if the co-owners cannot agree on the way to dissolve the co-ownership, the judge should order
a dividing in kind, unless such dividing in kind would diminish notably
398
See supra, 11.4.1.
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18. Particular issues as to unspecified goods
237
the value of the movable (in which case he should order the sale by auction, open either only to the co-owners or to the public). However, if the
co-ownership of a domesticated animal (which is not kept as investment
or for commercial purposes) is at stake, the judge should award individual
ownership of the animal to the co-owner who represents the best solution for the animal from the point of view of the protection of the animal
(Sect. 651a.1 SCC).
18.
Particular issues as to unspecified goods
18.1.
Transfer of shares in an identified bulk
There are no specific provisions in Swiss law governing the transfer of
shares deposited in bulk. A draft law on intermediated securities is pending
in front of the Swiss parliament, together with the proposal to ratify the
Hague Convention on the law applicable to certain rights in respect of securities
held with an intermediary.399
In the meantime, the legal regimen applicable to the ownership of
shares deposited in bulk results from the application per analogiam of Sect.
727 SCC and 484 SCO, as well as from the various agreements between
the interested parties.
In short, the shares of a “same kind”, which are deposited in bulk, are
deemed to be in co-ownership of the shareholders – each shareholder having a share in the ownership corresponding (in proportion) to the number
of shares he holds. This co-ownership differs from the co-ownership of Sect.
646 et seq. SCC (which are otherwise applicable). Since the shareholders do
not really form a community and since each co-owner can depart from the
co-ownership by requesting at any time that a number of shares corresponding to his share in the bulk be handed over to him (without terminating
and dissolving the co-ownership; Sect. 484.2 SCO).400
The transfer of shares thus deposited in bulk is subject to the ordinary
rules governing the transfer of a share in a co-ownership: in addition to
the underlying causa, a real agreement and the transfer of possession are
necessary. Typically, the bank will buy the shares sold by its client (possession being transferred by brevi manu traditio);401 the bank will then sell the
shares to a third party acquirer (possession being transferred by constitutum
399
400
401
FF 2006 p. 8817 et seq.
See for instance: Zobl, no. 94a et seq. ad Sect. 727 SCC; Foëx, Transfert et engagement, p. 58 et seq.
See supra, 2.3.2. and 5.4.8.
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possessorium402 if the acquirer is a client of the bank and by delegation of possession403 if this is not the case).404
18.2.
Floating charge
Swiss property law is governed by a numerus clausus,405 which does not
include floating charges. Consequently, a floating charge cannot be validly
created under Swiss substantive law.
On the other hand, it is possible to create a pledge on goods deposited in
a warehouse (or securities deposited in a bank account), provided the pledgee
retains exclusive control over the warehouse (on the account). This does not
prevent the parties from agreeing that the pledgor will be granted access to
the warehouse (to the account) and will be allowed to remove goods (securities) (which will no longer be subject to the pledge) and to replace them with
other goods (securities) (which will be pledged henceforth).406
19.
Consequences of restitution of the movable
to the owner
Sections 938-940 SCC govern the rights and liability of the illegitimate
possessor;407 the regimen differs whether the illegitimate possessor is in good
faith (Sect. 938 and 939 SCC) or in bad faith (Sect. 940 SCC), with the
proviso that both regimens may apply successively, for instance if the bona
fide possessor learns that he has no right to possess the (movable or immovable) property (mala fides superveniens nocet).408
Sections 938-940 SCC are applicable when restitution takes place,
based on Sect. 641.2, 927, 934 or 936 SCC,409 or when the law otherwise
declares them applicable.410 They do not govern the situations where the
possessor was the holder of a right in rem or of a personal right that ceased
402
403
404
405
406
407
408
409
410
See supra, 2.3.2. and 5.4.9.
See supra, 2.3.2. and 5.4.10.
See for instance Foëx, Transfert et engagement, p. 62 et seq.
See supra, 1.1.2.
See for instance: Zobl, Das Fahrnispfand, no. 393 et seq. ad Sect. 884 SCC; Bauer,
no. 35 ad Sect. 884 SCC.
On the notion of illegitimate possession, see above, 2.1.4.
See Steinauer, no. 501; Stark, Vorbemerkungen Verantwortlichkeit, no. 7.
Steinauer, no. 497; Schmid / Hürlimann-Kaup, no. 340. See for instance Sect. 560.3
SCC.
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239
to exist: restitution is then governed by specific rules concerning the (real
or personal) right at stake411 or by the general rules of the SCO.
Sections 938-940 SCC would govern most of the situations envisioned by the section of the questionnaire provided by the editors that
specifically deals with the issues of the consequences of restitution of
the movable to the owner. For instance, restitution by a person who has
stolen or found a movable412 would typically fall under Sect. 940 SCC;
whereas restitution by a transferee, where the underlying contract is null
and void, or by the acquirer of a stolen movable, would fall under Sect.
938-939 or 940 SCC depending on whether the possessor can be considered in good faith or not. The same can be said of the restitution of
a movable acquired from a non-owner or of the restitution of a movable
in case of a right to use granted by a non-owner (provided there were no
bona fide acquisition).
When Sect. 938-940 SCC are applicable, they take precedence over
the rules governing liability for unlawful acts (Sect. 41 et seq. SCO), the
rules concerning unjustified enrichment (Sect. 62 et seq. SCO), as well as
over the rules governing the conduct of business without mandate (Sect.
419 et seq. SCO).413
19.1.
Entitlement to benefits (“fruits”) of the movable
Sect. 938.1 SCC provides that the illegitimate possessor, who has exercised
the right he presumed in good faith he was the beneficiary of (“putative
right”), is not liable to the person to whom he must return the movable.
The bona fide illegitimate possessor is therefore not liable for the (civil and
natural) fruits he collected (if such collection was covered by the right he
thought to be the holder of).
On the other hand, Sect. 940 SCC provides that the illegitimate possessor in bad faith must compensate the owner for all damage resulting from
his undue possession, including the (natural and civil) fruits he collected or
neglected to collect. The liability of the mala fide is therefore not limited to
fruits he collected, but extends to (natural and civil) fruits he could have
collected414 had he acted reasonably. It should be added, however, that
Sect. 940.3 SCC provides that the possessor is liable only for the damage
411
412
413
414
See Steinauer, no. 2094a. See however Liver, p. 355.
Stark, no. 22 ad Sect. 940.
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for which he is at fault as long as he does not know to whom he should
return the movable.
The question whether the owner needs to reimburse the possessor for the
fructification expenses (seeds, raw materials, etc.) will be dealt with below.415
19.1.2. Restitution after the right to use the movable has ended
In a situation where the right to use the movable included the right to collect
the benefits from the movable,416 then benefits are not to be returned upon
termination of this right. The owner would however be entitled to compensation for the benefits collected by the possessor in bad faith after the contract
or the right in rem has expired, on the basis of Sect. 423.3 SCO.
A provision of an usufructuary lease, whereby the usufructuary lessee
undertakes in advance to pay an indemnity for the benefits resulting from
the movable during the period of validity of the lease, would be null and
void.417
By contrast, in a situation where the right to use the movable did not include the right to perceive the benefits from the movable,418 then the benefits
are to be returned to the owner together with the movable upon termination
of this right. While no Swiss court decision dealing with this specific issue
can be found, we are of the opinion that, in such a case, the person having
collected the benefits form the movable would be deemed to have conducted
the owner’s business without mandate within the meaning of Sect. 419 et seq.
SCO. As a consequence, in spite of the fact that the conduct of the business
was not in the principal’s interest, the latter may nevertheless appropriate for
himself the benefits resulting from the other person’s acts.419
or terminated
In case the contract is void or avoided ex tunc (with retroactive effect), then
the general rules dealing with restitution of the movable to the legitimate
owner (Restitution under Sect. 938-940 SCC) apply.
415
416
417
418
419
Infra, 19.3.1.
For example where this right is a usufruct (Sect. 756 SCC) or a usufructuary lease
(Sect. 275 SCO).
Sect. 299.4 SCO.
For example where this right is a pledge over the movable, or an ordinary lease
agreement.
Sect. 423.1 SCO. See however Sect. 890 SCC in the case of a pledge.
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If the contract is terminated because of the debtor’s default, or because
the movable is defective, then the transferor may reclaim the movable delivered on the basis of the contract.420 In that case, however, the transferor’s
claim is of contractual nature only (i.e. in spite of the contract termination,
the transferee is still the owner of the movable, but he has a contractual
duty to return it to the transferor).421
The contractual obligation to return the movable includes a contractual
obligation to return the benefits and fruits resulting from the movable that
were collected by the transferee. This is expressly provided in Sect. 208.1
SCO (termination in case the movable is defective). This rule applies by
analogy to the obligation to return the movable in case of termination of
the contract because of the debtor’s default.422
19.2.
Loss and deterioration of the movable
Section 938.2 SCC provides that the bona fide illegitimate possessor is not
liable for the loss of the movable or for its deterioration. In other words,
the illegitimate possessor will need to compensate such loss or deterioration
if such compensation would be owed according to the rules governing his
putative right.423
It results from Sect. 940.1 SCC that the illegitimate possessor in bad
faith is liable in case of loss or deterioration,424 again with the proviso that
he is only liable for the damage for which he is at fault, as long as he does
not know to whom he should return the movable (Sect. 940.3 SCC).
In a situation where a party was the legitimate possessor of the movable,
on the basis of a contractual right or of a right in rem, then Sect. 938-940
SCC do not apply.
Special provisions of Swiss law would deal with loss and deterioration
of the movable, depending on the nature of this right:
420
421
422
423
424
Sect. 109.1 SCO and Sect. 208 SCO.
ATF 114 II 152.
Thévenoz, no. 12 ad Sect. 109 SCO.
Steinauer, no. 519 et seq.; Stark, no. 5 ad Sect. 940 SCC.
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242
– Usufruct: the owner would be entitled to claim damages on the basis
of Sect. 752 SCC. The beneficiary of the usufruct is however released
from this liability if he proves that the loss or deterioration took place
without any fault on his side. The owner’s claim for compensation is
time barred after one year from restitution of the movable.425
– Pledge: the owner would be entitled to claim damage on the basis of
Sect. 890 SCC. The pledgor is however released from his liability if
he proves that the loss or deterioration took place without any fault
on his side.
– Contract. Damage to a movable belonging to a third party is a tort that
would cause the damaging party to be liable in tort vis-à-vis the owner of
the movable.426 In addition to this general rule, the contractual liability
of the owner may be based on specific provisions, depending on the type
of contract. In the context of a lease agreement, the lessee would assume
a contractual liability on the basis of Sect. 267 SCO, provided however
the lessor has examined the condition of the movable upon return and
immediately notified defects to the lessee.427 If the lessor fails to do so,
he forfeits his claim except with regard to defects not recognizable by
an examination according to customary practice.428
or terminated
owner (restitution under Sect. 938-940 SCC) apply.
the sold movable is defective, then the transferor may reclaim the movable
delivered on the basis of the contract.429 In case of loss due to deterioration,
the situation is as follows:
– Termination in case of defective product. If the product was lost or deteriorated prior to the termination, due to the defect, then the buyer is
only to return the remaining part of the movable.430 If the movable was
destroyed due to the fault of the buyer, termination is not allowed.431
425
426
427
428
429
430
431
Sect. 754 SCC.
Sect. 41 SCO.
Sect. 267a.1 SCO.
Sect. 267a.2 SCO.
Sect. 207.2 SCO.
Sect. 207.3 SCO.
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243
If the movable is lost or deteriorated after termination, but prior to its
restitution, then Seq. 890 SCC (loss or deterioration of pledged property) is to apply by analogy.432
– Termination in case of debtor’s default. The question of whether, under
Swiss law, the party to return the movable is only liable in case of fault
or has to indemnify the other party irrespective of his fault, is disputed.433 In our opinion, the provisions of Seq. 890 SCC (indemnification
only in case of fault) are to be applied by analogy, as was decided by the
Swiss Supreme Court in the context of the obligation to return defective products.
19.3.
Reimbursement for improvements and expenses
According to Sect. 939.1 SCC, the bona fide illegitimate possessor can
claim reimbursement of the “necessary” expenditures and of the “useful”
expenditures he made for the movable he illegitimately possessed. He cannot claim for reimbursement of other expenditures (so called “sumptuary”
expenditures; impensae voluptuariae), but is entitled to remove (ius tollendi)
the items he has attached to the movable, provided such separation can
intervene without damage (and provided the owner does not offer to indemnify him). It should be noted however that Sect. 939.3 SCC provides
that the value of the fruits collected by the possessor (as well as of the other
benefits he derived from the property, such as the use of the car he possessed
illegitimately)434 is to be deducted from what is owed to him on account
of his expenditures.
Expenditures are here defined as expenses voluntarily made in favour
of a movable owned by a third party, such as expenses made to maintain,
repair or preserve the movable.435 They may include the payment of insurance fees or of taxes concerning the movable, of mortgage interests,436 or
of expenses made for the production of natural fruits (seeds) that the possessor could not harvest before he returned the movable. The law does not
specify how to distinguish “necessary”, “useful” and “other” expenditures.
Guidance in this respect is to be found in Sect. 647c, 647d and 647e SCC,
432
433
434
435
436
ATF 109 II 26.
Thévenoz, no. 7 and no. 8 ad Sect. 109 SCO, with references.
Steinauer, no. 511a; Stark, no. 16 ad Sect. 939 SCC.
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244
which define “necessary”, “useful” and “sumptuary” works in the field of
co-ownership.437
Sect. 940.2 SCC provides that the mala fide illegitimate possessor is
entitled to reimbursement only of the necessary expenditures, with the
additional requirement that the owner would also have had to incur such
expense. For example, the mala fide possessor is not entitled to claim for the
reimbursement of the (necessary) reparation of the brakes of a car, if the
intent of the owner was to jettison this vehicle and buy a new one.
Some authors consider that Sect. 939.2 SCC is applicable per analogiam
to “useful” and “sumptuary” expenditures made by the mala fide possessor,438
who would therefore be entitled to a ius tollendi (right of removal), provided
the separation can intervene without damage (and provided the owner does
not offer to indemnify him).
In a situation where a party was the legitimate possessor of the movable,
on the basis of a contractual right or of a right in rem, then Sect. 938-940
SCC do not apply. The right of the legitimate possessor to claim reimbursement or expenses would be based on the rules dealing with the conduct of
business without mandate:
– The conducting of business was done in the interest of the principal (owner).
The principal (owner) is to reimburse the possessor for all expenses that
were necessary or useful and reasonable under the circumstances.439 The
possessor is entitled to such compensation even if the intended result is
not achieved, provided due care was exercised.440 For unnecessary, useless or unreasonable expenses, the possessor is only entitled to remove
the items he has attached to the movable, provided such separation can
intervene without damage (and provided the owner does not offer to
indemnify him).441
– The conducting of business was not done in the interest of the principal (owner). The principal (owner) is only to indemnify the possessor to the
extent that he will benefit from the expenses or improvement made by
the possessor.442
437
438
439
440
441
442
See Steinauer, no. 510; Schmid / Hürlimann-Kaup, no. 353.
Steinauer, no. 522a; Hinderling, p. 517. Contra: Stark, no. 31 ad Sect. 940 SCC.
Sect. 422.1 SCO.
Sect. 422.2 SCO.
Sect. 422.3 SCO.
Sect. 423.2 SCO.
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245
The application of the rules dealing with the conduct of business without
mandate is confirmed by Sect.753 SCC. This provision, which applies to
usufructs, expressly mentions that the beneficiary of the usufruct is entitled
to claim for indemnity in case of improvement or expenses on the basis of
the rules dealing with the conduct of business without mandate.
or terminated
owner (restitution under Sect. 938-940 SCC) apply.
the sold movable is defective, then the transferor may reclaim the movable
delivered on the basis of the contract.443 The party to return the movable
may request indemnification for improvement and expenses on the basis
of Sect. 65 SCO.444 The right to reimbursement is limited to necessary and
useful expenditures. As regards other expenditures, the party to return the
movable may claim no reimbursement, but may remove whatever he has
added prior to returning the movable, to the extent that such removal is
possible without damaging the movable itself.
19.4.
Possessor’s right to retain the movable
According to Sect. 939.1 SCC, the bona fide illegitimate possessor is entitled to retain the asset as long as the “necessary” expenditures and the
“useful” expenditures have not been reimbursed to him. Such right to
retain is not a right in rem and is in particular not a retention right (as
provided for instance by Sect. 895 SCC); it does not allow the possessor
to retain the asset in case his claim for indemnification is not satisfied by
the owner.445
Section 940 SCC provides no right to retain the movable by an illegitimate possessor in bad faith. However, several authors favour a per
analogiam application of Sect. 939.1 SCC in this case, thus allowing the
mala fide possessor to retain the movable until reimbursement of the “nec443
444
445
Thévenoz, no. 12 ad Sect. 109 SCO.
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246
essary” expenditures (within the meaning of Sect. 940.2 SCC) has intervened.446
In a situation were a legitimate possessor is to return the movable, because
the right to possess it comes to an end, or because the contract is terminated in case of the debtor’s default or in case of a defective product, then
the legitimate possessor may benefit from the provisions of Sect. 895 SCC.
According to these provisions, a creditor has a retention right over a movable in its possession for the purpose of securing a claim against the owner
of the movable, provided this claim is in relation to the movable.447 This
retention right is constitutive of a pledge over the movable.
In the event a payment is due to the legitimate possessor in exchange
for the movable (as for example in a situation where the seller is to return
the price and the buyer to return the sold object), then both parties may
also benefit from the provisions of Sect. 82 SCO:448 the party claiming
performance, by the other party of a contractual obligation, is to tender
performance of his own counter-obligation vis-à-vis this party.
19.5.
Who bears the expenses of the restitution
of the movable to the owner?
Sections 938-940 SCC do not contain a rule on who has to bear the cost
of the movable’s restitution. It seems clear, however, that the illegitimate
possessor, having no right to possess the asset, must return it to its owner at
his own expense (whether he be a bona fide or a mala fide possessor).
446
447
448
See Stark, no. 33 ad Sect. 940 SCC; Steinauer, no. 522. Contra: Hinderling, p. 516
et seq.
A right of retention of the buyer having to return the defective product for the
purpose of securing his right to be reimbursed the price already paid by the seller
was for example admitted by a Swiss State Court: Rep. 1983 99.
Termination in case of debtor’s default: ATF 114 II 152; termination in case of defective product: ATF 109 II 26.
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247
Even where Sect. 938-940 SCC do not apply because the possessor was
not an illegitimate possessor, then the general principle is that the person
who is under the duty to return the movable is to bear the costs of the
restitution.
In the event a sales contract was terminated because the sold movable
was defective, then the buyer is only to put the movable at seller’s disposal.
It is thereafter up to the seller to take delivery of the movable at its own
expense.449 It is likewise considered in the context of the CISG that in case
of contract avoidance, the party to pay compensation to the other is also to
bear the costs of the products’ restitution.450
449
450
Tercier, no. 848; ATF 109 II 26.
Tallon in Bianca / Bonell, no. 2.6 ad Sect. 81 CISG.
www.sellier.de
www.sellier.de
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fidéicommissaires, Berne 1992
A. von Planta, in Code des obligations I. Commentaire romand
H. Rey, Die Grundlagen des Sachenrechts und das Eigentum, 3rd ed., Berne 2007
W. Scherrer, in R. Haab / A. Simonius / W. Scherrer / D. Zobl, Das Eigentum,
Zürcher Kommentar, vol. IV.1, 2nd ed., Zurich 1977
J. Schmid / B. Hürlimann-Kaup, Sachenrecht, 3rd ed., Zurich 2009
H. Schönle, Kauf und Schenkung. Erste Lieferung, Zürcher Kommentar,
vol. V.2.a, 3rd ed., Zurich 1993
M. Schraner, Die Erfüllung der Obligationen, Zürcher Kommentar,
vol. V.1.e, 3rd ed., Zurich 1999
I. Schwander, in ZGB II. Basler Kommentar (H. Honsell, N.P. Vogt and
D. Staehelin, Vertragsklauseln für den Insolvenzfall, in AJP 2004 p. 363 et seq.
E.W. Stark, Der Besitz, Berner Kommentar, vol. IV.3.1, 3rd ed., Berne 2001
P.-H. Steinauer, Les droits réels, vol. I, 4th ed., Berne 2007
P.-H. Steinauer, Les droits réels, vol. II, 3rd ed., Berne 2002
www.sellier.de
Table of Literature
251
D. Tallon in C.M. Bianca / M.J. Bonell, Commentary on the
international sales law: the 1980 Vienna Sales Convention, Milan 1987
P. Tercier, Les contrats spéciaux, 4th ed., Zurich 2009
L. Thévenoz, in Code des obligations I. Commentaire romand
L. Thévenoz, Trusts in Switzerland: Ratification of The Hague Convention on
Trusts and Codification of Fiduciary Transfers, Zurich 2001 (cited as: Trusts)
P. Tuor / B. Schnyder / J. Schmid / A. Rumo-Jungo, Das schweizerische
Zivilgesetzbuch, 13th ed., Zurich 2009
S. Venturi, in Code des obligations I. Commentaire romand (L. Thévenoz and
F. Werro, eds.), Geneva 2003
D. Zobl, Das Fahrnispfand, Berner Kommentar, vol. IV.2.5.1,
2nd ed., Berne 1982 (cited as: Das Fahrnispfand)
D. Zobl, in R. Haab / A. Simonius / W. Scherrer / D. Zobl,
Das Eigentum, Zürcher Kommentar, vol. IV.1, 2nd ed., Zurich 1977
www.sellier.de
www.sellier.de
ATF
Arrêt du Tribunal fédéral (Judgements of the
Swiss Federal Tribunal) (available online at the following
website: http: // www.bger.ch)
CISG
United Nations convention on contracts for the international
sale of goods of April 11, 1980; SCFL no. 0.221.211.1
Convention on the Contract for the International Carriage of
Goods by Road, of May 19, 1956; SCFL no. 0.741.611
CMR
et seq.
et sequentes
LAR
Federal law on the aircraft register, of October 7, 1959;
SCFL no. 748.217.1
Federal law on the insurance contract, of April 2, 1908;
SCFL 221.229.1
Federal law on the international transfer of cultural property,
of June 20, 2003; SCFL no. 444.1
Federal law on maritime navigation, of September 23, 1953;
SCFL 747.30
Federal law on the ships register, of September 28, 1923;
SCFL no. 747.1
LIC
LITCP
LMN
LSR
PJA
Pratique juridique actuelle (Lachen)
Rep
RNRF
Repertorio di Giurisprudenza patria (Bellinzone)
Revue suisse du notariat et du registre foncier (Wädenswil)
SCC
SCFL
Swiss civil code, of December 10, 1907; SCFL no. 210
Systematic collection of Federal legislation (available online at
the following website: http: // www.admin.ch / ch / f / rs / rs.html)
Federal law completing the Swiss civil code (5th part: Law of
obligations), of March 30, 1911; SCFL no. 220
Federal law on debt collection and bankruptcy proceedings,
of April 11, 1889; SCFL no. 281.1
Section
Semaine Judiciaire (Geneva)
SCO
SDCB
Sect.
SJ
www.sellier.de
www.sellier.de
in the Czech Republic
Luboš Tichý
www.sellier.de
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Table of Contents
Introduction
262
Part I:
1. Ownership and other property rights
1.1. General basics
1.1.1. Development and current state of law
1.1.2. Characteristics of property rights (rights in rem)
in contrast to obligations
1.1.3. General principles of property law
1.2.1. Definition and extent of the ownership right
1.2.2. State or public ownership
1.2.3. Limitations of ownership
1.3. Other property rights
2. Possession
2.1. Notion and categories of possession
2.1.1. Notion of possession
2.1.2. Categories of possession
2.1.3. Possession in good faith
2.1.4. Draft Civil Code
2.3. Detention
2.5. Protection of ownership, possession and detention
2.5.1. Public law protection
2.5.2. Court protection
(a) Injunction (actio negatoria)
(b) Legal action for the release of a thing
(revindication)
(c) Damages and restitution
2.6. Self-help
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263
268
269
269
270
271
271
273
273
273
274
275
277
277
278
278
279
279
280
280
281
282
283
283
Czech Republic
258
2.8. Protection of detention
2.9. Commentary
2.10. Draft
284
284
286
3. Rights to use and to acquire (rights quasi in rem)
287
4. Scope of rules of transfer of movables, relevant definitions
4.1. Things
4.2. Things in the Draft Civil Code
288
290
Part II:
5. System of transfer of ownership
5.1. Basic characteristics and general overview
5.2. Unitary transfer
5.3. Causal traditio system
5.4. Suitable types of obligations
5.5. Defects affecting the transfer of ownership
5.5.1. Acquisition by a bona fide acquirer
5.5.2. Lack of personal capacity
5.5.3. Defects of a party’s will: coercion
5.5.4. Mistake – relative invalidity
5.5.5. Rescission (withdrawal)
5.5.6. Condition precedent and resolutive condition
5.5.7. Consequences of unjustified enrichment
5.6. Delivery
5.6.1. Physical delivery
5.6.2. Exceptions to general means
(a) Mail order selling
(b) Self-service selling
(c) § 443 Commercial Code
(d) § 445 Commercial Code
(e) Traditio brevi manu
(f) Constitutum possessorium
(g) Traditio symbolica / longa manu
5.7. Transfer by registration
5.7.1. Ships
(a) Maritime register
(b) Register of inland ships
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292
293
295
297
297
298
298
299
300
301
302
303
303
304
304
304
304
304
305
305
305
305
306
306
306
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259
5.7.2. Aircrafts
5.7.3. Financial instruments (securities)
5.7.4. Cars
5.7.5. Pledge on movables and securities
5.8. Acquisition through a legal act
5.9. Real agreements and hidden reservations
5.10. Draft Civil Code
5.11. Commentary
307
307
307
307
308
308
308
309
6. Double sales
309
7.1. Contracts under the Civil Code
7.2. Contracts under the Commercial Code
311
313
8. Acquisition of ownership by indirect representation
8.1. Lack of general rules
8.2. Commission contract under the Commercial Code
313
314
9. Consequences of insolvency
9.1. General
9.1.1. Types of insolvency proceedings
9.1.2. Consequences of the commencement of the
bankruptcy proceedings and the action Pauliana
9.2. Insolvency of the transferee (buyer) and the
transferor (seller)
9.2.1. When the obligations of both parties have not
been discharged in full
9.2.2. Insolvency of the transferee (buyer)
9.2.3. Insolvency of the transferor (seller)
10. Passing of risk
10.1. General principles
314
314
315
317
317
318
318
319
Part III:
11. Acquisition by combination, commingling,
processing and other ways
11.1. Notion
11.2. Creation out of own material
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323
Czech Republic
260
11.3. Processing
11.4. Combination, commingling
11.5. Accruals
12. Good faith acquisition
12.2. Quality of good faith
13. Acquisitive prescription
13.1. Acquisitive prescription of movable property
13.2. Purpose
13.3. Requirements
13.3.1. Introduction
13.3.2. Duration of possession, suspension and
interruption
13.3.3. Change in possessors
14. Draft Civil Code
14.1. Appropriation and accrual
14.2. Finds
14.3. Other forms
14.4. Commentary
323
324
324
325
326
327
327
328
328
328
329
329
330
331
331
Part IV:
Additional issues
15. Reservation of ownership
332
16. Abandonment and loss of ownership
333
17. Co-ownership
17.1. Common ownership
17.2. Joint ownership
334
335
18. Transfer of an “enterprise” as an unspecified “set” of assets
337
19. Bulk sales and floating charges
338
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20. Restitution
20.1. Legal framework
20.2. Remedies
20.3. Examples of application
20.4. Entitlement to benefits
20.6. Reimbursement for improvement or expenses
20.6.1. Generally
20.6.2. Possessor’s right to retain the movable
20.6.3. Expenses of the restitution
20.7. Commentary
338
338
339
340
341
341
341
343
344
344
Table of Literature
345
349
www.sellier.de
Introduction
A few comments must be made to explain the structure and style of this
report. Most reports in this series follow a recommended structure. The
departure from the recommended structure here is relatively slight. However, it follows carefully the purpose of the contribution, i.e. that the legal
situation be precisely described so that the relevant national law arrangement may be comprehensible to a reader who is a complete outsider to the
system. Additionally, despite the fact that the expression of certain legal
categories is, to a relative degree, the same or very similar among various
jurisdictions, it may need clarification with regard to Czech law and we
have, therefore, attempted to do so.
For example, as the reader will see, the current state of the law is a type
of hybrid of the Austrian and the socialist understanding of rights in rem.
Above all, the brevity of the legal arrangement typical for Czech communist law means that a reader may often have doubts about whether he has
correctly grasped the meaning of the Czech law. Therefore, we insert the
following § (1.1.1.), which briefly describes the development preceding the
current state of the law.
It is clear that a description of the current state of the law must necessarily be, in a certain sense, an interpretation thereof. We shall try to provide a
description reflecting the current state of affairs as faithfully, as objectively,
as possible. Our own opinions, or other subjective explanations, are limited
to short commentaries, which are always placed after each part.
To provide additional information, we also detail, where absolutely necessary, the likely form of any forthcoming law – so far as it may be contained
in the February 2009 draft Civil Code (hereafter “Draft”).
www.sellier.de
Part I:
1.
Ownership and other property rights
1.1.
General basics
1.1.1. Development and current state of law
Until 31 December 1950, the Austrian ABGB formally applied in the
Czech Republic. However, during the period following 1945, and particularly after the communist take-over of 25 February 1948, its application was
formal and practically restricted. This came about primarily as a result of
the process of confiscation and nationalization.1
During the pre-war period, the main principles of private law did not
differ from Austrian law. The case law of the Supreme Court of the Czechoslovak Republic was recognized also in Austria, notwithstanding the fact
that in certain matters it marginally differed from Austrian case law.
On 1 January 1951, the Civil Code of 1950 (Civil Code / 1950) came
into effect.2 This was the first communist codification in the field of private
law. Its aim was to formally enshrine the factual changes that had taken
place and that were being contemplated. A fundamental upheaval took
place at this time in the field of ownership relations and, thus, the changes
made by the Civil Code / 1950 were most significant precisely in the field
of rights in rem.
These fundamental changes, particularly in the field of ownership,
occurred while retaining some basic formal principles. In particular, the
1
2
See Decree of the president of the Republic, particularly Decree No. 5, of May 5,
1945 on the annulment of certain acts concerning property during the time of suppression and on national administration of estates of Germans, Hungarians, traitors
and collaborators, and certain organisations and institutions, Decree No. 12 / 1945
Coll. of June 21, 1945 on confiscation and speedy distribution of agriculture property
of Germans, Hungarians, as well as traitors and enemies of the Czech and Slovak
nations, Decree No. 108 / 1945 Coll. of October 25,1945 on confiscation of the estate
of the enemies and on the Fund of national reconstruction and Decree No. 100 / 1945
Coll. of October 24, 1945 on nationalisation of the mines and certain industrial
undertakings.
See Civil Code of October 25, 1950, No. 141 / 1950 Coll. and its § 570.
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264
new legal arrangement took over most of the traditional soviet institutions
unknown in the ABGB3 or in Roman law. All the greater then was the
conflict between the law on protection of rights civil rights are protected by
law) and the actual state of affairs. The “source of knowledge” for the creation and application of law became Marxist doctrine and even the articles
of J.V. Stalin.4 Accordingly, ownership was a class matter and cannot be
understood juristically as a collective subjective ownership right, but must
be seen as a social and economical assumption on the basis of which ownership rights were created both in the objective and subjective senses.5
If class relations change in society, the form of ownership also changes.6
Ownership evolves on the basis of the development of means of production
in society and the evolution of societal production relations. Ownership
during this time was constantly in a state of rapid evolution and this entailed continual evolutionary transformations of the form of ownership.
However, soviet law presented an unattainable goal.7 The basic form of
ownership was socialist ownership, which was based on the assumption of
state power being taken over by the working proletariat.8 The communist
coryphaeus Viktor Knapp considered the cornerstones of the arrangement
of ownership relations to be the leadership role of the Czech Communist
Party, alliance with the USSR, the building of the people’s democratic state
apparatus, the unified economic plan, nationalization, and confiscation.9
The foundation of all this was socialist ownership, which divided into state
socialist ownership, as the highest form of ownership, and socialist cooperative ownership. In addition, there also existed personal ownership and
private ownership, i.e. forms in decline.10 In contrast to the constitution,
the Civil Code / 1950 omitted communal ownership, which, it is said, it did
not recognize.11
There was also a change in the understanding of ownership. A different
formal interpretation was now given to certain legal institutions that were
3
4
5
6
7
8
9
10
11
Civil Code / 1950 repealed ABGB as of January 1, 1951 except §§ 1151-1164, and
many other laws that were based on it.
See Knapp V., Vlastnictví v lidové demokracii (Property rights in the people’s democracy), Praha 1952.
See Knapp V., op.cit. in Fn. 4, 9.
See Knapp V., op.cit. in Fn. 4, 381-389.
See Knapp V., op.cit. in Fn. 4, 389. Knapp regards capitalistic private ownership and
the private ownership of small producers as one of those kinds of ownerships which
disappear.
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265
taken over word-for-word, such as “disposing with a thing”,12 “demanding a
thing from a person who unlawfully retains it”, and “resisting unauthorized
interference”. These institutions now took on a different meaning from
that in bourgeois society.13 Likewise, other institutions, although of a traditional character, were conceived of, and in particular interpreted – if used
at all – in a different manner. Possession was provided in an entirely new
way, which contrasted with the prior concept.
As regards the other traditional institutions characteristic for the ABGB, the communist Civil Code / 1950 above all omitted the principle of
superficies solo cedit (see § 155) and the intabulation principle,14 whereas application for registration (in land ownership and other registers) was purely
a matter of record and had no constitutive function (see § 112).
Civil law came to recognize significant changes in the field of acquisition of ownership itself. Most importantly, it omitted the principle of
traditio and thereby overcame the “dogma relating to ownership rights and
modus acquirendi domini”. An ownership right was transferred under the
agreement itself (§ 111). The two-phase method of transfer was rejected as
a dogma which had become a “pitiful, shabby fiction.”15
Ownership of individually determined things was transferred, as a matter of principle, under the transfer agreement itself. In order to simplify and
expedite economic relations, a transfer of ownership right to individually
determined things became effective primarily dependent on the will of the
parties involved.16 In the case of things determined by type, their surrender
was required for the transfer of ownership right (§ 11 par. 2).
The Civil Code / 1950 recognized further methods of acquisition of an
ownership right, including acquisitive prescription, appropriation, finding,
increase, and processing, although it did not deem them of substantial relevance.17 Many of these traditional institutions were directly condemned or
proscribed by doctrine. The construction of occupation did not withstand
scrutiny.18 In the case of certain institutions there was even a comical simplification. For example, in the event of dereliction, things that did not
belong to anyone became the property, not of an individual, but of the
12
13
14
15
16
17
18
It is acknowleged that the term “thing” is somewhat ineloquent in English and not
widely used as a legal term in English-speaking legal systems. However we use it here
because it is the best translation of the Czech term “věc”.
“Intabulation principle” means that the registration of the title in the land register
is constitutive for the legal acquisition of that title.
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266
working collective.19 Processing and other methods (mixing, etc.) were
assumed obvious by the Civil Code / 1950, which therefore did not provide
for them.20 As regards protection of ownership, the mainstream doctrine at
that time considered the criminal law protection of socialist state ownership relevant.21
Even though no fundamental change later occurred in political relations, in 1964 a new Civil Code (Civil Code / 1964) was adopted which,
after 1 April 1964, took the place of the codex from 1950, which was
repealed in full. The Civil Code / 1964 destroyed any remaining classic institutions that had been formally still in existence as part of the traditional
conception of private law in the Civil Code / 1950, removing from civil
law such institutions as possession, detention, building right, prescription,
encumbrances, easements and others.
These legal categories, into which “the new politico-economical content of civil-law relations had to be accommodated, grossly violated it”.22
From the perspective of the ideologues of the communist regime, the Civil
Code / 1950 was a “retarding element”.23 In contrast, the Civil Code / 1964
“was based on the socialist reality, which consisted of the affiliated classes of
labourers and cooperative farmers together with the working intelligentsia.
The capitalist class had been liquidated along with its private ownership of
the means of production.”24
Ownership rights, and the acquisition and forfeiture thereof, were provided for only in eight provisions of the Civil Code / 1964, as the codex
provided only for so-called personal ownership. In contrast, state socialist
ownership was provided for in a special norm – the Economic Code, and
private ownership was mentioned only in the interim provisions of the
Civil Code / 1964. Only there was there mention of lien, pledge rights, and
easements, which could no longer arise, although the legislator had to deal
with the issue of their continued existence. In addition to the above described categories, which were now not continued into the codex, the Civil
Code / 1964 also did not recognize other grounds for acquisition ownership,
i.e. the institution of mixture by processing, of appropriating a found thing,
or of appropriating a thing which has been abandoned.
At one point, however, a fundamental change was made. In regard to
the manner of passage of ownership of an item of movable property, the
19
20
21
22
23
24
See Knapp V., op.cit. in Fn. 4, 404 et seq.
See Kratochvíl Z., in: Kratochvíl et al., Nové občanské právo (New civil law), Praha
1965, 8.
See op.cit. in Fn. 22, 8.
See Zdobinský S., in: op.cit. in Fn. 22, 191.
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267
legislator abandoned the contractual principle and returned to the twostage method of acquiring ownership and, therefore, to the institutions of
agreement and traditio, titulus and modus. It therefore assumed a construction that Knapp described as a dogma that had become a “pitiful, shabby
fiction”.25 The rationale for this fundamental change was given in a single
sentence, which laconically stated that this provision was removed and replaced by a new one that better accorded with the views of the citizens.26
Further development, however, even though under a relatively very
strict communist government, forced certain conciliations to be made.
Thus, in 1983, the institutions of mortgage and easement were reintroduced, along with acquisitive prescription.27
A fundamental change occurred under the so-called grand amendment
of the Civil Code,28 under which certain fundamental institutions were
returned to the civil-law codification. However, the drawbacks of the original 1964 conception could not have been essentially overcome, and so the
ensuing arrangement suffered from both the conflicted nature of the Civil
Code itself and the lack of a clear and, above all, complete arrangement.
A range of property law issues were provided for outside the Civil Code
(e.g. in the Labour Code), and case law still in use was undermined by a
perversely simplified understanding of the law. Therefore a decision was
made to draft a new codification.
The first attempt at a new codification was made in 1995, although this
failed shortly after.29 In 2001 it was decided to create a new Civil Code,
the first draft of which was submitted. If relevant, we reflect this text in
the parts below.30 In May 2005 the first draft of the new Civil Code for
the Czech Republic (Draft) was published, which in its third part (book)
provides for property law: this part will be briefly compared to the current
law (Civil Code) since the Draft is still the subject of public discussion.
After public debate, the Draft was considerably amended and eventually
submitted to the Cabinet in February 2009.
In many senses the Draft exceeds the limits of the existing concept,
primarily in its attempt to provide a comprehensive arrangement. The difference is primarily in the scope of the arrangement. Rights in rem are
25
26
27
28
29
30
See Mikeš J., in: op.cit. in Fn. 22, 210.
See Act No. 131 / 1982 Coll.
See Act No. 509 / 1991 Coll.
See Draft of the main concept of the Civil Code (prepared by F. Zoulík), Právní
praxe 1995, No. 5-6, 253-378.
See e.g. Eliáš K., Zuklínová M., Principy a východiska nového kodexu soukromého
práva (Principles and Background of the new Code of Private Law), Praha
2001, 7, 8 and the Draft in the wording as of February 2009.
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268
provided for in 60 paragraphs, of which pledge rights (liens) and retention
rights themselves take up 29 paragraphs; the residue covers ownership and
possession rights themselves. This situation is all the more serious since
the law sets forth institutions that have been unknown for a long time,
and since rights in rem are made the subject of a mandatory arrangement
so that, in contrast to the fields of obligational relations, it is not possible
to create new types or classes of these rights.
1.1.2. Characteristics of property rights (rights in rem)
Rights in rem (in Czech: věcná práva, a plural form, in contrast to legal German / Austrian usage) present a conceptual term, which was incorporated
into Czech law from the Austrian ABGB.
At the current time, rights in rem are understood in the systematic
categorizations of the civil law as one of the five basic parts of the new
codex (general part, property law, family law, law of successions and law of
obligations). As a rule, along with the law of obligations, they form a pair
of categories. The difference between a basic right in rem and an ownership
right, on one side, and an obligatory right, on the other, is grounded in the
field of economy.31
A right in rem endows the entitled party with so-called direct or unmediated lawful control over the thing.32 Whereas the obligatory rights refer
to relationships between persons, the rights in rem reflect this aspect merely
secondarily. A right-in-rem holder may utilize the right independently of
bilateral relations with other persons.
The term “rights in rem” has never had a precisely bounded definition.
Its definitive features include:
(a) The absoluteness of the right, which means that rights in rem are rights
with absolute effect in regard to all who are obligated not to interfere
with the holder in the exercise of his right to the thing.33
(b) The subject (in the meaning of the secondary subject of rights in rem)
is a corporeal thing.34
(c) The existence, origination and transfer of rights in rem must be cognizable to third persons. This applies especially to real property, where
31
32
33
34
See Knapp V., Knappová M., Švestka J., in: Knappová, Švestka, Občanské právo
hmotné (Civil Law), 3rd edition, vol. 1, Praha 2002, 260 (Further cited as Knapp
V. et al.).
Knapp V. et al., op.cit. in Fn. 31, 259.
See Knapp V. et al., op.cit. in Fn. 31, 260.
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269
a special register (the real estate cadaster) functions for this purpose
(publicity).35
(d) The types of rights in rem are limited in number (numerus clausus).
New types of rights in rem cannot be established on the basis of a
contract; the autonomy of will is restricted at this point.
The definition of a pledge right or lien does not fit fully within these defining features, which only shows the lack of clarity in the definition of the
scope of rights in rem; the subject of a pledge right or lien may be even a
receivable or some other property value, such as, for example, a commercial ownership interest in a commercial entity, a security, or intellectual
property.36
1.1.3. General principles of property law
Apart from their exclusivity (see 1.1.2. supra), which follows the basic principle of legal certainty, property rights have other typical features mirroring
this principle and limiting party autonomy. The right in rem must almost
always be linked with a specific thing (principle of speciality).37 Particularly with regard to immovables, third persons are protected by publicity of
property rights (principle of publicity).
1.2.
Notion of ownership
Ownership is defined as the right to control a thing, which involves the
right to hold, use, and enjoy the thing, and to dispose38 of it, all on the basis
of the owner’s own power and independently from the power of anybody
else.39
Some particular implications follow from the “absolute” character of
ownership. The first one is the owner’s right to claim the surrender of his
thing from a person who withholds it unlawfully. This right can be met in
various forms depending on the context. For example, in bankruptcy and
execution proceedings, we talk about (tierce) opposition claims or, in other
35
36
37
38
39
See Krčmář, Právo občanské, Práva věcná (Civil Law, Property Rights) Praha 1934,
297 f., Knapp et al., op.cit. in Fn. 31, 260.
See Knapp et al., op.cit. in Fn. 31, 261.
The term “dispose” is used in the sense of “to deal with as one’s own”, and not in the
more limited since “to give, sell or transfer”.
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270
words, the right to exclude property from the bankruptcy estate (or from the
execution). The owner has further the right of protection (see 2.7. infra)
from unlawful interference (in the form of injunctions).
According to Czech doctrine, the basic feature of ownership is elasticity.40 The concept of elasticity implies the possibility to trim down the
content of ownership to the most limited extent, the so called “nuda proprietas”. For example, the owner of a thing, who has lent it, is the “bare” owner
without the possibility to utilize particular rights of ownership. However,
after termination of the borrowing, the ownership will renew to the full
extent. The same principles apply also to other limitations of ownership
and, after all, to all other rights in rem.
1.2.1. Definition and extent of the ownership right
The Civil Code specifies particular component rights that belong to the
owner, namely the right “to hold the subject of ownership, use it, enjoy its
fruits and profits, and dispose of it”41 (including its alienation, i.e. its transfer to another person). The owner may also damage or destroy the thing.
The enumeration is not exhaustive.42
The right to possess the thing is the broadest component of the concept
of ownership and, at the same time, it is a presupposition for other rights
flowing from ownership. The right to use the thing (ius utendi) consists in
utilizing the qualities of the property. The owner may transfer this right
(as well as the right of possession) to another person. The owner may even
not use the thing, which is also a form of exercise of the right to use the
property.
Further, the owner has the right to enjoyment of the thing, i.e. to take
fruits and other profits of the thing. It is a matter of course that this right
is conceivable only in connection with things that render fruits or other
profits. Profits may be natural (fruits) or legal (interest).
Finally, the owner has the right to freely dispose of the thing within the
law. In contrast to other components of the ownership right, this right may
be exercised by juridical acts, as well as by factual behaviour.43
40
41
42
43
See § 123 of the Cicil Code.
See in Fn. 31, 267.
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1.2.2. State or public ownership
An important role is assumed by Act No. 219 / 2000 Coll. on property of the
Czech Republic and its functions. The state acts by means of its organizational units. These units include mainly the ministries and administrative
authorities. The state uses the property in order to carry out its functions
and / or in connection with the performance of these functions, and to carry
out activities beneficial for the public and / or for business purposes.
1.2.3. Limitations of ownership
Limitation of ownership means legal restrictions on the exercise of the
right of ownership; trespassing beyond these restrictions makes exercise of
ownership unlawful.44
Ownership limitations can be classified as “intrinsic” and “extrinsic”: intrinsic are the limitations that follow from the very nature of the ownership
and can be deduced from the general principle that “ownership obliges”;
extrinsic limitations result – depending on particular situations – from the
will of either the owner or third persons, and their origin may be in private
or in public law. The content of ownership limitations usually consists in
the owner’s duty to refrain from certain activities and, exceptionally, even
in a positive obligation to do something (adopt some measures).
The primary limitation of ownership is the duty not to interfere with
the ownership of others. This follows from § 3 of the Civil Code,45 which
establishes a general duty not to interfere with the exercise of other persons’
rights and not to exercise rights in conflict with good morals. The provision
constitutes the so-called “legal peace”. A general limitation of ownership,
as well as of other rights in rem, follows also from § 415 of the Civil Code46
on prevention of the incurrence of damage.
An important ownership limitation is represented by the prohibition
of emissions. “Emissions” means the exercise of ownership that wrongfully
interferes with a third person’s ownership, or with other rights in rem, to
such an extent that it is – under given conditions – unreasonable. The Civil
Code (§ 127 par. 1) stipulates that the owner shall refrain from everything
that would cause annoyance to an unreasonable extent to another person or
44
45
46
See in Fn. 31, 274.
See § 3 par. 1: The exercise of rights and performance of duties arising from civil
relationships may not, without legal grounds, interfere with the rights and justified
interests of others and may not be inconsistent with morality.
See § 415: Everybody is obliged to behave in such a way that no damage (injury) to
health, property, nature or the environment occurs.
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seriously jeopardize exercise of his or her rights. The prohibition of emissions
applies only to substantial annoyance or jeopardy, whereas the requirement
“to an unreasonable extent” must be assessed objectively with regard to the
particular case. These limitations especially concern ownership of real property, i.e. such activities as construction or other work on land or buildings.
Some limitations may be also imposed by public authorities, e.g. a duty to
fence a plot of land. A statutory limitation of real property ownership for
the purposes of maintenance of neighbouring land (building) or passage to
a neighbouring plot of land is called the “statutory encumbrance”.
Another limitation of ownership is provided in § 128 par. 1 of the Civil
Code and consists in the duty of the owner to allow use of the thing in case
of an emergency or urgent public interest (provided that the purpose cannot be attained otherwise), for the period and to the extent that the use is
necessary, and for compensation. The ownership may be also affected by
expropriation or other restrictions imposed by public authority. These are
possible only on the basis of law, in the public interest, where the purpose
cannot be attained otherwise, exclusively for attaining this purpose, and
for compensation (Civil Code, § 128 par. 2).
Ownership is a right protected by the Constitution and by the Charter
of Fundamental Rights and Freedoms47 (which is a part of the Constitution). Limitations, including expropriation, may be imposed solely on the
basis of the law for compensation. Employing the argument a minorem ad
maius, it can be deduced that in the same way (i.e. under the law and for
compensation) it is also possible to limit ownership as to the dispositional
freedom resulting thereof.
According to the Charter of Fundamental Rights and Freedoms, everybody is entitled to own property. However, the Charter also stipulates
property that is regarded necessary for securing the needs of the entire
society, development of the national economy and the public interest, and
therefore can be owned only by the state, municipalities or designated legal persons (Art. 11 par. 1). It also determines that certain things can be
only in the ownership of citizens or legal persons seated within the Czech
Republic (Art. 11 par. 2).
The Charter further stipulates obligations of the owner (“ownership
obliges”) (Art. 11 par. 3). Ownership may not be used to the detriment of
the rights of other persons and may not be used contrary to the general
interests protected by the law. Exercise of ownership shall not harm human
health, wildlife, or the living environment – beyond the level determined
by the law.
47
See Ústava České republiky (Constitution of the Czech Republic), constitutional act
No. 1/1993 Coll., and Listina základních práv a svobod (Charter of the Fundamental
Rights and Freedoms), Decision of the Czech National Council No. 2/1993 Coll.
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The transfer of movables with consequences for third parties is subject
to the principle of publicity, i.e. the transfer must be registered in a public
register, such as the register maintained by the Notarial Chamber of the
Czech Republic or, for example, the ship or aircraft registers (see, under 5.6
infra). Contractual limitations on transfers of ownership agreed between
the owner and a third party cannot be effective in regard to third persons
if the limitation has not been published by means of being entered into
the public register. If not published, the limitation does not go beyond
the obligatory relationship or the obligation between the parties to the
agreement.
1.3.
Other property rights
Even under the current law, rights in rem do not constitute a homogenous
group, but comprise two classes. Although both meet the above-mentioned
criteria of rights in rem, they are significantly different from one another.
The two classes are: a) ownership rights, amongst which is included the
institution of possession, and b) rights in rem in property of others, in particular the right of pledge (§§ 152-174 of the Civil Code) and the retention
right (§§ 173-180 of the Civil Code).48
2.
Possession
2.1.
Notion and categories of possession
2.1.1. Notion of possession
Czech doctrine deems possession one of the most debatable institutions of
civil law.49 Its peculiarity consists in the fact that it involves a factual state
incompatible with the legal state, although it is protected by law in the
interest of safeguarding its last peaceful state.50
A possessor of a thing (or right) is a person who treats the thing as his
own or exercises a right for himself (§ 129 par. 1 of the Civil Code). According to the Czech doctrine, possession requires physical control over the
thing and the intention to keep the thing like the possessor’s own property.
48
49
50
§ 151n par. 1, first sentence argumentum a contrario. It should be noted here that
servitudes (easements) can be established only in immovables (§ 151n of the Civil
Code).
See Knappová M., Držba (Possession), Právo a zákonnost, 1992, 587, 579.
See Knapp V., Quieta non movere, Právní praxe 1993, 265 et seq.
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If the possessor is in good faith, possessing the thing or right as though it
belongs to him, he is the lawful possessor. If the possessor is aware of the
fact that he is not the owner and nonetheless deals with (disposes of) of the
thing as if it were his own, he is an unlawful possessor. If a thing is possessed
by a non-owner, the owner retains only bare possession (bare ownership
right – nuda proprietas).
The law distinguishes between possession of a thing and possession of
a right. Possession is based on the assumption that the possessor must keep
the thing in his actual power, i.e. that he factually controls the thing, and
must furthermore have the will to dispose of the thing as his own.51
2.1.2. Categories of possession
This concept would generally encompass both an actual possessor and, for
example, a tenant who exercises the right to use the thing. Nevertheless,
the prevailing opinion is that possession requires both the intention to
possess (animus possidendi) and de facto control of the thing (corpus possessionis). Whether these requirements are fulfilled is to be assessed with
regard to both general experience and the concrete situation.52
However, this opinion would at the same time permit a detentor, who
in fact may be just a tenant, to also be the lawful possessor even though
he controls a thing in another’s name.53 A person who possesses a thing
via another person (a detentor) is undoubtedly also the possessor.54 An
employee, proxy, etc., who possesses a thing for the possessor will have the
status of a detentor – (in German Besitzmittler). However, the Civil Code
does not recognize such terms, but this does not mean that they should not
be taken into consideration.55
All the categories of persons who have been named, as well as employees, administrators and family or household members, have the status of a
detentor, i.e. of a person who “holds” a thing for the possessor and not in
his or her own name and usually not even in his or her own interest. Here
we must repeat that especially in the case of a tenant – the concept applies
only on the assumption that the possessor and the detentor have not agreed
on a different arrangement.
51
52
53
54
55
See in Fn. 31, 293. The Civil Code recognizes also a possession of right consisting
in lasting or reoccurring performance (§ 129 par. 2 of the Civil Code).
See Spáčil J., in: Švestka J. et al. (eds.), Občanský zákoník, Komentář (Civil Code,
Commentary), vol. I, 2nd ed., Praha 2009, 735 and R Cdo 728 / 2000.
Knapp V. et al., op.cit in Fn. 31, 225 et seq.
See Spáčil J., op.cit. in Fn. 52, 735.
See under 2.3.
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Possession is provided for in the Civil Code only in two fragmentary and
imperfect provisions (§§ 130 and 131).56 Neither from these provisions nor
from the case law is it possible to deduce whether the scope of the relationship of the possessor to the possessed thing, at the moment of acquisition
of the possession and during the possession, must be the same, or whether
it can vary. We assume that the scope of the possession does not change
during the course of the possession.
The only distinction the Civil Code makes in this context is that of
“lawful” and “unlawful” possession based on the existence of good faith.57
Paradoxically, the term “lawful possession” was introduced into law by the
Civil Code / 1950.58 However, this meant negation of the principles on
which the law of possession was based in the ABGB, also with regard to its
substantial content.
2.1.3. Possession in good faith
In doctrine and case law there is a consensus that the assessment whether
a possessor is in good faith or not must be made objectively and not merely
from the subjective perspective of the affected person. It must also be taken
into consideration whether the possessor, exercising an ordinary degree of
56
57
58
See § 130 (1): The person who, taking into account all circumstances, is in good
faith that a certain thing or right belongs to him is considered its lawful possessor.
In case of doubt, the person shall be considered a lawful (rightful) possessor.
(2) Unless the law provides for otherwise, the lawful possessor has the same rights
as the owner, including in particular the right to the fruits and profits yielded by the
thing during the period of his lawful possession.
(3) The lawful possessor has against the owner a claim for reimbursement of the
costs which the possessor reasonably incurred on the thing during the time of lawful
possession, to an extent corresponding to the appreciation of the thing at the day of
its return. However, the customary costs of maintenance and operation shall not be
refunded.
§ 131: (1) The unlawful possessor is obliged to surrender the thing to the owner
together with its fruits and yields and to compensate him for any damage caused by
the unlawful possession. He may deduct the costs which were necessarily incurred
on maintenance and operation of the thing.
(2) The unlawful possessor may sever from the thing that part of it which he appreciated at his own expense, where this can be done without impairing the substance of
the thing.
See § 145 of the Civil Code / 1950.
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caution, did have or could have had reasonable doubts during the period of
possession that such thing or right belonged to him.
Good faith terminates as and when the possessor becomes aware of facts
that, from an objective point of view, must have triggered doubts that the
thing rightfully belonged to him.59 Lawful possession cannot be based on a
mistake (error) of the possessor that he could have avoided by exercising
an ordinary degree of caution. Should possession be established on the basis
of an error, the error must be excusable.
Excusable errors are usually errors of fact; errors of law are excusable
only in exceptional cases. Errors of law consist in ignorance or incomplete
knowledge of a generally binding legal regulation or an incorrect assessment
of legal consequences of legal facts. In exceptional cases, there may be situations where the possessor will be in good faith even if his conviction is
based on an error of law.60 However, a mere ignorance of a certain provision
of law is not excusable. A mistake caused by a state authority, however, is
excusable, unless it is proven that the possessor must have been aware of
it, since the mistake is based on the trust of citizens in the state and the
bodies thereof. A person who seized possession on the basis of a mere oral
agreement may not be the lawful possessor of real property.61
The law on surrender of a thing by a possessor and unjust enrichment
now partially overlap, and this duplicity brings about problems that are difficult to overcome. The provisions of § 130 par. 2,62 under which the lawful
possessor has the right to fruits and benefits from a possessed thing for the
duration of his lawful possession, and § 458 par. 2 of the Civil Code, according to which the proceeds from a possessed thing must be surrendered along
with the subject of unjust enrichment if the person who obtained such
enrichment did not act in good faith, identically provide for acquisition of
benefits and proceeds; if a person is not obliged to surrender fruits, it can
be assumed that he acquires ownership thereof, despite that the law does
not expressly declare it. This conflict can be resolved if we regard §§ 130
and 131 as special provisions to § 458, so that § 458 will not be applied to
relations arising in connection with actions for surrender of things.
From the fact that a lawful possessor has a right to the fruits and benefits,
it can be deduced that he acquires ownership of such fruits and benefits and
is not obliged to surrender them or provide the owner with compensation
for them. As soon as natural fruits are separated, they belong to the lawful
possessor, even if not consumed. If they are consumed, the lawful possessor
59
60
61
62
See Knapp V. et al., op.cit. in Fn. 31, 289, 290.
See R 22 Cdo 417 / 98.
See Spáčil J., op.cit. in Fn. 52, 743-745.
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need not provide the owner with compensation for them.63 Legal fruits also
belong to the lawful possessor. The lawful possessor is entitled to the legal
fruits, even when not collected during the period of lawful possession.64
2.1.4. Draft Civil Code
Possession is provided for in a traditional manner, i.e. the Draft contains a
definition of acquisition of possession (§ 930), the consequences of loss of
possession (§ 948), protection of possession (§ 942-944), and new institutions such as joint possession (§ 949).
What is important to note in the Draft is that only intent, and not a
physical control, is required to acquire possession. Possession comes into
existence when the possessor assumes a thing by exercising his or her power
or by the thing’s transfer. Distinction is made between fair and unfair possession and between lawful and unlawful possession; possession is deemed
fair and lawful (§ 861). A lawful possessor has the same rights as the owner
(§ 863). Contrary to the current treatment, protection of possession is specific and differs from the protection afforded to owners. Possessors may file
negatory actions and restitution actions. The possessor is further entitled
to exercise his powers, the scope of which remains unchanged.
2.2.
The function of possession is undoubtedly above all to legalize the situation
where legalization is required for a person who has no ownership, but who
nevertheless possesses a thing as his own. A second function comprises, and
also is a component of, the transfer of an ownership right, both in connection with the handing over of a thing and in connection with acquisitive
prescription.
As the possessor has the same rights as the owner, he has special remedies against any interference with his possession. This is the expression of
a function of protection: to keep the peace.65
63
64
65
See Spáčil J., op.cit. in Fn. 52, 522 and R 22 Cdo 837 / 98.
See Knapp V., Quieta non movere, in Fn. 50 passim.
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2.3.
Detention
Detention means that an authorized person deals with a thing belonging to
a third person, i.e. with the knowledge that he is not the owner of the thing.
In contrast to a possessor, wherein both components of his status (control
and intention) must be present, for a detentor, only control is required, i.e.
a situation where he has the thing in his power or de facto control, but he
lacks the intention to possess.
Detentors may be authorized or unauthorized. Detentors are authorized
if they exercise control over things within the framework and deadlines
stipulated by the thing’s owner. If the detentor breaches these restrictions,
he becomes an unauthorized detentor. Detention may transform into
possession if the detentor starts to dispose of the thing as if it were his
own.66
It must be seen that detention, which corresponds in Czech law to the
position of a tenant, is not expressly provided for. The position of a detentor is considered only in doctrine. It ensues from this that if we recognize
the numerus clausus of rights in rem, then the position of the tenant may be
only an obligational-law relationship.
Naturally, the matter also has another side. If we consider detentor and
detention in themselves institutions, this means we also attribute to the
detentor certain rights and obligations. This, however, is actually a question only of theory and so we can hardly maintain the paradoxical idea that
there exists a right in rem that is not provided for explicitly in law and that
therefore the principle of numerus clausus in the field of rights in rem does
not apply in the Czech legal system.
It bears repeating that a lease is considered to be a legal obligational
relationship and a lease agreement is an obligational agreement. We can
therefore hardly answer the individual questions in this section. Naturally,
this also applies to tenants of real property.
2.4.
Acquisition of possession is not separately provided by the Civil Code. It
is assumed that it is possible to acquire possession based on a legal title or
simply by obtaining actual power over the thing. Otherwise, acquisition of
ownership includes acquisition of possession and, therefore, we will deal
with the issue in chapter III infra.
66
See Knappová M., op.cit. in Fn. 49, 580.
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2.5.
279
Protection of ownership, possession and detention
The Czech Civil Code protects ownership and possession in three various
ways, distinguishing protection by state administration (§ 5),67 by the courts
(petitory), and by self-help (§ 6).68
2.5.1. Public law protection
Under the predominant opinion, this is not a protection of a right but a
protection of the peace.69 This protection may be provided by the relevant
state administration authority – the municipal office. Protection under § 5
Civil Code will be provided only if disruption of the peace is apparent; this
means that peace had existed and that it was apparently disrupted. The
protection is immediate and temporary. Proceedings on this type of protection fall under administrative proceedings, wherein the state administration authority does not address legal issues, i.e. whether peace was disrupted
lawfully or unlawfully.
The competent authority is the municipal office in whose jurisdiction
the right was violated (§ 11 of the Act No. 102 / 1992 Coll.). The possession
is protected whether or not it is lawful or unlawful; what matters is a quiet
possession. The question then arises what possession can be considered as
quiet. The resolution can be found by taking into consideration its duration
and origin (modality of its creation), because a possession violently taken
by the possessor can transform into quiet possession generally later than
possession obtained as a consequence of a transfer of the item.70
The decision of the municipal office has only a preliminary character
and a following divergent decision of the court is not excluded. The appeal
against the municipal office decision before the administrative court is possible. Violation of the possession is a precondition of any injunctive action.
This violation is an act that afflicts this possession without authorization.
67
68
69
70
§ 5: Where an obvious breach of peace occurs, protection may be sought at the
competent state administrative authority. As an interim remedy, the administrative
authority may prohibit the breach (interference), or order restoration to the previous
condition. The right to seek protection from a court is not thereby affected.
§ 6: If a person is imminently threatened with an unlawful interference with his right,
the person so threatened may himself avert such violation in an appropriate manner.
See Knapp V., Quieta non movere, cit. in Fn. 50, 265 et seq.
See Spáčil J., Ochrana vlastnictví a držby v občanském zákoníku (Protection of
Ownership and Possession in the Cicil Code), 2nd ed., Praha 2005, 233.
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2.5.2. Court protection
There exist two specific tools: legal action for the release of a thing (rei vindicatio), and the injunction (action negatoria). The law explicitly extends
this protection in favour of the owner and the possessor (§ 126 par. 2).71
Apart from this, damages and restitution may be sought.
(a)
Injunction (actio negatoria)
Injunctions may be filed by the owner or any co-owner against a person
who violates the ownership title or right, in a way other than by seizing the
owner’s thing without authorization.
Actions for emissions (§ 127 par. 1)72 represent a special case of negatory
actions. Unauthorized violation contested by the legal action does not have
to exist continuously.73 If the violations consist of permanent, repeated
actions, these actions may be deemed to form a single, continuous action.
Negatory actions may be further filed to request that the defendant solely
restrict his actions to one clearly detailed violation.
Negatory actions may accumulate with actions for protection against
impeding damage – actions for measures to avert damage (§ 417 par. 2).74
However, according to the case law, protection is not justified and en71
72
73
74
§ 126: (1) The owner has the right to protection against anyone who unlawfully
interferes with his right of ownership; he may in particular claim surrender of a thing
owned by him from any person withholding it unlawfully.
(2) The person who is entitled to hold a certain thing enjoys a similar right to such
protection.
§ 127 par. 1: The owner of a thing must abstain from anything that would cause
annoyance to an unreasonable extent to another person or seriously endanger the
latter’s exercise of his rights. The owner may not, therefore, endanger his neighbour’s
buildings (structures) or plot of land by making alterations to his own plot of land
or to any building (structures) erected on such land without having taken adequate
measures in respect of proper reinforcement of his building(s) or other appropriate
measures in respect of his plot of land; he may not vex his neighbours to an unreasonable extent by noise, dust, ashes, smoke, gases, fumes, odours, solid or liquid waste,
light, shadows, and vibrations, and he may not let breeding animals enter adjacent
land. Furthermore, he may not, inconsiderately or in an inappropriate season, remove tree roots from his soil or cut tree branches that overhang his plot of land.
See § 417 par. 2: “If the threat is serious, the person threatened has the right to
demand at a court that it orders suitable and comensurate precautions to avert the
impending damage.”
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croachment is not unauthorized if the violating actions allegedly consist of
mere threats.75 In addition to traditional defences, the defendant may claim
that he encroaches the ownership title or right on the grounds of another
right in rem or right to fulfilment of obligation.
(b)
Legal action for the release of a thing (revindication)
Revindication is a legal action whereby the owner of a thing claims protection against a person who seizes the thing without authorization. The
legal action may be filed by the owner or by any co-owner of the thing. It
is yet to be resolved whether the action may be filed by a co-owner against
another co-owner.76
The person who seizes the thing without authorization is the defendant. Both a possessor and a detentor may be a defendant. However, if the
defendant lost his possession or detention of the thing, the revindication
claim extinguishes. If the defendant lost or destroyed the thing, the owner
loses the opportunity to claim the thing successfully; instead, the owner
may only claim damages.
The situation is different with legal actions against “fictitious possessors”, i.e. persons who pretend possession to mislead the owner and conceal
the true possessor. Only things that can be distinguished from other things
of the same type, i.e. also substitutable things that can be individualized,
may be claimed.77
The case law contains a disputable question whether the defendant may
defend on the basis that he acquired the thing duly from its legal predecessor at a time when this predecessor was the thing’s owner. This concerns a
situation wherein ownership is transferred to another person and then the
previous owner who transferred the ownership withdraws from the agreement. The transferor thus ceases to be the owner ex tunc. This issue is
questionable, although the good faith of the final transferee is decisive in
this respect.78 On the other hand, the Supreme Court came to the opposite
conclusion in decision R 44 / 2000. Under this decision, the transferee acting in good faith did not become the owner.79
Another specific issue is that of several legal reasons for revindication.
This concerns a competition of legal actions for the release of a thing, un75
76
77
78
79
See R 22 Cdo 2162 / 99.
See Spáčil J., op.cit. in Fn. 52, 691 and R 2 Cdon 1794 / 96.
See also Spáčil J., op.cit. in Fn. 52, 692.
This opinion finds support in the decision of the Czech Supreme Court 20 Cdo
1186/98, and in the decision of the Constitutional Court II. ÚS 77/2000.
See also Spáčil J., op.cit. in Fn. 52, 696.
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der general regulations on the protection of ownership, on one hand, and
under special regulations in restitution laws, on the other hand. Under a
decision of the Supreme Court that was confirmed by a judgment of the
Constitutional Court, the authorized person who enjoys protection under
special restitution laws may not claim protection under general regulations,
including in the form of ownership title determination.80
(c)
Damages and restitution
In case of violation of ownership rights, it is possible to seek (petitory)
protection through a lawsuit for damages. Under the general provision of
the Civil Code (§ 420) a right to damages presupposes existence of a detriment caused by unlawful conduct of another person and existence of fault
of this person, i.e. in our case it means a violation of an absolute right (i.e.
the ownership). However, these claims do not occur frequently in practice.
They are in fact of an obligational nature, which nevertheless are grounded
in an absolute right, i.e. ownership.
The protection of the ownership can be also based on unjustified enrichment. It especially concerns the unjustified use of a thing. It is a socalled “usufruct condictio”. The use (enjoyment) has to be viewed lato sensu.
It must be unjustified, i.e. it must contradict an existing right. In this case,
the owner has a claim to physical restitution of his property and is entitled
to claim the value of the unjustified use of the thing, which represents
monetary compensation (damages) if the thing cannot be restored.
The question of a time limitation (statute of limitations) for this kind of
protection has been disregarded so far. There is no explicit legal provision
concerning this question. There are no published cases. Doctrinal suggestions are rare, but the tendency is clear.81 It is recognized that the owner can
claim (cumulatively) both recovery of physical control and damages. Under
the general rule of tort liability, a claim for damages requires an unlawful
act (interfering with the ownership right) and fault.
Based on the rules on unjustified enrichment (§ 451f), the owner is entitled to claim the enrichment caused by the unjustified use. The use must
contradict the exclusive right of the owner. The owner may claim physical
restitution of the property; however, if this is impossible, he may claim a
monetary compensation. If the enriched party acted in good faith, he shall
pay the market value. In the case of bad faith, he has to reverse all benefits
obtained (§ 458 par. 2).
80
81
See R Cdo 1222 / 2001.
Spáčil J., op.cit. in Fn. 70, 235.
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283
Self-help
A person whose right is immediately threatened or violated may seek selfhelp protection in extraordinary cases. Self-help is not an obligation and
one who has not used such protection suffers no legal detriment. The provision of § 6 of the Civil Code does not restrict self-help protection to the
protection of ownership titles; it may be sought by anyone who faces an
immediate encroachment of his right or title, including ownership titles.
Self-help82 is legal if the threat is immediate and the self help is proportionate to the threat. An interference of a right or title is deemed immediate if the right or title is to be immediately encroached, or if it has been
encroached already. It is deemed proportionate if it does not cause injury in
excess of the injury that is threatening or coming into existence.
Self-help protection against an authorized intervention is ruled out.83
However, much more restrictive opinions exist. According to these restrictive voices, proportionate self-help protection may be sought only when
help from the public authorities cannot be effectively obtained.84 These
voices also say that proportionate self-help protection may be sought solely
by persons facing the threat.
2.7.
The law grants a lawful possessor the same rights as an owner – in particular,
as the law states in § 130 par. 2,85 he also has a right to fruits and benefits
for the duration of his lawful possession.
A possessor may therefore seek both an injunction and revindication.
He indubitably has an entitlement to protection pursuant to § 417.86 It is
clear that the right to protection itself is held not only by a possessor, but
also by a detentor (see § 126 par. 287 – a similar right of protection also
belongs to a person who is entitled to have a thing on his person). The
example given of a revindication suit (see § 126 par. 1, first sentence) means
that in the same way as the existence of a negatory suit is deduced, a possessor has the possibility of a suit called an actio publiciana.
In the light of the above-mentioned § 126 par. 2 and § 130 par. 2, it is
clear that a possessor also has the right to take self-help actions. The fact
82
83
84
85
86
87
See Eliáš K., op.cit in Fn. 52, 580.
See Knapp V. et al., op.cit. in Fn. 31, 219, 220.
See Eliáš K., op.cit. in Fn. 52, 99.
See Fn. 56.
See Fn. 71.
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that § 126 par. 2 mentions “analogous rights”, changes nothing in the essence of such rights. The provisions should be merely adapted by appropriate interpretation of the position of the possession and the possessor.
The possessor may seek preliminary protection from state an administration authority as described above in the case of the owner. Petitory
protection is represented by an action of lawful possessor. This legal action
serves, in the first place, the owner who cannot prove his ownership or, in
the second place, when the proof of his ownership would be unreasonably
cumbersome.
Conditions for the claim of a lawful possessor differ from those a lawful owner in two ways. The possessor’s claim is the action resulting from a
better right. For this reason it is impossible to exert it against the owner, or
even against another lawful possessor.
2.8.
Protection of detention
Although there are some reservations, it is predominantly believed that
the detentor may enjoy under Czech civil law, in addition to proportionate
self-help protection and public protection, court protection through legal
actions analogous to ownership actions. Authorized detentors may thus file
actions for the release of a thing or negatory actions.88
2.9.
Commentary
The development of civil law in the Czech Republic in the last 50 years is
an extraordinary example of a change in the legal order, legal conscience,
and values, and at the same time a remarkable testimony of the controversy
between law and societal conscience.
The 1950 Civil Code lags behind the fundamental changes in values
and behind the conscience of the society by preserving old forms of the
ABGB. Although, outside its regime, private ownership and the terms of
ownership rights and rights in rem were turned on their heads, the Civil
Code retained some traditional institutions dating back as far as to Roman
law. This contradiction was rationalized by the existence of lower classes
and thus the necessity of formal respect of ownership. However, such a situation did not really exist anymore due to the expropriations and confiscations that took place in the five years before this formal statutory change.
Within this relatively formal and traditional concept, the abandonment
of the traditio principle, and thus the two-stage regime of transfer of owner88
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ship by agreement, seems striking. The reason behind this revolutionary
move remains a mystery, with the rhetoric that the current provisions were
a mangy construct convincing no one. The important thing is that institutions such as possession, prescription and lien, as well as the classic forms
of protection of ownership (possession and detention) survived – at least
formally.
The revolutionary changes implemented in the politics and ideology
were reflected in the law only after 1964, though in relatively an “innovative manner” that does not have any parallel in other European socialistic
laws, save for the civil code of the German Democratic Republic from 1975.
The Civil Code from 1964 omitted all the classic and traditional institutions of rights in rem, such as possession, prescription, detention, etc. By
the development of the ownership right itself, a total pulverization thereof
occurs, which had been commenced by the Civil Code of 1950 anyway. By
the effective abolition of private ownership, the fundamental principles of
the ownership right and the rights in rem, as a whole, were abnegated.
The return to the principle of acquisition of ownership by contract, and
thus the restoration of the two-stage regime, including the traditio principle,
survives this communist destruction of the law of rights in rem in a similar
fashion as did abandonment of the principle of “translational effect” of the
underlying obligation (i.e. the principle that the contract itself transfers
the property) in 1950. However, in the case of an original acquisition, the
fundamental institutions of the more traditional European legal culture,
based on the Roman tradition, are basically repudiated.
The current situation is affected mainly by the following substantial
factors:
1. Continuing formalism in law. Neither judicature nor doctrine has been
able to disengage itself from the layers of a positivistic, even formalistic,
approach to the law. As a consequence, neither has been able to overcome the basic contradictions between theory and practice: neither has
been able to interpret the fundamental institutions of the law regarding
rights in rem (property law), although they exist in the positive law, or
both still formulate such with a warp of the communist law.
2. The disputes between old and new: The positive-law regulation is marked
by a compromise that is prima facially contradictory. The compromise
consists in the incorporation of two expressed irreconcilable concepts.
The positive regulation is a silent witness of inconsistent legislation.
New ideas have been “engrafted” on an old text, yet they do not stand
on the old “ground”. Thus, a weird conglomerate is often created, the
interpretation of which is possible only using the teleological method.
It is noteworthy that even a relatively modern text introduced after the
revolutionary transformations of 1989 is interpreted in line with the
old approaches.
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3. Undeveloped law of rights: In comparison to other national legal cultures,
including those that have been newly developing after liberation from
the communist self, the Czech law of rights in rem seems to be relatively
undeveloped. It suffers from the above-mentioned conflict of contradictory principles, the dispute over which is not decided with sufficient
clarity. This is because neither the judicature nor the doctrine has a
sufficient background of ideas and, no doubt, also because of the remaining culture of the formalistic approach to the law. It is noteworthy
that both judicature and doctrine draw mainly from sources older than
60 years (often older than 100 years), without following, in this case,
the Austrian developments.
Noteworthy examples of deductions based on the above-mentioned contradictions include interpretations of the protection of detention and possession, interpretations of bona fide in acquisition of ownership, and the
problems regarding the protection competition.
(a) No doubt § 126 par. 289 allows protection of possession and detention
in the same manner or analogically to the protection of the right of
ownership itself. Yet, the doctrine provides just a very hesitant opinion
on the issue and the judicature neglects these problems totally.
(b) In the case law, a verdict of the Supreme Court still has importance,
according to which verdict a person who acquired a thing from a seller,
but who eventually forfeited this ownership with respect to invalidity
of the purchase agreement between the seller and the original owner,
is not protected – not even based on bona fide. This approach is just
a consequence of the continuous disparagement of ownership and an
insufficient respect for the protection of an owner. Also, the persisting “extraneousness” of the category of bona fide plays a role and judicature, as a consequence of the lack of the doctrine’s fundamental
opinions, still does not know what to do with it.
(c) The case law does not allow for the possibility of concurrence of protective instruments based on different legal bases of protection. Thus,
it rules out the possibility of the general protection as a concurrent or
additional base, compared to a special protection under the acts on
restitution.
2.10.
Draft
The Draft provides for possession in §§ 901-923; ownership is provided for in
§§ 924 through 1077, with §§ 1078 and 1228 providing for so called jura in re
89
See Knappová M., op.cit. in Fn 49. 580.
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aliena, restrictions on ownership rights, fences, necessary roads, dispossession and restriction on, and protection of, ownership rights (Division 1).
Acquisition of ownership rights is provided for in §§ 956 through 1017:
regulated issues include appropriations and discoveries of hidden things,
rescue of another party’s things, natural accruals, artificial accruals, buildings, mixed increases and prescription, transfer of ownership rights, namely
transfers of ownership rights to movables, securities, real estate, and acquisition of ownership rights under a public authority decision. Sections
1018 through 1077 provide for co-ownership; §§ 1078 and 1228 provide for
rights in rem in things of other persons, including, e.g. the right to build,
easements and pledge rights.
3.
Rights to use and to acquire (rights quasi in rem)
Certain rights to use and to acquire are at the borderline between property
rights and obligations. The lease contract is classified unambiguously as an
obligational contract. The lessee acquires a right that consists in using or
utilizing the leased thing.90 However, despite the fact that in theory a lease
has a purely obligational nature, it is obvious that the lessee has also several
rights against third persons.
The lessee is protected against unlawful third-party interferences. His
position is that of detentor (see 2.3. supra). The lessee has the right to benefit from the leased thing, although he is aware that he is not the owner. In
relation to the subject of the lease, he knowingly exercises merely a power
derived from the owner’s original power – to the extent allowed by the
owner.91 On the condition of compliance with the owner’s determination
of the time, and of other components of the lease, the lessee is a rightful
detentor of the subject of the lease.
It should be noted that the concept of a lease agreement in the Civil
Code reveals also in-rem qualities. The lessor (of real property) has a security interest in movable property situated on the leased premises, which
belongs to the lessee or other persons who live with the lessee, to secure
the rent (§ 672). The lessee, as a detentor, has at his disposal similar means
of protection as a possessor. This results from the fact that, according to
the Czech approach, the lessee, as a detentor, “possesses” the lease-right
and thus has the status of possessor. The lessee enjoys direct protection in
court as he is entitled to use actio publiciana (possessory action). Also in this
respect, the lessee’s rights are in principle identical with those of a possessor.
So, the lessee can claim physical control over the leased thing (revindica90
91
See § 665 of the Civil Code and Hulmák M., op.cit. in Fn. 52, 1894.
See in Fn. 31, 294.
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tion), has the cease-and-desist remedies concerning interferences with the
leased thing (actio negatoria), and definitely is also entitled to claim damages against third persons who unlawfully interfere with his right.
However, these in-rem instruments are not used frequently in practice.
They are rarely dealt with in literature and the theory probably does not attach importance to them. The problems of interferences with lessee’s rights
are, as a matter of fact, solved within the framework of the lease contract
as an obligational question. In this sense, the lessee does not intervene directly against the disturber, but turns to the lessor whose duty is inter alia to
maintain the subject of the lease in a condition fit for the agreed use. Even
the damage incurred as a consequence of the third party interferences can
be claimed against the lessor.
A similar position is that of the bailee, in case of a contract of bailment
(§§ 747 et seq.), who takes over a movable thing from the bailor and assumes
an obligation to take proper care of it. Even a provider of services related to
things of his customers is in the position of a detentor, with corresponding
obligations of protection of the entrusted things. This can be deduced e.g.
from § 433, according to which the accommodation provider is liable for
damage caused to things that have been brought onto the accommodation
premises. Also, this is generally applicable to a purchaser who concludes a
purchase contract with the reservation of ownership.
4.
Scope of rules of transfer of movables,
relevant definitions
4.1.
Things
Czech law does not define the term “things”. In theory, things are defined as
corporeal objects (res corporales) that can be controlled and used, i.e. that
serve the needs of people. Both features must be present simultaneously,
and whether they meet such criteria is assessed using an objective measure.
A thing may also consist of several corporeal things, i.e. a collective thing
(universitas rerum), which may be the subject of, amongst other things, a
pledge (§ 153 par. 1).
In this case, a collection of things, a collection of proprietary rights,
and in particular of receivables and obligations, gives rise to another term –
property. At other times, however, property is understood to be a collection
of things and proprietary rights, and not proprietary obligations (e.g. inter
alia §§ 175d, 175m of the Civil Procedure Code).92 Things, in this sense,
previously did not include enterprises, i.e. a collection of tangible as well
92
Občanský soudní řád (Code on Civil Procedure), No. 99 / 1963 Coll.
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289
as personal and intangible components of business (§ 5 par. 1 of the Commercial Code). Nowadays, however, this is not the case. The amendment
of the Commercial Code in 2000 also qualifies an enterprise as a collective
thing.93
The regime applying to securities was a matter of dispute. Securities
were considered things in view of their tangible underlying basis. However,
this ceased to apply with the creation of dematerialized or book-entry securities. The protracted disputes were resolved by Act No. 362 / 2000 Coll.
(§ 1 par. 2), under which securities are governed by the legal regime of
movable property.
The fundamental classification of things is their division into immovables (which are not the subject of our consideration) and movables.
Movable property can also be divided into fungible and infungible things
(goods). The division of things into fungible and infungible practically
coincides with the division into things determined by type (generically)
and individually (specifically). The former are things that are determined
by features of their type, according to number, measure or weight. Specifically determined things are individualized by features, which mean that
they cannot be substituted by other things. Things are further divided into
consumable and non-consumable things, even when the enjoyment thereof
gradually wears them out and often exhausts them entirely.94 The term
“things” is furthermore divided into things that are in real terms divisible
and those that are indivisible, where in the latter case they lose their use
upon the last real division.95
The Civil Code does not define movables. It is possible to define them
directly as comprising items that are not real property (immovables), which
is defined as land and buildings connected with the ground by a fixed foundation (§ 119 par. 2).96
Accessories to a thing are things that belong to the main thing and, at
all times, to the owner thereof, by whom they are determined to be permanently used with the main thing. Accessories are therefore characterized by
the fact that one thing is the main thing and the other thing is “ancillary”,
i.e. an accessory. Accessories must belong to the owner of the main thing
and must be determined for permanent use therewith (§ 121 par. 1).
Accessories may be separated from the main thing, although the things
may be technically connected. The common fate of the main thing and the
accessories thereto during transfer of ownership has not yet been clarified.
93
94
95
96
See Knapp et al., op.cit. in Fn. 31, 227.
See Švestka J., op.cit. in Fn. 31, 649 et seq.
§ 119 par. 2: Immovables (real estate) are plots of land and buildings (structures)
connected to the land by a solid foundation.
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A long prevailing opinion97 assumes that during contractual transfer it is
necessary to duly identify the accessories to a thing in addition to the main
thing itself; otherwise, such a contract is supposedly invalid on the grounds
of indefiniteness or, as the case may be, incomprehensible. Such practice
was only confirmed later by a decision of the Supreme Court of the Czech
Republic98, although it was subsequently amended by a verdict of the same
court99 under which accessories share the fate of the main thing, without
consideration to whether the parties to the contract directly identified such
accessories or merely stated that the thing is transferred with all accessories
thereto, or even omitted to mention the accessories at all in the contract.
However, this decision is not accepted without reservation in view of another decision100 under which accessories must be explicitly included in the
expression of the contracting parties in regard to the scope of accessories.
The parts of a thing (as opposed to the accessories) comprise everything
that pertains to the thing by its nature and cannot be separated from it
without thereby in some way impairing it (§ 120). In contrast to accessories, a part of a thing is not an independent thing in the legal sense. The
parts of a thing therefore comprise everything that pertains to the thing by
its nature and cannot be separated from it without thereby impairing the
thing as whole.101
4.2.
Things in the Draft Civil Code
In the Draft Civil Code, a distinction is introduced between tangible and
intangible, and movable and immovable things. At the same time, it is
permissible for a collective thing to include both tangible and intangible
things (see § 470 of the Draft).
97
98
99
100
101
See R 7 / 1987.
See R 2 / 1997.
See R 18 Cdo 133 / 2001.
See R 31 Cdo 2772 / 2000.
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Part II:
5.
System of transfer of ownership
5.1.
Basic characteristics and general overview
According to Czech doctrine,102 acquisition of an ownership right means
a person becomes the owner of a specific thing and holder of a subjective
ownership right, wherein the thing had another owner and another holder
before, or there was no owner at all.
The law in force does not know so-called things with no master (res
nullius), i.e. things that do not belong to anyone. As the law in force does
not know this term, the only case of so-called original acquisition (when
there was no previous owner at all) is the case of a thing newly created, i.e.
a produced thing, in particular.
Also, the Czech law distinguishes between acquisition of ownership
among living persons and in the event of death. In the latter case, acquisition of ownership is possible through inheritance only, as deed of donation
for the case of death is invalid (§ 628 par. 3).
As to the origin of ownership, we distinguish between derivative acquisition and original acquisition. The derivative ownership means that the
owner of the thing derives its ownership right from the ownership right of
its legal predecessor, i.e. it becomes an owner of the thing as a consequence
of the fact that the existing owner transfers ownership to it. In such event,
we talk about a transfer of the ownership right or, to put it differently,
about acquisition of an ownership right by virtue of the preceding owner’s
will.103
There is a special type of derivative acquisition of ownership, where a
thing was in the ownership of someone else, yet it passed to the possession
of the acquirer in a manner other than transfer.104 In such event we talk
about passage of ownership right. For example, this happens in the event
102
103
104
See Fn. 31, 294.
See the discussion mentioned by Spáčil (op.cit. in Fn. 52, 750 et seq.), which did
not succeed to reach a satisfactory result.
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of acquisition of an ownership right based on a public auction.105 However,
recently this has been disputed and judicature inclines to the concept that
this is also a transfer of the ownership right.
5.2.
Unitary transfer
Basically, the acquisition of ownership in a derivative manner is regulated
by the uniform concept of a two-stage transfer.
The general principle that applies to both the transfer of movables and
immovables is the so called two-stage procedure of transferring the ownership right (titulus et modus). At the first stage the agreement (contract) is
made (titulus – causa), i.e. the obligation between the transferor and transferee arises, this being the duty and obligation to transfer the ownership
right to the transferee.
However, by entering into a valid agreement (contract), the transfer of
the ownership right is not finalized. It is finalized at the end of the second
stage (modus), which is – in the case of movables – traditio (delivery, handing over); and in the case of immovables, registration of the ownership right
and title in the appropriate land register. Basic “traditio principle”, applicable for movables, is governed by § 133 of the Civil Code.106 Accordingly, in
Czech jurisdiction there applies the “causal concept” requiring for transfer
of movables a valid contract, on one hand, and “traditio”, on the other. This,
however, does not apply without reservation. There are several exceptions.
There is a unitary concept of transfer of ownership. This concept applies primarily to the main aspects of the transfer of ownership, but also, in
principle, to all types of obligations where the transfer of ownership may
105
106
See Knapp V., O příklepu a také o právní filozofii (On the auction and also on legal
philosophy), Právní rozhledy 229; Müller Z., Musí být dražba smlouvou?(Is the auction an agreement?), Právní rozhledy 2001, 599; idem, Pojetí dražby ve světle soudní
judikatury (The concept of the auction in the light of the case law), Správní právo
2002, 345; Eliáš K., Znovu o aukcích (Again about auctions), Právní rozhledy 1995,
106; Havel B., Nad jedním zákonem aneb peripetie kolem dražby (About one act or
difficulties of the auction), Právní rozhledy 2001, 432; Spáčil J., Poznámka k nabytí
vlastnictví k věcem vydraženým při prodeji ve veřejné dražbě (Comments on acquirement of the ownership of the movables purchased during a public auction), Právní
rozhledy 1995, 140; idem, Právní povaha dražby podle zák. č. 427/1990 Sb. a její hodnocení v odborné literatuře a judikatuře obchodního kolegia Nejvyššího soudu ČR
(Legal nature of the auction pursuant to the act No. 427/1990 Coll. and its assessment
in the doctrine and case law of the Supreme court), Právní rozhledy 1997, 28; idem,
Ještě jednou o dražbě (Again on the auction), Právní rozhledy 1997, 372.
See Fn. 107 infra.
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be involved. Some types of agreements are governed by specific provisions.
Nevertheless, distinction must be made, in principle, between the field
governed by the Civil Code, on the one hand, and the field governed by
the Commercial Code, on the other.
5.3.
Causal traditio system
The causal traditio system requires a valid obligation. The fundamental
regulation is contained in the part of the Civil Code governing rights in
rem, i.e. the ownership right (§ 133).107 As transfer is made upon a contract,
further regulation of the passage of ownership is also included in the law of
securities. This includes the Civil Code – in the case of purchase agreement
(§ 590),108 but also in the case of selling in a (retail) shop, which is a special
remnant of the communist law conforming also to the European concept
of consumer protection (§ 614).109
As the purchase agreement is also regulated in the Commercial Code,
transfer of ownership rights is regulated also on this level, namely in §§ 443
et seq. of the Commercial Code.110 Rights in rem or, as the case may be,
107
108
109
110
§ 133: Where a movable thing is transferred on the basis of a contract, ownership
(title) to such thing is acquired by the hand-over of the thing, unless other statutory
provisions regulate otherwise or unless the parties have agreed differently.
§ 590: Unless it is agreed otherwise, the risk of accidental destruction or accidental
impairment of the object of sale and its profits (fruits) shall pass to the buyer at the
time when he acquires ownership title to such object. If the buyer acquires ownership
title to the object of the sale before it is delivered to him, the seller shall have the
duties of a bailee (custodian) until the object is delivered to the buyer.
§ 614 par. 3: “Ownership title to a thing shall pass to the buyer when he takes over
the thing purchased. In the case of distance sale (when ordered goods are sent as
consigments), ownership title to the thing being bought shall pass to the buyer when
he takes over the thing at the place specified for its delivery. In the case of self-service
sale (in supermarkets) the transfer of ownership title to the buyer of a chosen thing
shall occur at the moment he pays the price of the chosen goods”.
§ 443: (1) The buyer acquires ownership title to the goods as soon as the delivered
goods are handed over to him.
(2) Prior to taking delivery of the goods, the buyer acquires ownership title to the
goods in transit when he acquires the right to dispose of the consignment.
§ 444: The parties can agree in writing that the buyer will acquire ownership title to the
goods prior to the time specified in § 443, provided that the contract concerns goods
identified individually or identified by type and which, at the time of transfer of the ownership title, are adequately marked so as to be distinquishable from other goods, in a manner agreed on between the parties or communicated to the buyer without undue delay.
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transfer of ownership, are also provided for in laws other than the Civil
Code. This applies to, in particular, ownership of rights embedded in securities or, as the case may be, ownership of securities.
According to the Civil Code / 1950 (§ 111 par. 2), traditio was required
for the transfer of ownership to generic things (as opposed to the transfer
of individually specified things). The Civil Code / 1964 dismissed such a
concept, and both individual and generic things fell under a single regime –
transfer by handing-over (traditio). This concept allegedly better met the
interest of the working people.111
There is relatively broad party autonomy in the transfer of movables.
This is expressly indicated in some provisions of the Civil Code (see § 133
par. 1), which state: “if a movable is transferred under an agreement, ownership is acquired when the movable is handed-over, unless a legal regulation
stipulates or the parties agree otherwise”. The provision “legal regulation”
has been mentioned in the section on purchase agreements (see 5.6. infra),
e.g. in particular provisions on sale in a shop. However, such regulations
are not restrictive to a great degree.
Similarly, § 444 of the Commercial Code provides for the possibility
to determine the time for the transfer of ownership by agreement of the
parties in some cases. If a means of consensual transfer has been chosen
by the parties to the contract of sale under the Commercial Code and
generic goods are to be transferred, the ownership title cannot pass from
transferor onto transferee before the individualization of these goods takes
place.112 This rule comes directly from § 444113 of the Commercial Code, in
accordance with which the parties can agree in writing that the buyer will
acquire ownership title to the goods prior to the time of their handing-over,
provided that the contract concerns goods identified individually or identified by type and which, at the time of transfer of the ownership title, are
adequately marked so as to be distinguishable from other goods, in a manner agreed on between the parties or communicated to the buyer without
undue delay. Thus, as for the nature of the “act of identification”, it can
111
112
113
§ 445: The parties may agree in writing that the buyer will acquire ownership title
to the goods later than specified in § 443. Unless such a reservation of ownership
title indicates otherwise, it is presumed that the buyer is to acquire ownership title
to goods when he has paid the selling price in full.
§ 446: The buyer acquires ownership title even if the seller is not the owner of the sold
goods, unless at the time when the buyer was to acquire ownership title to the goods,
he knew or ought to have known or could have known that the seller was neither the
owner nor authorized to dispose of the goods for the purpose of selling them.
See the reasoning to the Civil Code 1964.
See Fn. 110.
See Fn. 110.
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be undertaken either as a unilateral act of transferor (however there is an
additional requirement of subsequent notification to the transferee without
undue delay) or under agreement of the parties.
With regard to the moment of passing of risk in relation to individualization of generic goods, the analogous rule shall apply as in the case
of passing ownership and, thus, the risk cannot pass from transferor onto
transferee before the individualization of the goods. Specifically, the risk of
damage to goods cannot pass onto a buyer who has not received the goods,
unless the goods are clearly marked and differentiated for the purpose of
the contract (mainly by marking the goods, by the shipping documents, or
by a specification sent to the buyer).114
So, the requirement of individualization comes directly from the law
and, furthermore, the Commercial Code exemplifies several ways of individualization (§ 458). Apart from this, the parties are not restricted in choosing any other way in their agreement. The goods must be also adequately
separated and distinguished from other goods of the same type at the time
of the transfer of the risk of damage, if the parties agreed that the risk of
damage to goods should pass prior to the time of their handing-over. As can
be seen, the general rule of individualization, in case of generic goods, is
very abstract and the party autonomy principle plays an important role.
All this clearly indicates that parties are basically free to agree on additional forms of transfer at their discretion, to determine the moment when
the transfer shall be effected, to condition the transfer on fulfilment of
special conditions, to establish a constitutum possessorium, etc. There is no
doubt that the contractual provisions must comply with the fundamental
principles of private law, such as good morals.
This approach is not here being criticized and it seems it could not be
amended in a substantial manner without being detrimental to both the
parties and the legal relationships, under usual circumstances.
5.4.
Suitable types of obligations
The Civil Code stipulates a set of legal facts upon which ownership may be
acquired. However, the enumeration is incomplete as it refers also to legal
facts stipulated by other regulations. Ownership of a thing may be acquired
by a contract of purchase, a donative or other contract, by inheritance, by
decisions of public authorities, or on the basis of other facts (§ 132 par. 1).115
114
115
See Plíva S., in: Pelikánová J., Obchodní právo, vol. 2, 2nd ed., Praha 1998, 259, 261.
See § 132 par. 1: Ownership of a thing may be acquired by a contract of purchase,
a donative contract or some other contract, by inheritance, by decision of a state
authority (agency), or on the basis of other facts laid down by law.
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In addition, the Civil Code rules a whole range of other contracts according to which title may be acquired, such as contract for work.116
Although the basic provision of § 132 par. 1117 mentions purchase agreements and donative contracts only, the passage can be applied to any other
contract leading to transfer of an ownership right. Typically, this is the case
of a contract for work. However, regulations of contracts not listed in § 132
par. 1 do not include special provisions on passage of ownership. Unless the
parties stipulate otherwise or, as the case may be, regulate this matter in a
separate contract, the general provision of § 133118 shall apply.
Thus, there are certain fundamental rules regarding the transfer of ownership:
(a) It is a causal transfer. The contracts are based on a causal principle and
not on the principle of abstraction. The basis of contractual transfer
consists in a legal reason (iustus titulus).119 This is also the first of the
two stages of the transfer. Unless the parties stipulate otherwise, a
contract constitutes a legal reason for the transfer. The contract has
an obligational meaning and not a transferral (translational) effect.
It binds the alienor in the sense that acquisition of the thing is to be
passed to the acquirer by virtue of another act consisting in a manner
of transfer of ownership, which is recognized by the law and through
which he is obliged to transfer the ownership.
(b) Transfer is not a separate agreement; it is a two-stage process and happens by traditio only. In addition to a legal reason, there must be a
manner for acquiring the ownership (modus acquirendi dominii).
In this case, whether the subject is movable or immovable is not determinative, nor is the question of who, at the time of acquiring title, had the
object in his possession.
As regards the acquisition by decisions of public authorities court
decisions and decisions of administrative authorities are relevant. The
ownership is transferred (“is acquired”) on the day stated in that decision. If the day is not stated there, the acquisition happens on the day
when the decision comes into legal effect.120 The act of delivery is – as
to the transfer of ownership – irrelevant. Examples can be a) the case
of so called illegal building, which is the case where someone erects a
building on someone else’s plot of land without having any right to do
so. Based on the action filed by the owner of the land the court may rule
116
117
118
119
120
See Part III on original acquisition, infra.
See Fn. 115.
See Fn. 107.
See op.cit. in Fn. 31, 297 f.
See § 132 par. 2 of the Civil Code.
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that the owner of the building has to remove it at his own expense.121
When somebody in good faith processes somebody else’s thing, the shares
of both persons are equal and they fail to agree as to who becomes owner,
the court shall rule on this.122 When somebody processes somebody else’s
thing, although he knows that he is not its owner, the court may ruleupon the petition of the owner – who shall be the owner.123 If – in the
case o termination of co-ownership – no agreement among the co owners as to who shall be the exclusive owner is reached the court has to
decide.124 If there is no agreement on settlement of matrimonial property
the court shall rule.125
In theory the ownership can be acquired by operation of law. In this way
nationalization happened. The owner became the state. This was the case
of the “socialization” period after 1945. After 1989 certain number of laws
has been passed based on which the property has been transferred from the
state in favour of cities, towns and districts.126
As to the inheritance, there are two general principles which are relevant for the transfer of ownership from the bequeathor (descendent): principle of universal succession and delational principle. The first one means
that the heirs enter the whole decedent’s property as such, including its
rights and debts. The second one means the transfer occurs by the fact of
decedent’s death directly. The heirs do not need to accept their heritage.
As a consequence of this principle everybody who can inherit according
to the law are co-owners of immovables included in the heritage until the
termination of the inheritance court proceedings.
5.5.
Defects affecting the transfer of ownership
5.5.1. Acquisition by a bona ﬁde acquirer
This situation is not regulated by the general rules of the Civil Code. Following the principle nemo plus iuris transfere potest quam ipse habet, the
prevailing opinion in the jurisprudence is that even a bona fide acquirer
121
122
123
124
125
126
See § 135c par. 1 of the Civil Code.
See § 135b par. 1 of the Civil Code.
See § 135b par. 2 of the Civil Code.
See the Act. No. 219 / 2000 Coll., on property of the Czech Republic and its functions.
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cannot become owner if the transferor was not owner and, therefore, was
not able to transfer ownership.127
The Commercial Code holds quite the opposite position and contains
explicit provisions on acquisition from a non-owner in § 446 (dealing with
sales contracts). It presupposes an ordinary acquisition by the buyer even
if the seller is not the owner of the goods, unless the buyer was not a bona
fide acquirer, meaning he knew or ought to have known that the seller was
neither the owner nor authorized to sell them.
The key issue is the difference between the bona fide standard in the
Civil Code, particularly for a consumer,128 and in the Commercial Code. In
the Commercial Code, an acquirer acquires and retains the ownership if he
did not know nor could not have known, at the moment he was supposed
to acquire the ownership right, that the seller was not the owner.
5.5.2. Lack of personal capacity
If a contracting party is a person without competence to do juridical acts,
such contract is absolutely invalid: the title has never been transferred
on the transferee, since “a juridical act is null and void if the person who
undertook it lacked the legal capacity”.129
Also the contract is absolutely invalid, if it is entered into by a person
acting under a mental disorder which “renders that person incapable of
engaging in such act in law”.130
5.5.3. Defects of a party’s will: coercion
Any juridical act must be made of free will and in earnest, in a definitive and
intelligible manner, otherwise the juridical act is absolutely invalid.131
127
128
129
130
See Knapp V., op.cit. in Fn. 31, 301. See e.g. Spáčil J., op.cit. in Fn. 52, 759. The
solution of a case where, after a sale agreement is executed, the title of the transferor
turns out to be void, as the previous transferor claimed succesfully avoidance, could
be very questionable. The situation both in doctrine and case law is not clear (see
Spáčil J., op.cit. in Fn. 52, 767; Švestka J., op.cit. in Fn. 52, 419 et seq. and R 22
Cdo 1186 / 98 on the one side and R 44 / 2000 with opposite view on the other side.
The Constitutional court ruled – R II.ÚS 77 / 2000 – that, when the ownership has
been acquired once in good faith it cannot be invalidated later, even if the previous
title has been invalidated).
See Škárová M., Commenting on § 616, op.cit. in Fn. 52, 1088.
§ 38 par. 1 of the Civil Code.
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A person is not acting according to his or her own free will if the behaviour is a result of coercion – either of direct physical violence or emotional
coercion, especially unlawful threats. Here, the will of the actor is replaced
by the will of the coercer. A threat means that the person exposed to it is,
as a result of the matter and intensity of the threat, forced to act through
the evocation of fear. In such a case, any contract is concluded according
to the dictate of the coercer (who in many instances is the other side of
the contract), whereas such a contract would never have been agreed upon
absent such fear.
A threat is unlawful if the specific action, in order to coerce the other
party, is an action that may not legally be taken to enforce the right in
question. The actions of a person who insists on the conclusion of a contract with the argumentation that there is no other way of solving his/her
financial difficulties, or who insists on settling an existing debt with partial
payment, are not unlawful threats.132
In the case of a coerced contract, a transfer of ownership never takes
place. The contract is absolutely invalid (effect ex tunc).
131
5.5.4. Mistake – relative invalidity
Free will is lacking if a mistake (error) is based on an erroneous fact being
decisive for conclusion of the contract. A juridical act is also invalid if
undertaken (mistakenly) by a party on the basis of an erroneous fact that
is decisive for making the act in question, if the other party to the juridical act either mistakenly induced such error or should have been aware of
the mistake. An act in law, a juridical act, is also rendered invalid if such
mistake (error) was intentionally induced by the other party.
However, an error in motive does not invalidate the act concerned,
nor does an essential error caused by negligence, carelessness or deliberate
intent. If it was caused deliberately it is not relevant if it is an essential or
non-essential error. The Civil Code addresses this error of free will only
with relative invalidity. It means that, for example, a contract transferring
title to a movable asset is considered legally enforceable until such time as
an action is lodged, by the affected contracting party, seeking to have the
contract declared null.
The relative invalidity of a legal transaction does not arise by operation of law.133 Rather, a relatively invalid juridical act has the same legal
131
132
133
See § 37 par. 1 of the Civil Code
See Švestka J., op.cit. in Fn. 52, 336 and 33 Odo 1416/2005.
See § 40a of the Civil Code: Where the cause of invalidity of an juridical act concerns the cause pursuant of the provisions of §§ 49a, 55, 140, 145 par. 2, 479, 589,
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consequences as if it were valid, unless – and until – the relative invalidity
is invoked. Specifically, the relative invalidity takes effect when the unilateral declaration, expressed by the party to the contract who is claiming
the invalidity, is received by the other party to the legal transaction. The
relative invalidity then arises ex tunc, i.e. the contract is deemed invalid
from the time of its conclusion. The right to invoke the relative invalidity
is lost, however, if such juridical act is subsequently approved, if the reason
for the invalidity has subsequently ceased to exist, or if it is not invoked
by the entitled party. The party who caused the invalidity may not claim
it – only the affected party.134
Aside from resulting in the invalidity of the transfer of title ex tunc, this
also results in the exchanged values (e.g. delivered movable assets and accepted purchase price) being considered unjustified enrichment.
5.5.5. Rescission (withdrawal)
The unilateral rescission of a contract is possible only under exceptional
circumstances and only if expressly allowed by law, or if such a withdrawal
is agreed upon by the parties to the contract.135 Legal grounds for rescission are generally stated in § 49 of the Civil Code, and apply to cases in
which a party has agreed to a contract under duress or under conspicuously
unfavourable conditions.136
Rescission from a contract is a unilateral legal act declared vis-á-vis the
other party to the contract. Its effectiveness requires neither the consent of
the addressee nor a decision of the court. As a result of the rescission, the
agreement is deemed non-existent with effect ex tunc, i.e. the agreement is
treated as if it were never concluded. If any performances had already been
performed before the contract was rescinded, they will be reversed under
the principle of unjust enrichment.
In the following, a couple of principles will be discussed in relation to
immovable property. These principles also apply, however, to the transfer
of movables by registration (sub. 5.7.) and may also apply to movables by
way of analogy.
The question of the effects of rescission became controversial in cases
where, based on the contract, the buyer’s right of ownership over immov-
134
135
136
701 par. 1, 775 and 852b par. 2 and 3, the juridical act shall be deemed valid, unless
the person who is affected by such act claims the invalidity of the act concerned.
See § 40a of the Civil Code.
§ 48 par. 1 of the Civil Code (see Fn. 138).
The withdrawal from a contract also concerns cases of consumer contracts as a result
of European directives (§§ 53, 56, 57 a 613, 623 and 852 of the Civil Code).
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able property was entered into the land registry and, after the entry into the
register, the seller rescinded the sales agreement. Currently, the relatively
controversial practice prevails according to which the lawful legal title, on
the basis of which the buyer gained the right of ownership over the immovable, ceases to exist with an effective rescission of the sales agreement, and
the status quo ante is restored. A subsequent entry of the restored ownership
rights into the land registry has only a declaratory effect.
However, if the acquirer has in turn transferred the property rights to a
third person, after which his transferor withdraws from the initial contract,
more problems arise. According to the prevailing opinion in practice and
doctrine, the ownership rights of the initial transferor, who rescinded the
contract, are not restored. It should be noted that a different legal situation
would arise if the property rights to the real estate had never been transferred to the initial owner (transferor). In this case, a contract regarding
their transfer would be absolutely invalid according to § 39 of the Civil
Code. This opinion is based on the assumption that the withdrawal from a
contract can only have effects for the parties to such a contract, and does
not affect third parties.137
Law on contract rescission included in the Civil Code (see § 48)138 does
not relate to commercial relationships. Special arrangements of contract
rescission within the particular contract types in the Civil Code take precedence over the mentioned general rules.
In contrast, in commercial relationships the rescission takes effect at
the moment of rescission (ex nunc, § 341 of the Commercial Code). The
rules on contract rescission in the Commercial Code are non-mandatory,
which means that it is up to the contracting parties to modify the possibility and manner of rescission, respectively, if they exclude rescission of the
contract at all.
5.5.6. Condition precedent and resolutive condition
The Civil Code enables the parties to condition the legal consequences of a
legal act, e.g. a contract transferring ownership of movables. The creation,
modification or extinguishment of a right or duty (obligation) may be made
137
138
See 22 Cdo 1186/2000 a J. Švestka op.cit. in Fn. 52, 422; see also chapters 6 (Double
sales) and 7 (Selling in a chain).
See § 48 of the Civil Code (1) A contracting party may withdraw from (repudiate)
a contract only as this Code so provides, or if the parties have so agreed. (2) Such
withdrawal (rescission) renders the contract null and void from its inception, unless
some statutory provisions regulate otherwise, or unless the contracting parties have
agreed differently.
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dependent on fulfilment of a certain condition. This agreed condition must
be possible, otherwise it shall not be taken into consideration.
The law differentiates between two types of conditions: the suspensive
and the resolutive ones.
A condition precedent (suspensive condition) means that the legal effects of an agreement only set in upon the fulfilment of the condition. Up
to the moment of fulfilment, or non-fulfilment, a state of uncertainty exists.
The contract is valid and binding, but not yet effective. With regard to the
transfer of real estate, the condition precedent has to be fulfilled prior to
the decision regarding the registration.139
Concerning the resolutive condition, some distinctions must be made.
In general, a resolutive condition pursuant to § 36 par. 2 CC has retroactive effect. However, a resolutive condition for purchase agreements under
§ 610 CC becomes effective ex nunc, i.e. from the time of termination of
the agreement.140 The retroactive effects in this context mean that the
ownership has never passed and the acquirer becomes obliged to release
the thing from his unlawful possession.141
5.5.7. Consequences of unjustified enrichment
Legal acts are invalid if they lack a requisite that the law demands under the
sanction of invalidity. Legal consequences of defective legal acts are either
invalidity or impossibility of the legal act, or a right to unilateral avoidance
of (withdrawal from) the contract.
There is a principle in the Civil Code that invalid legal acts are invalid
absolutely, unless the law declares them relatively invalid. Absolute invalidity arises directly ex lege; courts take it into consideration ex officio; the
invalid legal act cannot be cured by subsequent approval of the parties
(ratification or confirmation) or extinction of the reason for invalidity.
Absolute invalidity takes effect ex tunc in the case of an absolutely invalid
contract for transfer of ownership: the transfer has actually never happened,
as if the contract has not been signed.
Invalidity of a contract, similarly as invalidity of any other legal act,
results in the right to claim surrender of the unjustified enrichment, i.e. of
every consideration provided according to the contract. This corresponds
to the practice of the courts: if a purchase contract is invalid for any reason,
every party is obliged to return to the other everything that was provided
to it according to the contract – and this does not depend on the buyer’s
139
140
141
See J. Švestka, op.cit. in previous Fn. 52, 424.
See Škárová M.,Pokorný M., Salač J., op.cit. in Fn. 52, 1757.
See §§ 451 and 457 CC and further observations supra chapter 4.4.
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good faith. However, the parties may, of course, conclude a new valid replacement contract if they so desire. The invalidity means that the ownership was never transferred to the transferee and the transferee has only a
factual control over the thing (possession) without titulus as the titulus is
absolutely invalid.
In principle, all legal defects of the contract cause invalidity from the
beginning (ex tunc).142 Defects of a contract can be classified into deficiencies of personal requisites (defects of the will, violation, contravention or
circumvention of the law or good morals), and special grounds of invalidity
provided in the Civil Code (defects of performance, etc.).143 There is no
difference compared to the avoidance of a contract in this sense.
5.6.
Delivery
5.6.1. Physical delivery
Delivery is an act by which the transfer is carried out and the intention of
the parties is completed. In law, this is expressed by the term “take-over”,
which is preceded by the “hand-over” of the thing by the transferor. These
are paired terms; they both constitute an institution called traditio. This
term, although it implies a hand-over, yet no doubt also includes the takeover as well.
142
143
See § 39: An act in law shall be invalid (null and void) if its content or purpose
contradicts or circumvents the law, or if such act contravenes good morals.
See § 616 par. 3: Where the thing being taken over by the buyer is not in conformity with the contract of sale (hereafter “non-conformity with the contract of sale”),
the buyer is entitled to have the thing restored to a condition corresponding to the
contract of sale free of charge and without delay by the seller, and this is to be done
according to the buyer’s requirement either by replacement (exchange) of the thing
concerned or by its repair; where this procedure is not feasible, the buyer may require
an appropriate price reduction or avoid (repudiate, withdraw from) the contract.
However, this shall not be the case if the buyer was aware of non-conformity of the
goods with the contract of sale before taking if over, or if the buyer himself caused
such non-conformity with the contract of sale.
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5.6.2. Exceptions to general means
(a)
Mail order selling
A certain modification consists in the transfer of ownership within mail
order selling. Here the ownership is transferred to the purchaser at the place
of delivery determined by the order (§ 614 par. 3, sentence one).144
(b)
Self-service selling
In the case of self-service selling, meaning the customer selects the goods
himself, the ownership of the purchased goods is transferred as of the moment of payment of the price for the selected goods. Thus, it is a certain
modification of the ownership right (§ 614 par. 3, sentence three).145
(c)
§ 443 Commercial Code
When the contract is between merchants, the ownership right is transferred
prior to the hand-over of the thing and as of the moment when the purchaser acquires the entitlement to dispose of the shipment containing the
goods (§ 443 par. 2 of the Commercial Code).146
(d)
§ 445 Commercial Code
The provisions on transfer of the ownership right, in both the Civil Code
and the Commercial Code, are of a non-mandatory character and the parties may depart from them in a manner often anticipated by the legal regulation itself (see e.g. exclusion of ownership in § 445 of the Commercial
Code) or in traditional manners.
144
145
146
See § 614 par. 3, first sentence of the Civil Code: Ownership title to a thing shall
pass to the buyer when he takes over the thing purchased.
See § 614 par. 3, third sentence of the Civil Code: In the case of a self-service sale
(in supermarkets), the transfer of ownership title to the buyer of a chosen thing shall
occur at the moment he pays the price of the chosen goods; until that moment the
buyer may return the goods he has selected to their original place.
The Commercial Code regulates contractual obligations between parties who are
merchants (or entrepreneurs), provided that the origin of the obligations between
and among them clearly indicates that the obligations are related to their business
activities, taking all the relevant circumstances into account (§ 443).
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Traditio brevi manu
Ownership is transferred in this situation when the acquirer already has the
thing in his possession, based on other legal grounds, and agrees with the
owner that from now on he is to possess the thing as an owner.147
(f)
Constitutum possessorium
This method means that the seller retains the thing, which is in his possession, based on other legal grounds, e.g. the seller remains in possession
as a tenant.
(g)
Traditio symbolica / longa manu
This means that the transferor hands-over the thing to the acquirer in a
symbolic manner only.148 By reference to the practice under the ABGB,
it has been admitted in cases where the physical delivery is impossible, or
nearly impossible.
Symbolic delivery applies primarily in the case of intangibles149 and in
the case of groups of assets. However, a legal provision (like § 427 ABGB)
does not exist in Czech law. Nonetheless, a tendency in this direction is
underlined by clear case law, and eventually also by the doctrine. Ownership and possession can be transferred by declaration or even by signs.150
5.7.
Transfer by registration
Certain kinds of movable things fall under a special regime of transparency. For security and other reasons, the ownership of them is officially
evidenced – registered and through the register made accessible to the
public; generally speaking, this regime covers two categories of things: a)
means of transport and b) securities (see 5.7.5. infra).
A special regime of public registration has been developed for the pledge
on movables. A pledge on a set of things and a pledge on movables, if not
147
148
149
150
This solution as well as the other two admits explicity the prevailing opinion in the
scholarship, and above all the most influental texbook, see Knapp V., et al., op.cit.
in Fn. 31, 298.
See previous footnote, 299.
R13 C 949.
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transferred to the pledge creditor or to the custody of a third party, arise
upon entry into the register administered by the Notarial Chamber of the
Czech Republic.151
5.7.1. Ships
There are two regimes (systems) of registration depending on the “orientation” of the vessel: maritime register and inland register.
(a)
Maritime register
Pursuant to the Maritime Act,152 the maritime register kept and administered by the Ministry of Transport is a publicly accessible database where
the data on vessels, their owners and operators shall be entered. An entry
into the register can also be carried out upon a decision of the Ministry.
As of the date of the entry into the register, the right to bear the flag
of the Czech Republic comes into existence. Among others, the entries
shall include identification of the owner of the maritime vessel, existence
of a pledge on the vessel, and other facts that can limit the disposal of the
vessel.
Although it is not explicitly mentioned, the entry of the name of the
owner or the pledgee does not have a constitutive effect. This conclusion
can be clearly drawn based on the wording of the Maritime Act, the Decree
on the Maritime Register,153 and the purpose of these laws.
(b)
Register of inland ships
As evidence of the capacity of a vessel [for inland transport], a special
document shall be issued and an entry into the register shall be made. This
occurs by an act of the Office for Inland Navigation.154 Similarly as in the
case of maritime vessels, the entry does not have a constitutive effect as to
the ownership of the vessel.
151
152
153
154
Zákon o námořní plavbě (Maritime Act) No. 61 / 2000 Coll.
Decree of the Ministry of transport of the Czech Republic o námořním rejstříku a
dokladech námořních plavidel (on maritime register and the documents of maritime
vessels) No. 278 / 2000 Coll.
§ 14 of the Act No. 114 / 1995 Coll., on Inland Navigation.
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5.7.2. Aircrafts
The entry into an aircraft register is evidence of the capacity of an aircraft
to be a part of the air navigation. Among others, data on the owner of the
aircraft, as well as of existence of a pledge, shall be recorded in the aircraft
register administered by the Office for Civil Aviation.155 The entries have
only evidentiary character.
5.7.3. Financial instruments (securities)
It is the substance of book-entry securities that they are recorded in a public register; the public register is administered by the Securities Centre in
Prague; (however, a decentralization and privatization of registration of
securities is being prepared).156 Entries of the owners of the securities have
constitutive effect.
5.7.4. Cars
Similarly as to aircraft and vessels, cars are also subject to registration,157
however without any constitutive effect for the transfer of ownership.
5.7.5. Pledge on movables and securities
Both the Civil Code and the Securities Act registrations have constitutive effect for the existence of, and any change of, the rights of pledge
(liens).158
155
156
157
158
§ 4 of the Act No. 49 / 1997 Coll., on Civil Aviation.
§ 42 of the Act No. 591 / 1992 Coll., on Securities; and Tichý L., Secured Transaction Involving Movables in Czech Law: Selected Issues, in: Basedow / Hopt / Kötz,
Festschrift für Ulrich Drobnig, Tübingen 1998, 683-712.
§ 18 of the Act No. 1456 / 2005 Coll., on Transport on the Roads.
See § 158 of the Civil Code and Tichý L., Das tschechische Pfandrecht, seine Entwicklung, Probleme und ihre Lösung, in: Ogieglo / Popiolek / Szpunar, Ksiesga pamiatkowa, M., Pazdan, Katovice 2005, 452-476, Liška P., Několik poznámek k rejstříku
zástav, ADN 2001, 99.
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5.8.
Acquisition through a legal act
Acquisition of ownership upon a legal act includes, but is not limited to,
acquisition of ownership upon a decision of a state authority. This includes
a decision of an administrative authority on expropriation or a court’s decision enjoining ownership regarding construction built on another person’s
land without authorization. It also includes a decision on cancellation of
co-ownership and settlement of common assets. Unless stated in the decision otherwise, ownership is acquired as of the moment the legal act comes
into effect.
5.9.
Real agreements and hidden reservations
The “take-over” of a thing includes not only taking delivery of the actual
thing itself, but also the accessories thereto, without which it is impossible
to dispose of the thing. For example, the sale of a car includes a take-over
of the keys and certificate of roadworthiness.159 Sometimes another fact
might also be required as a part of the take-over, e.g. the acquirer as a
detentor represents that from now on he is to dispose of the thing as his
own – traditio brevi manu.160
In Czech law, no real contract confirming the transfer of ownership is
required apart from the transfer agreement itself. Unless the parties agree
otherwise, the ownership is transferred irrespective of (full) payment of the
purchase price. In other words, there is no implied reservation of ownership.
5.10.
Draft Civil Code
The Draft presumes a further substantial change in the regime of the derived acquisition of ownership. For specific goods, the Draft goes back to
the concept of the Civil Code of 1950, i.e. to the consensual agreement or
transfer, as the case may be. Pursuant to § 1031 par. 1: the individual things
are transferred by the agreement itself.
It is noteworthy that the preamble to the bill uses the same rhetoric as
Knapp when he states that “the surviving dogma of the title and mode of
acquisition of ownership right occurring during the late Middle Ages as a
consequence of mere notions of the Roman law is being overcome”.161
159
160
161
See Kanda A., op cit. in Fn. 31, 2nd volume, 176-178.
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5.11.
309
Commentary
Unlike the case of immovables, there is only limited attention paid to the
transfer of movables. This may be the reason no problems seemingly exist.
Therefore, the approach to this subject in the Draft is rather irritating, if it
is attempting – after 40 years – to change the main philosophy of transfer
from one based on traditio to one based on contract. Again, this turning
point has not been well reasoned by the drafters of the Draft (similarly as
was the case with the codifications in 1950 and 1964). In fact, substantial
reasoning underlying this change is missing totally. One can only wonder
whether this can again be the same ideology that influenced the previous
changes in Civil Code / 1950 and Civil Code / 1964.
The lack of any deviation from the earlier code regarding the moment
of transfer of ownership is also a problematic issue. Even if the constitutum
possessorium, traditio brevi manu, etc. are mentioned by jurisprudence, these
phenomena (categories) have not been analyzed by the drafters of the Draft
and maybe therefore are not regulated by statute.
The role of good faith in both the process of transfer and in the validation of the transfer represents another problem: Czech law acknowledges a
two-fold solution – one in the Civil Code and another in the Commercial
Code – each based on an opposite approach. The first one protects the bona
fide transferee, the other one prefers the transferor and fair commercial order. Neither Code allows any exception. This clear and, at the same time,
reckless approach does not seem to be an ideal resolution.
The Draft changes this system to a consensual one and traditio will be
thus unnecessary to complete a transfer. However, the reasons behind the
change have not been presented with much conviction. Traditio is understood as an actual act or as reality that is not a juridical act. There is no
doubt that delivery or acceptance is often deemed the delivery of a thing
with accessories, and sometimes of accessories only (keys and documents
to an automobile). In the Czech Republic, there are no cases of special,
additional or supportive acceptance of things.
6.
Double sales
If a person alienates a movable thing in favour of two or more entities, the
ownership is acquired by the entity to which the thing was handed-over
earlier or, as the case may be, by which it was earlier taken-over.162 The bona
162
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fide person damaged by such double or multiple alienations is entitled to
compensation under the general provisions on liability for damage.163
Good faith relates to the authorization to dispose of the thing. The
standard for good faith is objective (with respect to all the circumstances)164
and must exist at the time of completion of the transfer. However, if good
faith was lacking prior to transfer, it is lacking at the time of transfer. The
obligation to claim and prove ownership is on the person claiming the
ownership right, i.e. the burden of proof.
If good faith was lacking at the time the acquirer obtained the thing,
the acquirer never becomes an owner, as the contract is invalid from the
beginning and thus neither a valid traditio, nor a transfer of the ownership
right occurred.165 The situation in which the thing is now in the possession
of the purchaser or a putative acquirer is considered an unauthorized possession of the thing (or detention) with all the consequences.
The legal basis of the entitlement to compensation for damage or loss of
the thing is included in a specific regulation on rights in rem (§ 131). The
unlawful possessor shall release the thing to the owner, including all the
fruits and benefits thereof, and shall also compensate for the damage caused
by the unlawful possession.
7.
Selling in a chain
If the parties agree that A shall not transfer the thing to B, rather he shall
transfer the thing directly to C, then it is a valid acquisition of ownership
by C, if, once again, the parties agreed to such a transfer the ownership.
In the situation of A selling a movable asset to B and B subsequently
to C, and A being asked to deliver the object directly to C, it is possible
to conclude that the contract for sale between A – B follows a consensual
principle, namely the transfer of the ownership right to B, and did not require a delivery of the transferred thing; rather B simultaneously becomes
an owner at the moment of conclusion of such an agreement. Any other
conclusion appears to be unacceptable because, if the situation were different, B would not be able to transfer an ownership right to a thing to C
lawfully, because he would not be entitled to dispose of the thing due to a
non-existent ownership right to it.
In other words, B has to become the owner, without the thing being
physically delivered to him even for a moment, to be able to transfer the
ownership right to the thing onto C, obliging the nemo plus iuris regulation.
163
164
165
See Spáčil J., op.cit. in Fn. 52, 739 et seq.
See Spáčil J., op.cit. in Fn. 52, 759 and R 22C do 298 / 2001.
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An agreement between parties A – B about the delivery of a thing to C,
does not have any influence on the occurrence of B’s ownership right to the
delivered thing. The ownership right to a thing may be transferred from B
to C, e.g. either at the moment of concluding the agreement with B, or by
default at the moment of delivering the transferred thing to the acquirer
C. The fact that A delivered the thing to C in the name of B is irrelevant
to the moment of transfer of ownership right to C.
Of course, with such a construction, our starting point is the basic assumption that the contracts for sale concluded between A – B and B – C
are valid. If there was a reservation of title agreed between B and C, by
transferring a thing from A to the acquirer C, the ownership right does not
transfer to him, but remains with the seller B until the complete payment of
the purchase price. Until then, C is only a detentor of the alienated thing
based on an agreement for its use for a certain purpose, until the time when
he becomes the owner of the thing.
As to the other case, the rule is that no one may acquire from another
person a right that his predecessor did not have, as no one may transfer
to another person more rights than he has himself (nemo ad alienum plus
iuris transferre potest, quam ipse habet).166 Ownership will not be transferred;
both contracts are invalid from the very beginning. The invalidity has
a retroactive effect. If C has the thing in his possession, he is obliged to
return it to A.
This principle is not applicable to inheritances according to Civil Code
§ 486. It says that a person who has acquired an inheritance bona fide from a
fake heir, to whom the inheritance had been certified, is protected as if he
has acquired it from a legitimate heir. Two other exceptions to this principle
are a transfer based on public auction and an acquisition from the property
of an estate in bankruptcy proceedings.167
Even if the acquirer acts in good faith, ownership will not pass to the
acquirer if the ownership is acquired from a person who is not the owner
(see 7.2. infra). Thus, the acquirer becomes a mere authorized possessor
with the opportunity to acquire the ownership right by acquisitive prescription (§ 134). Nevertheless, this rule is not provided in the law, which is a
major flaw of the Civil Code.
7.1.
Contracts under the Civil Code
If the contracts for sale between A – B – C are invalid ab initio (meaning
retrospectively invalid), there is a return to the state prior to the time the
166
167
See also supra 5.3.1. and Knapp V. et al., op.cit. in Fn. 31, 301.
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agreements were concluded. A direct consequence of such an absolute invalidity of agreements between A – B and B – C is that the owner of the
thing remains A. Another consequence is the occurrence of obligations
based on unjust enrichment, i.e. A – B and C are obliged to mutually return
performances that were gained based on the void agreements.
The legal effects of an avoidance of a contract represent a subject matter
of long debate. The prevailing opinion generally says the avoidance has retroactively both obligational and in rem effects.168 In the doctrine, an opinion prevails saying that this avoidance causes only obligational effects.
There is a strong opinion169 mainly in case law that applied the position
that the avoidance had both effects in situations where the buyer avoided
the contract by which he transferred an immovable to B after B “validly”
transferred it to C. This applied even taking into consideration that C had
absolutely acted in good faith inter alia and, in particular, had relied upon
the public register of immovables.
In this case, pursuant to the Supreme Court, the legal title (ownership) of the buyer B became retroactively extinct by the avoidance. As
a consequence of it, the previous state was restored even in a situation
where buyer B had transferred to the third person the ownership before
the avoidance occurred. The main argument for such a result is the retroactivity of the avoidance, which establishes the state ex ante: based on
this doctrine, as the buyer B never became owner, he was not able to
transfer a right he never possessed. The fact of good faith on the side of
C was irrelevant.
This doctrine differs not only from the Austrian tradition (ABGB
§§ 366 and 367), but also from the Civil Code / 1950, which stipulated that
in the case of a transfer of a movable, it is impossible to claim ownership
against a bona fide possessor if he acquired it for value from a merchant or
somebody who holds it as a custodian for the buyer. In these cases a good
faith acquirer acquires the ownership.
However an opposite opinion prevails: it creates a fifth exception from
the above-mentioned principle and represents an important turning point
in this respect. It is based on the principle of legal certainty and protection
of good faith of a fair acquirer, which otherwise as a consequence of the
decision of the Supreme court would be undermined; a bona fide acquirer
would be under the constant threat that he could lose his right anytime. It
is the transferor who has to secure his in rem title. In day to day practice, the
usual case will be the situation where the buyer does not pay the purchase
price. The repudiation is a phenomenon applied between the contracting
parties and cannot adversely influence the position of a bona fide third
168
169
See Švestka J., op.cit. in Fn. 52, 422 et seq; Spáčil J., op.cit. in Fn. 52, 767, 770.
R 44 / 2000.
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party who acquired the ownership; in this case the repudiation does not
have any effect.170
7.2.
Contracts under the Commercial Code
The consequences of absolute avoidance mentioned above (see 5.5.2. and
5.5.3. supra), apply both in civil and commercial law relations, with the
exception that the Commercial Code provides for a good faith acquirer.
Under these circumstances, C remains the owner of the thing, regardless of
the delivery to him. The delivery of the thing itself is irrelevant.
8.
Acquisition of ownership by indirect representation
8.1.
Lack of general rules
The Czech Civil Code provides for two types of agreements: the agreement
on the procurement of a thing and the agreement on the procurement of a
sale of a thing (§§ 733 through 735, §§ 737 through 741). This is a remnant
of the communist approach, apparent also from the provisions themselves:
namely, the regulations do not feature a single provision on the transfer of
an ownership right.
In these cases of indirect representation (“substitution”), the agent (indirect representative) carries out his own will in the interest of a third person (the principal), in his own name and on account of the principal. As a
consequence, the rights resulting from the contract concluded by the agent
are acquired by the agent, and obligations resulting from the contract are
assumed by the agent who, according to an agreement with the represented
person, is obliged to transfer any acquired rights to the represented person.
The clearest example of an indirect representation is the representation
based on a “commission agreement”.
Only fragmental hints seem to assert that ownership does not pass from
the principal to the agent, who is in the position of a detentor acting as a
seller on behalf of the principal171 and who is obliged to take care of the
relevant thing so as to prevent its loss, destruction or damage.
170
171
Decision of the Constitutional Court 77 / 2000.
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8.2.
Commission contract under the Commercial Code
Under § 583 par. 1 of the Commercial Code,172 the principal under a commission contract has an ownership right in the movable things delivered
to his commission agent for sale, until acquired by a third person. An ownership right to movable things acquired by the commission agent for the
principal is acquired by the principal upon delivery of the movables to the
commission agent.
In the case of “commission to sell”, the ownership right does not pass
to intermediary X. On the contrary, it remains with transferor A until the
moment of transferee B acquiring it (i.e. the moment of delivery of a transferred movable). Thus, the transfer of the ownership right is carried out by
intermediary X from person A to person B, as the acquirer.
In the case of “commission to buy”, the moment of transfer of ownership
right to the acquirer, is conditioned by the delivery of the thing to intermediary X. It is therefore obvious that commission merchant X (intermediary) does not, even for a moment, become the owner of the thing and the
ownership right passes directly from transferor A to transferee B.
9.
Consequences of insolvency
9.1.
General
9.1.1. Types of insolvency proceedings
The Czech Act on insolvency (No 182 / 2006 Coll.) in force as of January 1, 2008) provides for three types of judicial proceedings on insolvency:
bankruptcy proceedings (§§ 244-315), reorganisation (§§ 316-364) and discharge from debts (§§ 389-418) (dealing only with consumers).
Bankruptcy proceedings lead to universal liquidation (distribution) of
all assets of the debtor. Reorganization is an alternative to bankruptcy proceedings as it enables the debtor to continue his business activity without
liquidation. A discharge from debts proceeding is an alternative to the
reorganization and oriented to the assets of a consumer who is insolvent,
or finds himself under the threat of insolvency.
This act on insolvency replaced the Act on bankruptcy No. 328 / 1991
Coll. and due to its short period of time of being in force, there is very
limited experience with it and only very brief comments on it.
172
Commission contracts are regulated in §§ 577-590 of the Commercial Code.
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9.1.2. Consequences of the commencement of the bankruptcy
proceedings and the action Pauliana
By declaration of bankruptcy, the insolvency administrator acquires the
right to dispose of the insolvency estate. The insolvency trustee, who has
different duties, is especially charged with exercise of the debtor’s rights
and discharge of the debtor’s obligations related to the insolvency estate
(Insolvency Act, § 246(1)).
The term “insolvency estate” shall be understood as assets reserved for
satisfaction of the debtor’s creditors (Insolvency Act, § 2(e)). The insolvency estate consists of assets that belonged to the debtor on the day of
initiation of the insolvency proceeding and assets acquired by the debtor
during the insolvency proceeding, provided that the debtor filed the insolvency petition himself (Insolvency Act, § 205(1)).
However, if the insolvency petition is filed by a creditor, the insolvency
estate is composed of assets that belonged to the debtor at the time the
court issued the preliminary injunction by which the debtor was (partially
or entirely) prohibited from disposing of his assets, of assets that belonged
to the debtor at the time of the issuance of the decision on insolvency, and
of assets acquired by the debtor during the proceedings (Insolvency Act,
§ 205).
Concerning the transfer of ownership, § 253 of the Insolvency Act plays
a major role. If a transfer agreement has been fully performed, either by the
debtor (bankrupt) or by the other party at the moment of declaration of the
bankruptcy, the insolvency administrator is entitled to fulfil the agreement
and to seek fulfilment from the other party, but he may also withdraw from
the agreement (Insolvency Act, § 253(1)).
A general rule of the Civil Code § 48(2) applies to withdrawals from
agreements by the insolvency administrator, according to which the agreement is rescinded from its inception upon the withdrawal, i.e. the situation
has the same effect as if the agreement had never existed. Legal relations
revert to the time prior to conclusion of the agreement. The important
point here is that the contractual partner of the debtor has the right to
claim damages incurred thereby, by submitting the claim to the insolvency
proceeding; the claim is considered to be a claim against the insolvency
estate. Further, it shall be noted that the debtor’s contractual partner may
not claim return of partial performance rendered prior to the decision on
insolvency on the grounds that he did not receive counter-performance
from the debtor (Insolvency Act, § 253(1)(4)(5)). Czech law does not
make any distinction based on whether the performance is specified generically or individually.
Even in Czech law, there exists an instrument that resembles the so
called actio Pauliana. The concept is embodied in the mechanism of con-
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testation of juridical acts of the debtor. The law provides for four modes of
this remedy.
The principle of equal treatment of creditors is the basis for remedies
sought by the insolvency administrator, or by a single creditor, to contest
various juridical acts of the debtor before the opening of the insolvency
proceedings. The aim of these remedies is to declare a transaction of debtor,
which was carried out to the detriment of creditors, ineffective in order to
put the creditors in a position as if the “detrimental” transaction had not
occurred.
Ineffectiveness must be distinguished from invalidity (avoidance).
Avoidance always has a retroactive effect: ownership reverts to the transferor. Ineffectiveness means that the successfully contested transaction (declared ineffective by the court) is without any legal effect in relation to the
creditors (§ 235 par. 2 of the Insolvency Act).
In the first place, the debtor’s legal acts can be contested by the insolvency administrator, who can file an “action of contest” against persons
who are then obliged to surrender to the insolvency estate any consideration the debtor had given based on the ineffective legal acts. The action
is dealt with in a so-called adversary proceeding. The insolvency administrator is obliged to file the action of contest if the creditors’ committee
so resolves. The right to file the action extinguishes if not filed within one
year from the day when the effects of the decision on insolvency occurred
(Insolvency Act, § 239(1)(2)(3)).
Further, it is possible to contest legal acts taken without a reasonable
counter-performance. Legal acts are regarded without reasonable counterperformance if the debtor undertook to render performance without consideration or in exchange for a counter-performance whose usual price is
substantially lower than the usual price of performance that the debtor
undertook to render. However, these rules apply only if the legal act was
taken by the debtor while insolvent or if the legal act resulted in the debtor’s insolvency.
Another group of contestable legal acts are acts taken during the last
three years preceding the initiation of the insolvency proceeding for the
benefit of a person affiliated with the debtor or forming a concern (holding)
with the debtor and which can be qualified as a preferential legal act. A
preferential legal act is defined as an act resulting in greater satisfaction of
any creditor than that the creditor would otherwise receive in bankruptcy,
at the expense of other creditors. Examples can be legal acts resulting in
repayment of debt before maturity or an amendment or replacement of an
obligation to the detriment of the debtor (Insolvency Act, § 241).
Finally, contestation can be exercised as to acts by which the debtor
intentionally hinders the satisfaction of a creditor, provided such intent is
known or should have been know by the other party, with regard to all cir-
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cumstances. The hindrance can be contested if it occurred within the last
five years preceding the initiation of the insolvency proceeding (Insolvency
Act, § 242). As a result of a successful contestation, the contested legal act
is ineffective. It is invalidity ex nunc. If a creditor achieved a decision on
ineffectiveness of a legal act and the decision entered into legal force prior
to the legal force of the decision on insolvency, he may seek the consideration from this ineffective act up to the total amount of his claim against
the debtor. The creditor is not obliged to pass this consideration to the
insolvency estate, as it is not a part thereof (Insolvency Act, § 243).
The transferor is protected especially by the help of moratorium. A decision on insolvency cannot be issued during moratorium (Insolvency Act,
§ 120). Although the creditors may accede to the proceeding and submit
their claims to the court, effects of these acts occur only after termination of
the moratorium. It is a matter of course that no difference is made between
generically and individually identified things (performance) in these situations. The contract can be terminated by withdrawal for identical reasons
as specified above in case of the transferee’s insolvency. The contract extinguishes ex tunc. So, the withdrawal produces a retroactive effect.
9.2.
Insolvency of the transferee (buyer) and the
transferor (seller)
9.2.1. When the obligations of both parties have not
been discharged in full
These situations are expressly addressed by the provisions of § 253 of the
Insolvency Act. The act envisages that, if an agreement on mutual performance (“synallagmatic” contracts on which we are focused only), is not fully
discharged by both parties as of the declaration of bankruptcy, the insolvency administrator may discharge the agreement instead of the debtor and
demand that the other party discharge his obligation; or he may repudiate
the contract. Such an act has the legal consequences of avoidance of the
agreement with a retroactive effect (see 5.5.5. supra).
However, if the insolvency administrator does not announce that he
will discharge the contract within 15 days from the declaration of bankruptcy, the administrator shall be deemed to be withdrawing from the agreement. The other contracting party is not allowed to withdraw until then.
But the other party and the administrator may agree otherwise. If the other
party is obliged to render performance first, he may refuse to perform until
mutual performance occurs or is secured.
If the administrator repudiates the contract, the other contracting party
may seek compensation by submitting his claim against the property of the
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estate. The other contracting party can not seek the return of his partial
performance rendered prior to the declaration of bankruptcy on the grounds
that he did not received counter-performance from the debtor.
9.2.2. Insolvency of the transferee (buyer)
If the buyer has paid the price before he was declared bankrupt, the seller
has to perform in favour of the estate. If the seller has performed in full, but
the buyer (bankrupt transferee) has not paid the price, then the transferor
is entitled to the dividend of the payment.
The seller who transferred the ownership by constitutum possessorium
may not withhold the physical delivery, as the goods stored with him became part of the property of the estate.
Because of retroactive effect of an avoidance and repudiation (see 5.
supra), the transferor is deemed to be the owner and can revindicate the
asset (goods, things).
If the transferee, prior to the declaration of bankruptcy, took over the
asset without acquiring the ownership thereto, the seller (transferor) is not
entitled to revindication of it, provided that the administrator has fulfilled
his obligations stemming from the purchase contract without undue delay
upon sellers demand (§ 261 par. 2 of the Insolvency Act).
9.2.3. Insolvency of the transferor (seller)
If the buyer acquired the ownership prior to when the seller was declared
bankrupt, then the transferee is well protected against the claims of transferor’s creditors.
In the case where the buyer paid the purchase price, but the seller (prior
to the commencement of the bankruptcy proceedings) did not transferred
the ownership, the buyer will have a claim for the transfer. If the transferor
sold the thing with a reservation of ownership prior to the declaration of
bankruptcy and delivered the thing in question to the buyer, then the buyer
may vindicate (demand return of) the thing (§ 260 par. 1 of the Insolvency
Act).
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10.
Passing of risk
10.1.
General principles
The Civil Code features passage of risk in its marginal provisions. There is
no general rule.173 In the case of a sales agreement, the risk of accidental
destruction or impairment of the goods and their profits passes to the buyer
at the time he acquires ownership to such goods. However, if the buyer acquires ownership before the goods are delivered to him, the seller is in the
position of a custodian (§ 590).174 The parties can agree otherwise.
On the other hand, the Commercial Code has a good, well-developed
concept. Here it is necessary to distinguish between the passage of risk
(liability) of damage to the thing and the transfer of the ownership right,
despite the fact that in a number of cases they may coincide. Under the
Commercial Code, the risk of damage is passed from the seller to the purchaser independently of passage of the ownership right. Therefore, it is
possible that the purchaser is liable for damage to the goods, although he
does not own them yet; and on the other hand, a purchaser that is an owner
of goods, might not be liable for damage thereto.
Damage means a loss of the goods or destruction, injury or loss of value
of the goods, regardless of the causes thereof and regardless of whether the
damage was caused culpably or not. The damage might also be an accidental damage or damage caused by a third person.
The mandatory regulation contained in § 459 of the Commercial Code
allows an alternative arrangement on transfer of the risk of damage to the
goods in two cases only. The first case involves the situation where the
object of delivery consists in goods specified one by one. The second case
represents the situation where, though the goods are specified individually,
at the time of transfer of the risk the goods are sufficiently separated and
distinguished from other goods of the same sort. Apart from that, there is
no party autonomy.175 Therefore, it is clear that in the latter case the goods
must always be individualized to a certain extent.
The moment of transfer regulated by the law distinguishes several cases:
(a) The purchaser takes delivery of the goods from the seller;
(b) The purchaser takes delivery of the goods from a person different from
the seller;
(c) The seller is obliged to deliver the goods to a carrier; and
(d) At the moment of conclusion of the contract the goods are in transit.
173
174
175
See Škárová M., op.cit. in Fn. 52, 1730.
§ 459 falls within the scope of § 263 providing for mandatory provisions of the Commercial Code.
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Under the Commercial Code, there is also a general rule that the risk is
transferred to the purchaser at the moment the purchaser takes delivery
of the goods from the seller, if done timely. However, if the purchaser fails
to take delivery of the goods in a timely manner, the risk is transferred at
the time the seller enables the purchaser to take delivery of the goods and
the purchaser breaches the contract by failing to take the goods over. The
precondition is that the purchaser has to be informed of the availability of
the goods. If the purchaser is entitled to refuse the goods, the risk of damage
is not transferred. In the case of a take-over of the goods from a person different from the seller, the risk is passed at the time determined for delivery
of the goods. Nonetheless, the purchaser must be enabled to take delivery
of the goods and he must also be aware of this possibility.
In the case of delivery of goods to a carrier, there are two alternatives.176
The first is that under the contract, the seller is obliged to dispatch the
goods and hand them over to the carrier in a determined place for the
purpose of transport to the purchaser. In that case, the risk is passed to the
purchaser at the time the goods are handed over to the carrier at that certain place. In the second alternative, the risk is transferred in connection
with the seller’s obligation to dispatch the goods, even though the seller is
not obliged to hand-over the goods to the carrier in a certain place. In such
a situation, the risk is transferred at the moment of hand-over of the goods
to the first carrier for the purpose of transport to the place of destination.
If the goods are being transported, the risk is transferred retrospectively
to the time of delivery of the goods to the first carrier. This does not apply
if, in conclusion of the contract, the seller knew or was supposed to know
that damage to the goods has already occurred. The purchaser is protected
here by the virtue of the fact that the seller intentionally sold damaged
goods for full value.177
The Commercial Code differentiates among a couple of cases. There
are some general provisions, on the one hand, and rules for special cases,
on the other. In general, the risk of damage to goods passes to the buyer at
the time when he takes over the goods from the seller, assuming he does
so timely. If the seller does not do so timely, the risk passes when the seller
makes it possible for him to dispose of the goods and the buyer breaches the
contract by not taking over such goods. The seller has to know about the
opportunity of disposing of the goods. The risk does not pass to the seller if
he has the right to refuse the goods.
If the buyer is to take over the goods from a person other than the seller,
the risk of damage to the goods passes to the buyer at the time set for deliv-
176
177
See Plíva S., op.cit. in Fn. 114, 260.
See op.cit. in previous footnote, 262.
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ery of the goods, provided that, at this time, the buyer has an opportunity
to dispose of the goods and knows about it.
If the seller has an obligation to hand over the goods to a carrier, one
has to differentiate between two cases. The first is the situation that, under
the contract, the seller is to hand over the goods to a carrier at a certain
place for transportation to the buyer. In this case the risk of damage to the
goods passes to the buyer when and where the goods are handed over to
the carrier. In the second case it depends on the obligation of the seller to
dispatch the goods, an obligation stipulated by the contract of sale. But
the seller is not bound to hand over the goods to the carrier at a certain
place. The risk to the goods passes to the buyer when the goods are handed
over to the first carrier for transportation to the place of destination. If the
goods are in transit when the contract of sale is concluded, the risk passes
retroactively to the time when the goods were delivered to the first carrier.
So the fact that the seller has the documents that make it possible for him
to dispose of goods in transitu has no influence on the transfer of the risk of
damage to the goods.
The parties can agree in writing that the buyer will acquires ownership
to the goods prior to the time specified in the Commercial Code (§ 443),
or later than legally specified. If not otherwise agreed, the buyer acquires
ownership title to the goods as soon as the delivered goods are handed over
to him. Prior to taking delivery of the goods, the buyer acquires ownership
title to the goods in transitu and it is at the moment when he acquires the
right to dispose of them.
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Part III:
11.
Acquisition by combination, commingling,
processing and other ways
11.1.
Notion
Original acquisition of ownership encompasses several, but in many ways
dissimilar, means of acquiring ownership. These are acquisitive prescription, which is not actually entirely an original means of acquiring ownership; creation and production of things; processing of things; acquisition
of ownership by increment; and acquisition of ownership of things lost,
abandoned or hidden.
Neither legislation, nor case law, nor the jurisprudence distinguishes
among the individual kinds (forms) of original acquisition (conjunction,
commictio, confusio).178 The reason for this may consist in not only underdevelopment of the Czech dogmatic, but also in negligence on the part of the
legislator. Yet, there is clearly real life confusion about when the unification
of some things into one should be distinguished from combination or commingling of several things.
In the first case, unification, the elements of various things are not
being mixed together, whereas in the two other situations, combination
and commingling, the parts (elements) are being mixed together. By the
way, even the Austrian legislator was not absolutely precise and logical on
this point.179 Be that as it may, the original acquisition through processing
should be regarded mutatis mutandis within the regime of the processing that
has, evidently, a generic meaning in the Civil Code (§ 135b). Although
there is no court ruling, the new owner acquires in principle the ownership
of the whole to the same extent it existed in the predecessor, meaning with
all encumbrances including pledges.
Good faith is a requirement of acquisition of ownership regardless of the
circumstance and whether or not the transfer was for value or gratuitously.
The bona fide requirement is a strict rule, which cannot be modified by any
178
179
See Knapp V. et al., op.cit. in Fn. 31, 303 et seq.
See the heading, where the words “processing” and “commixture” are inserted,
whereas in § 414, the ABGB also deals with the words “commingling” and “confusion” on the same level.
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means (including under the regime of unjust enrichment). Physical control
is also a necessary condition of acquisition of a movable. Whether this
condition is met in an individual case depends on the concrete situation
judged by objective criteria.180 On the other hand, in case of acquisition of
an immovable (land), the physical control (e.g. the presence of the owner
at the field) is hardly imaginable.
Apart from good faith, no other prerequisites, like business policy and
like, are required. Good faith is a legitimate expectation of a certain legal
state. Its existence is assessed based on objective criteria with regard to a
concrete situation.181 The requirement is that it exists at the time of the
transfer (traditio).182 Seemingly, the circumstance that the good faith is
weakened after the ownership has been acquired does not affect the transfer
itself. It does not have any “retroactive effect”.
The question of any negligence is judged based on objective and subjective criteria, which fulfils the vague notion “reflection of all (relevant)
circumstances”.183
11.2.
Creation out of own material
If a person creates or produces a new thing from his own materials,
he becomes the owner of such new thing upon completing the creation /
production thereof. The key question, whether the thing in question is
new, has to be resolved according the relevant opinion in the business
intercourse. One of the important factors should be the increase in the
value of the new thing.184
11.3.
Processing
Processing (specification) may be performed in two ways (§ 135b). Primarily, this involves the combination of another’s materials with the one’s
own materials (or thing), or using exclusively another’s materials for the
manufacture of one’s own thing.
The key issue for the question of ownership of something so made is the
existence of good faith. If the processor acted in good faith believing that
180
181
182
183
184
Knapp V. et al., op.cit. in Fn. 31, 288.
See Spáčil J., op.cit. in Fn. 52, 739 and R Cdo 61/2001.
See Knapp V. et al., op.cit. in Fn. 31, 289 et seq.
See Knapp V., et al., op.cit. in Fn. 31, 303; Spáčil J., op.cit. in Fn. 52, 789.
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he had the right to utilize the thing, although in reality he did not, his right
to the previously existing thing shall extinguish and a new ownership right
shall be created to the thing newly created by processing. The owner is the
person whose share in the new thing is the greater, where “share” means a
share in the value of the thing created by processing.
Meanwhile, consideration must be given not only to the value of the
processed things, but also the value of the work invested by the processor.185
The new owner is obligated to return to the other the value of that by
which he devalued his property, although this will be neither compensation
for damage nor payment of the price of the entire thing. If their shares are
equal and the parties fail to reach an agreement, the court shall decide.
11.4.
Combination, commingling
If the processor is aware that he is combining or commingling186 another’s
materials or, as the case may be, such fact should have been known to him,
he shall not acquire an ownership right to the materials used for processing
or to the new thing. The owner of the materials or thing shall become the
owner thereof and may seek their return or the restoration of the prior state.
Procedure is the same both in the case of processing another’s materials and
mixing another’s thing with one’s own thing, or in the case or mixing or
combining in some other inseparable manner or fusing two or more things
of various owners.
These cases must be distinguished from situations where the parties
have agreed on the acquisition of ownership of a thing produced from foreign material (§§ 644 et seq.).187
11.5.
Accruals
Accruals are regulated by a single sentence in the provision of § 135a. As
such, the Czech law does not distinguish types of accruals. The claim associated with accrual, therefore, probably follows from the regulation regarding
unjust enrichment.
Accrual means the incremental increases of things such as fruits of the
earth, the produce of land, and the offspring of animals. The term does not
include, for example, buildings, since the land and the buildings thereon are
independent things (the principle of superficies solo cedit does not apply).188
185
186
187
See the clarification of these terms supra under 11.1.
i.e. special provisions of contract for a work in the Civil Code.
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Accruals include the yields from money, securities, etc. (fructus civiles),
in particular interest on savings, share dividends, etc. The owner of the
thing becomes the owner of the separate fruits there from as independent
things upon their separation. In the case of civil fruits, it is necessary to
make a distinction according to the type thereof. For interest on savings,
it is the maturity date; in the case of interest on a debt and the payment of
dividends, an obligational claim to payment of the yield (interest) arises.
Ownership begins only upon the receipt thereof, since only then such
fruits are separated from the property of the prior owner. Accrual separated
from a thing during a period of lawful possession belongs to the lawful
possessor, not, however, to an unlawful possessor or a mere detentor. Any
accrual, even if it is separated (severed) from the principal thing, belongs
to the owner (§ 135a).
An unjust possessor may separate from the thing the value of any accrual, at his expense, unless this is impossible without deterioration of the
basis of the thing (§ 131 par. 2).189 The possessor is not entitled to retain
the thing as security for compensation, etc. (see 20.6.3. infra).
188
12.
Good faith acquisition
12.1.
Czech civil law does not define “good faith acquisition” – or even good faith
itself. According to the Civil Code, it is not possible to acquire ownership
of a transferred thing from a transferor if he lacks the right of disposition
regarding the transferred thing, as a consequence of the principle “nemo
plus iuris transfere potest quam ipse habet”. The absence of the right of disposition of the thing on the side of the transferor, therefore, always results in
an absolute invalidation of such contract.
In the case of a ‘contract for sale’ in commercial relations (§§ 409 et seq.
of the Commercial Code), the buyer can acquire the ownership right even
if the seller is not the owner of the goods being sold under the contract.190
The rule cited above does not specify the cases covered by it. It is clear
from the mere legal wording “the seller is not the owner”, that it is not
relevant for what reason B does not have an ownership right to the transferred thing; that is, whether B was never the owner, whether B’s right to
dispose had been avoided or terminated with a retroactive or ex nunc effect,
or whether it was the case of a double sale.
188
189
190
See Spáčil J., op.cit. in Fn. 52, 785
See § 446 of the Commercial Code, quoted in Fn. 110.
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The rule of good faith acquisition shall apply to “goods being sold under
contract” (pursuant to § 446), which implies that the Commercial Code
does not require any other characteristic of the goods (e.g. as in the case
of dealing with stolen goods, lost goods, negotiable instruments, or even
money). The decisive criterion is then the seller’s lack of right of disposal for
whatever reason. That means that this rule of good faith acquisition shall
always apply in those commercial relations based upon contract for sale.
12.2.
Quality of good faith
Regarding the object of good faith of C, in the transaction A to B to C, the
rule cited in 12.1. above is conceived with respect to C’s knowledge that B
is not the owner of the thing (i.e. C knew that B was not the owner when
he acquired it), which directly affects A’s burden of proof. In order for A
to be successful in rei vindicatio proceedings, he has to demonstrate that
C, at the time of his acquisition of the ownership right to the thing, knew
that B was not its owner and therefore B was not entitled to dispose of the
thing. There is no rule of a presumption of the acquirer’s good faith; rather,
in cases of doubt, the rule is the statutory presumption of a possessor’s good
faith, namely that it is supposed in cases of doubt, that the possession is lawful
(§ 130 par. 1 of the Civil Code).
The good faith inquiry here should only be whether C was ignorant of
the fact that B was not the owner of the transferred thing. This is because,
according to the opinions of several authors, good faith does not apply to
only the knowledge that B was not the owner of the thing. For example,
C could have known that A was not the owner, but at the same time he
could have assumed in good faith that B was entitled to dispose of the thing
or the goods.
Good faith is a mental state. In assessing it, the relevant circumstances
and concrete situation play a role based on objective criterion. One has to
take into consideration whether the possessor, in the course of required
ordinary care, could have doubts whether the thing belongs to him or not –
even after the conclusion of the contract.191 “Knowledge” in both cases is required at a time when the buyer is set to acquire the ownership right. When
this is exactly depends on the agreement of the contracting parties. When
they fail to agree in this respect, it is the moment of delivery of the thing
(traditio) to the acquirer C. As for the standard of good faith, only actual
knowledge about B not being the owner of a thing excludes good faith.
Good faith has nothing to do with the question of the acquisition for
value. Similarly, the question whether the affected thing was of a generic or
191
R 15 / 1991 and Spáčil J., op.cit. in Fn. 52, 738-743.
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specific nature is irrelevant. The standing of the transferor is also irrelevant:
it does not matter whether he is a professional or a consumer.
13.
Acquisitive prescription
13.1.
Acquisitive prescription of movable property
All types of things and rights that are objects of ownership can be the
subject (object) of acquisitive prescription. Even when the ownership is
evidenced in a public register, no special rules for acquisitive prescription
apply. However, it is clear that in these situations one can hardly think of
acquisitive prescription.
Only a negligible category of things is, as an exception, not subject to
acquisitive prescription. This category includes things that can be, by operation of law, only in the ownership of certain privileged persons, typically
in the ownership of the state or of legal persons appointed by state.192
Possession must precede the acquisition through prescription. Ownership is not capable of prescription in terms of a statute of limitation.193
13.2.
Purpose
The purpose of prescription is to harmonize the long-term actual situation
with the legal situation. This enables acquisition of ownership by a possessor who has been controlling the thing bona fide for a long term believing
he is the owner thereof; in this case, good faith is, based on the valid regulation, given “with respect to all the circumstances of the thing”.
Also, the prescription protects the owner who has found himself with
the burden of proof regarding the existence of his rights. In other words,
the purpose of acquisitive prescription is the protection of the bona fide possessor, who has been controlling the thing in the good faith belief that he
is the owner. It contributes to the state of legal certainly and peacefulness.
It protects the owner who finds he is lacking evidence with regard to the
existence of his rights.194 It removes the hardship resulting from the rules
of civil procedure regarding evidence.195
192
193
194
195
See § 125 par. 2 and Knapp et al., op.cit. in Fn. 31, 302.
See § 100 par. 2: “All property rights may be barred by statute (meaning subject to
prescription – note by the author) except the right of ownership”.
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13.3.
Requirements
13.3.1. Introduction
The concept of acquisitive prescription has not been the target of any
substantial criticism. The non-existence of acquisitive prescription, or at
least its lack of use, has its roots in the communist regime, which as a consequence of an entirely different understanding of law and society, fully
suppressed this traditional form.196
Possession and acquisitive prescription require the possessor’s intention
to possess and to possess in his name.197 On this point the possession relating to acquisitive prescription differs from mere detention. On the other
hand, no further prerequisites are required, for instance peaceful, regular,
public possession. In case of possession by more than one person, good faith
is required by all of them.198
The first condition of acquisitive prescription however is lawful possession. A lawful possessor shall be bona fide in regard to all relevant circumstances relating to whether the thing belongs to him as an owner. A mere
detention is not sufficient to achieve the acquisitive prescription of the
ownership.
The possessor becomes owner of the thing if he holds it for at least three
years for movable things, and at least ten years for immovables. The possession has to be uninterrupted. But this does not mean physical uninterrupted
possession for the entire time is necessary. What is significant is that during
this time another person has not taken possession of the thing in question.
The time for the acquisitive prescription is suspended by interruption of
the possession.
13.3.2. Duration of possession, suspension and interruption
The lawful possessor becomes an owner of the thing if he has possessed the
thing continuously for a period of three years (10 years for immovables) –
§ 134 par. 1. An ownership right is acquired by prescription as a result of
long-standing, uninterrupted possession by a person who is not the owner
of the thing (§ 134 par. 2).
For acquisitive prescription purposes, the prescription period may include periods prior to 1 January 1992 when prescription was not possible,
196
197
198
See the backgrounds in the Chapter I. supra.
Spáčil speaks of the conviction of the possessor (see Spáčil J., op.cit. in Fn. 52, 738,
commenting § 130 on possession).
See Spáčil J., op.cit. in Fn. 52, 776 and R Cdon 231 / 96.
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provided that prescription conditions were met at least as of 1 January
1992.199 If the acquisitive prescription is accomplished, no claim based on
unjust enrichment is possible. In other words, the acquisition through prescription does not result in any unjust enrichment. The rightful possessor –
owner – is by no means obliged to compensate his predecessor.
13.3.3. Change in possessors
Acquisition of an ownership right by prescription is not a means of original
acquisition, since the ownership right to the thing belonged to some other
person. On the other hand, it is not a transfer of the ownership right, with
prescription having nothing in common with transfer or any of its formal
requirements or components.
In case of a change in the person of the possessor, one has to determine
whether the new possessor is a bona fide possessor. The prescription time
starts running in principle from the beginning of the possession; however
if the conditions set forth by law (Civil Code) are met, the new possessor
can also add the period of time during which the thing was located with
and possessed by his predecessor.200 If the predecessor was not a bona fide
possessor, this approach is not allowed (§ 134 par. 2).201
Prescription may apply solely to things as wholes; not to parts thereof.
Ownership rights to a thing that may not be the object of an ownership
right, or that may be owned only by the state or legal entities specified by
law (§ 125 par. 2), may not be acquired by prescription.
To acquire the ownership right, the acquirer must be, in principle, the
authorized possessor of the thing during the entire prescription period. Legal
successors of authorized possessors may acquire ownership by prescription if
they are authorized possessors of the relevant thing themselves. Ownership
is acquired simply upon the elapse of the prescription period.
14.
Draft Civil Code
14.1.
Appropriation and accrual
A thing that does not belong to anyone can be acquired by appropriation
and any person may become an owner (§ 982). A specific regulation is
199
200
201
See Knapp V., et al., op.cit. in Fn. 31, 302.
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proposed with respect to animals. It distinguishes a tame animal, a wild
animal, and a captured wild animal.
A tame animal that is not chased and that has not returned to its owner
within a reasonable period of time, while no one prevents it from doing so,
becomes an animal without a master, and an owner of private land where
the animal dwells may appropriate the animal. If the animal dwells on a
public estate, then any person may appropriate it (§ 984 par. 1). The period
of six weeks is considered a reasonable period of time for an animal to return (§ 984 par. 2). Therefore, it is possible to presume that the ownership
is passed and that the person keeping the animal becomes the owner (or,
as the case may be, the person on whose estate the animal dwells) after six
weeks from the beginning of the “voluntary” dwelling at the new owner.
A wild animal is basically an animal that does not belong to any person,
i.e. it is an animal without a master (§ 983 par. 1).
14.2.
Finds
An abandoned thing may not be considered a lost thing (§ 988). There is a
duty to return a lost thing to the person who has lost it or to the owner thereof, against payment of necessary costs and a finder’s reward (§ 989 par. 1).
Otherwise, if it is not possible to say to whom the thing should be returned, it is a duty of the finder to announce the finding without any undue
delay to the municipality, unless the thing is of an insignificant value (§ 989
par. 2). Subsequently, the municipality shall return the thing to the person
who lost the thing or to the owner, if such person requests the thing to be
returned to him within one year from the announcement of the finding. The
finder’s reward shall be one tenth of the value of the find (§ 989 par. 2).
If no one claims the thing within such period of one year, the finder
may use the thing or the yield there from as a true possessor (§ 994 par.
1). After three years from announcement of the finding, the finder shall
acquire the ownership right to the thing or the yield gained there from;
until that time he shall be considered a true possessor (§ 994 par. 3). If the
finder declares that he does not wish to acquire the thing found, its right
shall pass to the municipality, which may use the thing or sell it and use the
yield therefrom. The municipality then becomes entitled to pay a reward
to the finder (§ 996).
The same applies to the finding of a hidden thing as applies to the finding of a lost thing (§ 999). Unless an agreement is reached between the
owner of the land and the finder, the hidden thing belongs to the owner
of the land who will pay the finder half of the value of the thing found
(§ 1000 par. 2).
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Other forms
Under the Draft, accruals can be natural or artificial (§§ 1003 and 1010).
A natural accrual of a movable thing belongs to the owner (§ 1008). An
artificial accrual can occur by processing and mixing (§§ 1010-1017).
A new thing created by processing of movable things belonging to a
number of owners belongs to such person among them who contributed
the most to the value of the result, either by material or by work (§ 1010
par. 1). It is left to the discretion of the owner of the thing, which the
processor has now processed into a new thing, whether he shall appropriate
the new thing and compensate the others for what they have lost and / or
whether he shall keep the compensation (§ 1011 par. 1). If it is not possible to determine a single owner of the new thing, the thing shall belong
to the co-ownership of the owners of the things that have been processed
(§ 1012 par. 1).
If a thing of another person is used for a modification of another thing
only, it shall belong to the owner of the thing that has been repaired (or
modified) and such person shall compensate the owner of the processed
thing for the value of the used thing of the other person (§ 1013).
14.4.
Commentary
Although the legislator made some attempts at amendments, the current
provisions are insufficient. This is mainly due to the fragmentation and
incompleteness of relevant provisions, and the failure to address even some
fundamental issues. For instance, the law does not tackle the key issues of
representation and agency agreements, i.e. the transfer of title to things.
Other key moments also remain to be addressed: e.g. double acquisition,
acquisition in chain or acquisition by representation. The legislator further
failed to resolve the fundamental issue of the transfer of ownership to real
estate in the case of bankruptcy.
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Part IV:
Additional issues
15.
Reservation of ownership
The basic regulation on reservation of ownership is contained in § 601 of
the Civil Code. Reservation of ownership is very briefly mentioned also in
the Commercial Code.202
Although the contract of sale may be informal, the agreement of reservation of title must be in writing, otherwise it is invalid. The delivery of
goods by the buyer at the conclusion of a contract of sale with reservation
of title does not establish ownership of the buyer, but the goods are delivered to the buyer for an agreed purpose until the agreed price is fully paid.
If e.g. the buyer sold such goods, despite not having paid the full agreed
price, he causes the seller damage, which corresponds to the entire amount
of the price of the delivered goods and not only to the unpaid balance of
the price.
If the buyer fails to fulfil the obligation to pay the purchase price, the
seller shall have all the tools of protection belonging to the owner of a
thing. The statute concerning the protection of ownership does not object
to the seller making a claim for his right to the payment of the purchase
price. Therefore, the nature of this obligation suggests that the right of
choice between the protection offered to the owner and the right to the
payment of purchase price is with the seller. However, he cannot claim both
rights successfully at the same time.
A consequence of the reservation of ownership may also be that, until
the transfer of ownership to the buyer, the thing cannot be subject to redress or listed in a bankruptcy estate, which is often a peculiarly important
consequence. In the case of insolvency proceedings against the buyer, the
seller, as an owner of a thing, can file a legal action to exclude the thing
from the estate register.
Reservation of ownership means the postponement of the moment of
acquisition of ownership title to goods otherwise than as provided in the
202
§ 601: If ownership title to a thing that has been sold is to pass to the buyer only
after payment of the price, this reservation (proviso or condition) must be agreed in
writing. Unless the contract implies otherwise, the risk of accidental destruction or
accidental impairment of the thing shall pass to the buyer when he takes delivery of
the thing.
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Commercial Code, i.e. at the moment of the hand-over or the take-over
(§ 443 par. 1 of the Commercial Code). If the parties arrange for this reservation, the purchaser will not acquire ownership before he fully pays the
purchase price. Such a clause requires a written form, otherwise it does
not have any effect, including against a third party. If the buyer does not
meet his obligation to pay the price, the seller has the right of retention
(§ 560).203 The movable can not be seized “automatically” i.e. without a
court order. In a bankruptcy proceeding, it shall be, upon the request of the
seller, excluded from the bankrupt’s estate.204
Czech law does not know extended reservation of title. No protection
can be granted to a creditor under this regime.205
16.
Abandonment and loss of ownership
(a) A lost thing is a thing whose owner lost the effective possibility to
exercise ownership rights thereto; however, the owner does not cease
to be the owner of the thing.
(b) An abandoned thing is a thing that was forfeited by the owner by
means of a unilateral legal action in which the owner expresses his
will to abandon the thing. As a result of abandonment (dereliction),
the right of the current owner ceases to exist and the ownership right
of the state comes into existence.
The discovery of lost and abandoned things is relevant. If there is doubt
whether a thing is a lost or an abandoned thing, § 135 par. 1 and 2 shall
apply as if the thing were lost but not abandoned.206
Acquisition of ownership of a lost thing is preconditioned by its discovery. The finder who detains the thing shall release the thing to its owner;
if he does not know who owns the thing but knows who lost it, he shall
return the thing to the person who lost the thing, even if it is not the thing’s
owner. If the finder does not know and cannot find out who owns the
thing or who lost the thing, he shall surrender the thing to a governmental
authority. The finder is entitled to a compensation of necessary costs and
203
204
205
206
See Škárová M., op.cit. in Fn. 52. 1650.
See Kozel R., Problémy konkurzního řízení a jejich řešení (Problems of bankruptcy
proceedings and their solution – Arguments presented here are also applicable under
the current Bankruptcy Act.) 260 et seq.
See Tichý L., opuštění věci podle ustanovení § 453 odst. 2 občanského zákoníku
(Abandonment of a thing pursuant to § 453 par. 2 of the Civil Code), Bulletin
advokacie 1985, 229.
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expenses and to a reward in the amount of 10 % of the price of the thing
discovered.207
Undoubtedly, an owner may abandon a movable thing. The abandonment may be regulated or it may be subject to regulation with respect to
hygiene or the living environment.
17.
Co-ownership
Under the Czech law there are two forms of co-ownership: apportioned
(common) ownership and matrimonial (joint) ownership of property.
Co-ownership in general is so-called “ideal” since the scope of the share
does not equal a concrete portion (part) of the whole thing; rather each
co-owner is owner of the whole thing. The share is the expression of the
scope (extent) to which the co-owners participate in the rights and obligations resulting from their co-ownership. No special rules applicable to the
transfer of ownership among the co-owners or towards the third persons
exist.208 The co-owner can, upon agreement, transfer his share. The remaining co-owners have a pre-emptive right, unless the transfer occurs between
close persons (mainly relatives).209
The legal consequences arising from juridical acts of the co-owners concerning the common thing bind all the co-owners jointly and severally. On
the management of the co-ownership, the co-owners decide by majority
vote based on the size of their shares. If there is no agreement or decision
reached, the court has to rule upon a petition: in case of an important
change of the common thing, the outvoted co-owners may ask the court to
rule on this issue.210 The co-ownership can be terminated by an agreement
concluded by co-owners, or by a court decision (§§ 141, 142)
17.1.
Common ownership
Common ownership is apportioned ownership. If a real division of the object,
according to the level of co-ownership shares and the possibility of expedient
use of the object, is not possible, a court may order an adequate substitute
for one or more of the co-owners. The court will take its expedient use into
account. It can also order its sale and the sale proceeds to be divided among
the co-owners according to their shares (§ 142 par. 1 of the Civil Code).
207
208
209
210
See Act No. 102 / 1992 Coll., § 13.
See Králík M., op.cit. in Fn. 52, 879 et seq.
See § 140 of the Civil Code.
See § 139 par. 2 and Králík M., op.cit. in Fn. 52, 848.
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335
Joint ownership
Joint ownership relates to ownership by a married couple. Things acquired
by each of the spouses before the marriage do not belong in the joint ownership, even if they are used by both of them. They remain exclusively owned
by the spouse who acquired them.
If spouses have acquired a thing together based on an agreement before
the marriage, then it falls under common ownership. In the case of things
acquired in exchange for things having been in exclusive ownership of
one of the spouses or from the profit thereof, the case law establishes that
these things continue to be in the exclusive ownership of the spouse who
owned the alienated thing – the problem is merely about transformation
of the same possession.
If, however, any asset subject to joint ownership is used to acquire a
new thing, then the entire new thing will fall under joint ownership.211 It
is different when it comes to yields, uses and additions of a thing that is in
sole ownership of a spouse. The legal practice has taken an unambiguous
stance on this: they will belong to the joint ownership of the spouses, no
matter whether the thing itself is in the sole ownership of one of the spouses
or in joint ownership.212
The Civil Code excludes certain things from joint ownership, even if
one of the spouses acquired them in the course of the marriage. Inherited
things do not belong in joint ownership. If only one of the spouses is subject
to inheritance, he will acquire the inheritance by sole ownership. If both of
the spouses were subject to inheritance, the acquired inheritance will fall
under their co-ownership.213
Furthermore, things such as gifts do not fall under joint ownership and
it does not matter whether the gift was presented to one of the spouses or
to both. In the case of only one of the spouses being the receiver of a gift,
it will belong to his or her sole ownership. If both of the spouses received
the gift together, it will fall under their co-ownership. In some cases, doubts
may arise as whether one or both of the spouses were presented with the
gift (mainly in the case of wedding gifts). In such cases, the intention of
the giver will be decisive in the sense of whether he was intending the gift
for only one of the spouses or both. In most cases, the intention will be
judged by circumstances under which the gift214 was presented. The relation
between the donor and donee at the same time needs to be considered. To
judge the donee as being only one of the spouses, or both together, based
211
212
213
214
Dvořák J., Jehlička O., op.cit. in Fn. 52, 962.
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on the nature of the thing is not a correct approach. Rather, the intention
of the donor is conclusive.
The question of gifts between the spouses needs to be addressed here.
The legal practice rejects the position that one of the spouses can donate a
thing from joint ownership to the ownership of other spouse alone. Rather,
the legal practice has concluded that the nature of joint ownership itself
prevents one of the spouses, who is not the sole owner of a thing, from donating a common thing to the other spouse, who is also a joint owner of the
thing. Things intended for personal use or things used in the execution of a
job of one of the spouses, do not belong in joint ownership of the spouses.
The legal relation of joint owners to third parties is regulated according
to the disposal acts of spouses. Usual and common things may be dealt with
by either of the spouses. As to other things, the consent of both the spouses
is needed, otherwise the legal act would be invalid. The law does not specify
which things are considered usual and which are other things. This needs to
be assessed in every case individually. In concordance with legal practice,
it is important to take the nature of a thing into account, mainly its value,
as well as the purpose for which it is going to be used. Therefore the case
law considers casual things to be shopping for groceries, casual clothing,
or objects for their children’s personal use in a proportionate measure as
long as the cost is covered by joint means, fuel costs and general repairs in
a household, etc.
On the contrary, a donation of an immovable to a third party without
a legal reason, or a donation of a significant sum, is not considered a usual
thing. It is important to stress that the law requires the consent of the other
spouse and not a common act of both of the spouses when dealing with
other, not usual things. The form of this consent is not specifically prescribed, therefore a conclusive consent is enough. The legal act regarding
a thing other than a usual thing, carried out by one of the spouses without
the consent of the other, is invalid. The Civil Code sanctions this absence
of consent with relative invalidity. That means that the offended spouse (the
one without whose consent the legal act was carried out) has the possibility
to call for the invalidity of the legal act during, but subject to, the general
statutorily barred period. If he / she does not enforce this right in the given
period, the legal act will result in a valid legal act.
The Civil Code deals specifically with the question of an individual
debt of one of the spouses, which arose in the course of marriage. With
regard to the joint ownership nature of property of the spouses, the law
allows the claim of the creditor at the execution of a judgment to be settled from the property of the joint ownership. However, the execution of
a judgment cannot be carried out by a deduction from wages of the spouse
who is not a debtor.
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18. Transfer of an “enterprise” as an unspecified “set” of assets
18.
337
Transfer of an “enterprise” as an unspecified
“set” of assets
An example of a transfer of an ownership right to unspecified goods (e.g.
movable objects) is the transfer of a group of things under a “contract of sale
of an enterprise”, pursuant to §§ 476 et seq. of the Commercial Code.
It is of relevance to this report that the object of the contract of sale of
an enterprise is not individual things, individual rights, or other individual
assets, but rather the enterprise as a whole, defined in § 5 of the Commercial
Code as a set of tangible, as well as personal and intangible components
of business. It is necessary to include things (e.g. buildings, machines and
equipment, raw materials, goods, vehicles, etc.) in the tangible category.215
In other words, the object of the contract is not an enterprise as a “thing”
in its legal meaning (an enterprise cannot be listed in any category stated
in statute § 118 of Civil Code), but an enterprise as a complex set of things,
rights and other assets used for its operation.
As concerns the demand for identification of individual things belonging to the set of things, which were transferred on the basis of the
contract of sale of the enterprise, the professional practice accepts that
things used in running a company do not have to be individualized in the
contract and that it is enough to mark the company being sold distinctly
enough. According to this opinion, the concrete specification of things
(as well as rights and other assets) used in the operation of the enterprise,
which are transferred to the buyer, is not a condition of the validity of
the contract.
It is clear that some of the components of the enterprise cannot be
individually marked (e.g. raw material, goods, etc.). It is advised, however,
in the interest of peace of the contracting parties, that the object of the sale
is marked distinctly enough. The specification of things, rights and other
assets used in the operation of the enterprise is usually an attachment to
the contract. According to the circumstances of the case, the bases of accounting may be used or possibly cited.216
On the day the contract is effective, by law all the rights and obligations
concerning the enterprise pass to the buyer, without consideration of the
legal reason for their creation, contents, payment, etc. This is mainly the
case of a transfer of ownership right for things belonging to the seller and
used in the enterprise’s operation. In these relations, the buyer enters the
role previously occupied by the seller, without any further written agreements.
215
216
See Plíva S., in: Štenglová J., Plíva S., Tomsa M. (eds.), Obchodní zákoník, Komentář
(Commercial Code, Commentary), 12th ed., Praha 2009, 1048.
See Plíva S., op.cit. in Fn. 215, 1052.
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338
19.
Bulk sales and floating charges
There are no statutory provisions under Czech law, according to which
a buyer acquires co-ownership of the bulk by prepaying for a quantity of
fungible goods included by the bulk. However, the parties can achieve this
effect by agreement. The share of the bulk shall equal the proportion of
the quantity of purchased goods in relation to the quantity contained in
the whole bulk.
Czech law does not recognize the so called floating charge, meaning a
registered security right in the whole of the assets.
20.
Restitution
20.1.
Legal framework
In the situation of a transfer based on a void contract, invalid right of use,
unjust use based on expired contract, etc., rules of unjust (unjustified) enrichment apply. Unjust enrichment is defined as a material benefit achieved
i.e. by performance without legal cause (purpose) or on the basis of a void
juridical act (§ 451 par. 2).
Everybody who has been unjustly enriched must return whatever he
acquired (§ 451 par. 2). The unjust enrichment must be returned to the
person who suffered a detriment as a result of its acquisition (§ 456). These
general rules are specified by a (superfluous) provision, that in case of a void
contract each of the parties is obliged to return to the other everything that
either of them obtained pursuant to such contract (§ 457).217
20.2.
Remedies
A so called ownership claim based on § 126 has also been admitted. In
other words, based on the allegation of a violation of property rights, the
owner can use the “direct” protection and claim the restitution of the thing
(object) regardless of the previous obligatory relationship based on the
(invalid, avoided) contract or the unjustified enrichment relationship.218
217
218
Also see Škárová M., op.cit. in Fn. 52, 1344.
See e.g. Spáčil J., Vztah vlastnické žaloby na vydání věci k žalobám z některých
jiných právních vztahů (Comparison of the claim on reivindication to other kinds
of claims), PrFo 2005. It must be, however, underlined that the court practice varies.
Some courts do not accept this “parallel” approach in acknowledging as a rule only
the obligatory claim as opposed the claim in rem.
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20. Restitution
339
The difference between unjust enrichment and ownership claim is of
relevance:
(a) All property rights may become precluded except the right of ownership (§ 100 par. 2). The claim of restitution resulting from unjust
enrichment becomes precluded in two years after the date the claimant became aware of the unjust enrichment and the enriched person
(§ 107 par. 1).219
(b) Under the regime of a revindication (in rem) claim, also the fruits
(proceeds) must be surrendered (restituted), regardless of the existence
of a bona fide possessor. In case of restitution within the unjust enrichment claim, the fruits must be surrendered only if the person unjustly
enriched acted mala fide (§ 458 par. 2 arg. e contrario).220
(c) The unlawful possessor has no right of reimbursement of any expenses
necessary for maintenance incurred with respect to the thing returned,
whereas in the case of restitution of unjust enrichment the owner has
to compensate the necessary maintenance costs of the possessor in
connection with the possession of the thing.221
20.3.
Examples of application
1. In case of a “classical” invalidity of the juridical act by which property
rights have been “transferred”, also the direct ownership claim can be
applied. Since the “absolute” invalidity takes place having a retroactive
effect, which presupposes the situation as if there were no juridical act,
the conditions for the revindication (in rem) protection are met. The
possessor, who, in this situation does not follow the call for surrender,
equals the wrongdoer who infringes another’s ownership without the
previous existence of an obligatory relationship.222
2. Where there previously existed a right to use the goods as between the
possessor and the owner of the goods (i.e. there was a legal relationship
based on a lawful juridical act), but this right of use has now ended, only
restitution of unjust enrichment should take place (“the legal ground
ceased to exist” – § 451 par. 2 in fine).223
3. Where goods were stolen, the owner may recover them from the possessor by means of revindication. Theft means “direct” violation (infringement) of the ownership. There is no performance which presupposes
219
220
221
222
223
Švestka J., op.cit. in Fn. 52, 609-611.
Škárová M., op.cit. in Fn. 52, 1351.
See § 458 par. 3 Civil Code and Škárová M., op.cit. in Fn. 52, 1352.
See §§ 126 and 458 and the Comments of J. Spáčil in Fn. 52 on § 126, 690 f.
See also the comments on § 451, Škárová M., op.cit. in Fn. 52, 1324 et seq.
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340
existence of a legal relationship as clearly opposed to a criminal act.
Having said that, the restitution of unjust enrichment can hardly be
admitted.224
4. Recovery of the goods may also be claimed in situations where three
parties are involved; in particular where a non-owner has purported
to transfer the goods to an “acquirer”, provided that no good faith acquisition takes place; or where a right of use has been granted by the
non-owner. Third-party situations should not be impacted by whether
the contract was gratuitous or not. In principle the “parallel” approach
(like under 1., 2. supra) should be applied.225
5. In garage cases – i.e. where a non-owner contracts with a garage-owner
to repair the goods, but refuses to pay for the work and leaves the goods
at the garage – the revindication claim of the (real) owner against the
garage owner should be admitted. He has then redress based on unjust
enrichment against the thief.
20.4.
Entitlement to benefits
As mentioned above (see 3.2.3.), the law (as opposed to the jurisprudence)
does not distinguish between different categories of benefits. It does not
even acknowledge this term (fruits), which is covered by the more generic
term “accruals” in § 135a.
As indicated above in case of revindication (claim in rem), all fruits
(accruals) have to be returned. In applying the unjust enrichment approach, the bona fide possessor is entitled to all proceeds, which includes
any fruits.226 The Czech Civil Code does not acknowledge any other criteria
relevant with respect to entitlement of fruits. Everything that was acquired
as unjust enrichment must be returned. If return is not feasible, monetary
compensation must be provided (§ 458 par. 1).
The implication of this rule is that there is no defence in favour of the
possessor. In other words, the provision of § 458 par. 1 introduced a very
clear, strict regime of responsibility of the possessor. No matter what reason
from which the failure of natural restitution results, the possessor is obliged
to perform.227
224
225
226
227
See Spáčil J., in Fn. 52, 744.
See op.cit. in preceding footnote, 738-743.
See § 458 par. 2 of the Civil Code a contrario.
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20. Restitution
20.5.
341
The consequence described above applies even if the loss, deterioration,
etc. of the thing to be returned is the result of an act of God or of a third
party. A minority opinion admits that also a claim for damages could be
plausible.228 Compensation should represent the market value.
However, one must distinguish between a good faith possessor and a bad
faith possessor. The unlawful (bad faith) possessor is obliged to compensate
the owner for any damage caused by unlawful possession.229 For liability for
the damage to occur, the fault is not needed, even though it does exist in
most cases.230 As far as the scope and manner of compensation of restitution of such damage is concerned, the general statutes of the Civil Code
on liability for damage are employed.231
As opposed to a bad faith possessor, the liability for a loss or eventual
deterioration of the movable is not regulated in the case of a good faith
possessor, which is accounted for principally by the statutory principle provided by the Civil Code that, unless otherwise provided by law, the lawful
possessor has the same rights as the owner.232 The good-faith possessor has
thus all the rights constituting the ownership right. If, in causal relation
to the execution of his quasi ownership rights (destruction of a thing),
the good faith possessor allows loss, deterioration or even destruction of a
thing, the original owner cannot claim damages. The stated case lacks one
requirement of tort liability, namely an unlawful act.
20.6.
Reimbursement for improvement or expenses
20.6.1. Generally
Under Czech law, the issue of improvements made to, or expenses incurred
for, goods owned by another person, is covered by two sets of rules. On the
one hand, such situations are subject to the rules on unjustified enrichment;
on the other hand, provisions on property law apply.
Unjustified enrichment. Regarding unjustified enrichment law, there is
merely one court decision published on compensation for improvement.
The court ruled233 that the compensation (for improvement of an immov228
229
230
231
232
233
See Škárová M., in: op.cit. in Fn. 52, 1351.
See § 420f of the Civil Code.
See R 26 / 1975, dealing with §§ 457 and 458 of the Civil Code.
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342
able) equals the difference between the value of the thing before and after
the investment has been made, as opposed to the amount of money invested. There is no opinion (either in case law or jurisprudence) as to the
definition of improvement, which is the basis (“trigger”) for any compensation available.
However, based on the rule in § 458 par. 3, which states that a person
who returns unjustified enrichment has the right to be compensated for
necessary expenses incurred in respect of the object returned, one may conclude that there is no legal basis for any claim for compensation beyond the
level of necessary expenses, which excludes any “improvement” in a narrow sense (as opposed to “necessary expenses”). Necessary expense means
the useful costs that were directly (necessarily) linked to the required due
care.234 One can conclude that in assessing this, objective criteria shall be
applied.235 The claim for compensation is justified regardless of whether the
possessor acted in good faith (see the wording of § 458 par. 3 as compared
to § 458 par. 2, where – in case of the surrender of the proceeds – good faith
is required).
Property law. Under property law rules, the good faith possessor has a
claim for reimbursement of the costs against the owner, which the possessor reasonably incurred on the thing during the time of a lawful possession, to an extent corresponding to the appreciation of the thing on
the day of its return, with one exception: customary costs (expenses) of
maintenance and operation shall not be refunded.236 “Customary costs of
maintenance” are costs that keep the thing in a state fit for proper use
and functioning according to its purpose, provided these costs do not depreciate the thing in any way.237 The costs that the good faith possessor
incurred for appreciation of the possessed thing are estimated by comparing the state of the thing at the moment of acquiring lawful possession of
it and the state of the thing on the day of its delivery to the owner. It is
important to emphasize that the comparison of the states does not mean
the delivery of all the costs, but only costs to the extent of the possessed
and delivered thing.
It is also appropriate to indicate the similarity of the claim of possessor vis-á-vis the owner with the claim of ex unjust enrichment. These are,
however, individual and mutually unrelated claims regulated by individual
statutes of the Civil Code. Apart from its assumptions, the difference in
statutory regulation of these claims manifests itself e.g. in the length of the
prescription period, when the possessor’s entitlement to costs reimburse234
235
236
237
See R12 / 1989; Škárová M., op.cit. in Fn. 52, 1351 f.
See § 130 par. 2 of the Civil Code (quoted in Fn. 56 above).
See § 130 par. 3 of the Civil Code (quoted in Fn. 56 above).
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20. Restitution
343
ment is barred by statute under the general three-year prescription period,
whilst the prescription period of costs ex unjust enrichment is regulated by
the Civil Code in § 107 as “particular” periods.
The unlawful possessor may, pursuant to § 131 par. 1, deduct the costs
(expenses), which were “necessarily” incurred in connection with the
maintenance and operation of the thing from the amount of compensation for any damage caused by unlawful possession. The result of the cited
statutory provision is that the bad faith possessor is entitled to deduct the
stated costs only in the case where damage was incurred by the owner due
to the unlawful possession. In contrast, if damage was not incurred by the
owner in this manner, the unlawful possessor is not entitled to reimbursement of these costs. On the other hand, the unlawful possessor may also
sever that part of the thing that he appreciated at his own expense, if this
can be done without impairing the substance of the thing.
20.6.2. Possessor’s right to retain the movable
The possessor is not entitled to retain the thing, provided the owner meets
the requirements for surrender or compensation stipulated by the Civil
Code. In other words, once the conditions for in rem protection or redress
based on unjust enrichment are fulfilled, there is no defence of the possessor. Good faith (if any) is irrelevant in this respect.
The possessor may refuse to render his performance (to return the movable) until the reciprocal performance is rendered or secured, if owner’s performance is put at risk by circumstances which occurred with the owner and
were not known prior to the decision or the agreement between owner and
possessor on surrender of the unjust enrichment. This is the result of the
interpretation of a general rule on performance of debt in the Civil Code.238
In the case of retaining a movable by the possessor to secure his pecuniary claim for reimbursement of costs, which the possessor reasonably
incurred on the movable thing during the time of lawful possession, vis-á-vis
the owner, the Civil Code does not govern a particular right of pledge for
the possessor. Under property law it is possible to apply to this stated case
the general statutes on right of lien, such as the right in rem to an alien
thing pursuant to §§ 151s ff, since it is a case of retaining a movable asset
to secure a pecuniary claim (receivables). The possessor as a creditor in
this case has the right to secure his outstanding debt by retaining a debtor’s
(owner’s) thing, which will be held in his factual power until it is fully paid.
According to §§ 151s et seq., he is however not allowed to arbitrarily retain
the thing or craftily sequestered it.
238
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344
20.6.3. Expenses of the restitution
Under § 121 par. 3, the expenses associated with a claim are ancillary to this
claim and belong to its owner. If the owner is successful as to the principal
claim he can also claim compensation for the expenses. The Civil Code
does not regulate the matter of restitution of expenses in connection with
the restitution of a movable to the owner. (This is mainly a question of who
bears these expenses).
In principle it can only come down to two scenarios: either a voluntary
or an involuntary restitution of a movable between the owner and possessor may take place. The question of “lawfulness of possession” or the
“good faith of the possessor” is irrelevant, even though it is not entirely
insignificant, mainly in the case of a decision of a court when the parties
did not come to an agreement or in the case of involuntary restitution of
things to the owner.
If it was a case of voluntary restitution, under the principle of “party
autonomy” or “freedom of contact”, it is above all upon the agreement of
both parties (owner – possessor) who shall bear the costs of restitution of a
movable to the owner, or whether they shall bear the costs together and in
what ratio, etc. If no agreement is reached, upon the request of one of them,
the decision will be made by court, bearing in mind all the circumstances of
the specific case. In this case, a voluntary restitution of things based on an
effectual decision of court is not considered a voluntary restitution.
In case of an involuntary restitution (after a valid conclusion of the
restitution proceedings), the objects shall be returned upon a valid or possibly an enforceable decision of the court, which places a duty on the possessor to “surrender” the thing to the owner. We are of an opinion that
the judicial dictum placing such a duty implies an obligation to bear all
the costs related to the fulfilling of this obligation (whether it is voluntary
or involuntary). Another interpretation would appear unreasonable and
contra bonos mores.
20.7.
Commentary
The current legal framework is very concise for covering a very comprehensive field, and perhaps too concise. Moreover, neither the case law nor the
jurisprudence is able to fill the gaps left by such a concise treatment. Hence,
a certain number of practical questions remain herein unanswered, or they
are “resolved” through the author’s speculations. Unfortunately enough,
the Draft, particularly in questions of co-ownership and unjust enrichment,
does not offer better solutions.
www.sellier.de
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ABGB (Allgemeines
Bürgerliches
Gesetzbuch)
Austrian Civil Code, adopted 1811, still in
force in Austria, in the Czechoslovak Republic
repealed as of January 1,1951
ADN
Ad notam – legal journal
Civil Code
Act No. 40 / 1964 Coll, current law, many time
amended, mainly after 1990
Act No. 141 / 1950 Coll.
Act. No. 40 / 1964 Coll entered into effect as of
April 1, 1964, in the original wording
Civil Code / 1950
Civil Code / 1964
Draft Civil Code
Draft of the (new) Civil Code for the Czech
Republic, firstly published in May 2005,
submitted to the Cabinet in February 2009
PP
PR
PRá
Právní praxe (Legal practice) – legal journal
Právní rozhledy (Law review) – legal journal
Právní rádce (Legal advisor) – legal journal
R
Decision of a court of the Czech Republic, in the
rule of the Supreme court of the Czech Republic
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in Slovakia
Ivan Petkov
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Table of Contents
Introduction and background
A. The history before 1950
359
B. The Civil Code from 1950
360
C. The Civil Code from 1964
361
Part I:
1. Notion of ownership and types of property rights
1.1. General basics
1.1.1. Sedis materiae
1.1.2. Main characteristics of rights in rem
1.1.3. The numerus clausus of property rights
1.2.1. Definition and scope of ownership
1.2.2. Restrictions on ownership
(a) Legal restrictions
(i) Legal duty not to interfere
(ii) Prohibition on damaging human health,
nature, cultural monuments and the
environment
(iii) Using property without the owner’s consent
(iv) Restriction on ownership ad hoc
(b) Restriction by authority statements
(c) Restriction created by owner’s legal act
1.3. Other property rights
1.3.1. The right of pledge
1.3.2. The right of lien
1.3.3. The right of pre-emption
1.3.4. Real burdens (easements, servitudes)
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363
364
364
365
365
367
368
368
368
369
369
370
370
370
371
373
373
373
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1.4.
1.5.
1.4.1. Protection of ownership
(a) General means of protection
(b) Special means of judicial protection –
“ownership actions”
(c) Another means of judicial protection
1.4.2. Protection of other property rights
1.4.3. Another means of protection
(a) Claim for damages
(b) Particular procedural remedy – injunction
(c) Insolvency
Transferability of movable property
1.5.1. General
1.5.2. Restrictions on transferability based on
agreements
1.5.3. Separate transferability of accessories
2. Possession
2.1. Notion of possession
2.2. Functions and forms of possession
2.3.1. General remedies for protection of possession
2.3.2. Special judicial remedies for protection of
possession
2.3.3. Self-help
3.1. Notion of “property”
3.2. Classification of the objects of property rights
374
374
374
375
376
376
378
378
379
379
380
380
381
381
383
384
386
386
387
387
388
389
Part II:
4. Basic characteristics of the “transfer system”
4.1. “Generic goods” and identification
4.1.1. Generic goods
4.1.2. Individualisation of generic property and
identification
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392
393
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5. Elements of transfer required by law
5.1. Right to dispose
5.2. Delivery of possession and its forms and equivalents
5.3. Registration
394
395
398
6. Disposition and underlying obligations
6.1. Requirement of a valid obligation to transfer ownership
6.1.1. Different forms of defects affecting transfer
of ownership
6.1.2. Conditional contracts
7. Rules for double or multiple selling
7.1. Both A – B and A – C are governed by civil-law
7.2. A – B is governed by civil law and A – C by
commercial law
399
401
403
404
405
8. Rules for “selling in a chain”
8.1. General rules for valid contracts
8.2. Rules when contracts fail
8.2.1. Civil law relation between A – B – C
8.2.2. Commercial law relation A – B – C
407
408
408
408
9. Transfer by means of indirect representation
408
10. Consequences of insolvency of transferor or transferee
10.1. General issues
10.1.1. Actio Pauliana
10.2. Insolvency of transferor
10.3. Insolvency of transferee
409
412
413
414
11. Passing of ownership and passing of risk
415
Part III:
12. Acquisition by accession, commixture, specification
12.2. Commixture and confusion
12.3. Specification (processing)
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419
419
419
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13.2. Quality of good faith
14. Acquisitive prescription of movables
14.1. Functions and requirements of acquisitive prescription
14.2. The period of acquisitive prescription
14.2.1. General
14.2.2. Specific rules on suspension and renewal
of the period
(a) Suspension in case of judicial or similar
proceedings
(b) Running of period between statutory
representatives and minors and between
husband and wife
(c) Termination in the running of
prescription period
14.3. Consequences of acquisitive prescription
14.4. Prescription of ownership
15.1. Finding of lost, abandoned or hidden property
15.1.1. Lost property
15.1.2. Hidden property
15.2. Acquisition of natural fruits (separation)
421
423
425
427
427
427
427
428
429
429
430
431
431
431
432
433
Part IV:
16. Rules on reservation of title
434
17. Abandonment
435
18. Transfer rules for co-ownership
18.1. Common ownership
18.2. Joint ownership
437
439
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19. Further rules applying to unspecified goods
19.1. General aspects
19.2. Transfer of an “enterprise” as an unspecified “set”
of various assets
19.3. Identification of an “enterprise” to be transferred
441
442
443
20.1. Entitlement to benefits (“fruits”) of the movable
20.3. Reimbursement for improvements and expenses
20.4. Possessor’s right to retain a movable
20.5. Expenses for the restitution of a movable to the owner
444
444
445
446
447
Table of Literature
448
449
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A.
The history before 1950
Historically, the main source of private law in Slovakia, from about the
6th century to 1950, was customary law. Later in Hungary, which Slovakia
became a part of after the demise of the Great Moravian Empire in the 10th
century, the original Slavic customary law came under a strong influence
of Germanic, canonical and mainly Roman private law; Roman private
law had the biggest influence on Hungarian customary law in the 12th to
16th centuries, although it was never generally received into it. Later on,
particularly after the Austro-Hungarian union under Habsburg rule starting in 1526, private law in Hungary became influenced by Austrian law.
Even in the period of Bach’s absolutism, Austrian law was briefly, but fully,
implemented.
These influences gave rise to several attempts to codify the existing
customary law. The most important was the work of a significant Hungarian lawyer from Vrbovce, Štefan Verböczy, possibly of Slovak origin, in the
year 1514: the “Opus tripartitum iuris consuetudinarii inclyti Regni Hungariae
partiumque adnexarum” (“Tripartitum”). It is written in Latin with a high
number of foreign terms, including many words of Slovak origin. Despite
efforts to codify customary law in Hungary using the Tripartitum, it was
not enacted and never became a code. However, the Tripartitum did not
mean the end of the period of customary law in Hungary; rather an unwritten customary law was later transformed into written customary law.
Apart from customary law serving as the main source of private law,
other laws did exist and there were significant efforts to put these together
into a codex, of which the most famous and respected was the codex published in 1696 under the name of Corpus Iuris Hungarici. Its author, the
Slovak Martin Svätojánsky / Szent-Iványi / , was a native of Liptovský Sv. Ján
and a professor at Trnava University. Tripartitum became part of it and this
code (codex) was incorporated into the customary law system.
As a consequence of revolutions in 1848, the basic principles of feudal
private law came to an end in Hungary, which also caused the whole private law based on the Tripartitum and Corpus Iuris Hungarici to come to an
end. This vacum iuris was to be filled by a new civil code, but due to the
victory of Bach’s absolutist regime, it was Austrian private law that filled
the vacuum, i.e. the General Austrian Civil Code (ABGB) of 1811 and
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other Austrian private law statutes. However the 1860s saw the renewal of
Hungarian customary law.
After the collapse of the Austro-Hungarian Empire, Slovakia became
part of the Czechoslovak Republic by the will of the Slovak people. Code
No. 11 / 1918 Coll. was received as the current civil law, valid in the Czech
Republic and in Slovakia; the General Austrian Civil Code of 1811 remained valid in the Czech Republic and Slovakia retained the original
Hungarian customary law and other civil regulations adopted in Hungary.
This legal dualism of civil law remained in effect until 1950, until the publishing of the first Czechoslovak Civil Code.
B.
The Civil Code from 1950
With the adoption of a new Civil Code No. 141 / 1950, which came into
effect on 1 January 1950, this historical period of dualism of the General
Austrian Civil Code in the Czech Republic and Hungarian customary law
in Slovakia came to an end. After 30 years of the existence of a Czechoslovak state, a unified codex of civil law was created that was in effect in the
whole of Czechoslovakia.
The new contents of civil regulation were most apparent in the area of
property rights, mainly the right of ownership: the general and unified notion of ownership was abandoned, as was the division of ownership rights
into certain types and forms, namely the socialist common ownership, personal
ownership, and private ownership. All property was exclusively owned by
the state. Only that property designated for personal use by an individual
and acquired from sources secured mainly by the individual’s labour could
belong to personal ownership.
The Civil Code presumed that the property necessary for the personal
use of an individual was transferred from the socialist common ownership
to personal ownership. However the extent of personal ownership was limited, e.g. a small family house could not have more than five rooms of no
more than 120 m2 in total etc. If an individual owned property exceeding
these prescribed limits, that “extra property” was considered as belonging
to his / her “private ownership”. The Civil Code thus strictly distinguished
between the terms “personal ownership” and “private ownership”. The intention of the state was to gradually restrict and then to abolish private
ownership all together.
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C.
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The Civil Code from 1964
The Civil Code from 1964 had a “narrow concept” limiting itself to regulation of relationships concerning settlement of personal needs of citizens.
This, along with its content, method of regulation, systems used, the nature of its numerous statutes, notions, and terminology, all contributed to
a general degradation of civil law and to the restriction of its function in
practise.
It also differed from foreign civil codes with its peculiar terminology,
which resulted in this Czechoslovak regulation being completely incomprehensible to the rest of the world.1 This Civil Code did not recognize
traditional civil-law notions and terms, such as law of obligation, property
law, possession, acquisitive prescription, lease, borrowing, and others. A
partial remedy of these shortcomings occurred 19 years later with the adoption of a larger amendment in 1983.2 However, this amendment did not
remedy all the flaws in civil regulation, which flaws were constantly highlighted by theory and legal practise. Once again, the notion of possession
in connection with its protection, as well as acquisitive prescription, was
re-introduced in a considerably limited and deformed way.
New social, economic and political conditions and changes, which
took place after November 1989, required a significant reconstruction of
the whole legal system, including private law. At this time preparatory
legislative work was under way for the new Civil Code. However, due to
time constraints, not all of the Civil Code from 1964 was withdrawn and
replaced by a completely new one as had been planned; rather the old Civil
Code was amended considerably by Act No. 509 / 1991 Coll., in effect from
1 January 1992.3
The basic regulation of private law adopted in Czechoslovakia in 1991
in the form of an amended civil and commercial code was considered a temporary solution by the jurisprudence, the practise and the legislative representatives, which was to be replaced within a short time by an adequate
re-codification of private law. The need and necessity of the re-codification
of private law was acknowledged from the very beginning and is still being
acknowledged.4 To date, the expected re-codification of private law has
not happened yet.
Another problematic area was the adoption of the Commercial Code
in 1991, which was created without correspondence to the amended Civil
1
2
3
4
It is important to stress here that this codex is applicable and in effect, although in
a considerably altered state, until today.
Act No. 131 / 1982 Coll. in effect from 1st April 1983.
Lazar, J. et al.: Občianske právo hmotné, zväzok 1. Bratislava, 2006, p. 43-66.
Ibid, p. 65.
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Code. The Commercial Code is an exceptionally large legislative work with
a very uncommon content, in which general civil regulations often occur,
which is rarely found in other similar foreign commercial codices. As a
consequence, several institutions and statutes in the Commercial Code are
not in concordance with the relevant statutes in the amended Civil Code.
It is not unusual that some institutions, mainly in the area of contract law
and law of obligations, are regulated twice. Such duplication is e.g. in the
case of a contract for sale, contract for work, means of claims security and
many other cases. There is hardly any reason for both the Civil Code and
the Commercial Code to regulate the matters of statute-barred periods,
preclusion, conditions of contract conclusion, withdrawal from contract,
matters of legal liability and others, differently.
Apart from the fact that the basic private regulation is non-transparent
and unsystematic, the private law does not contain any consistent or interconnected contractual system. This is the reason there are significant
problems, difficulties in interpretation and application in practise, all of
which also contribute to the inconsistency of some parts of this report.
Many rules applicable in the area of commercial relations are paradoxically
more precisely regulated in the Commercial Code than in the basic regulation of general private law.
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Part I:
1.
Notion of ownership and types of property rights
1.1.
General basics
1.1.1. Sedis materiae
The basic source of legislation governing rights in rem in movables within
the Slovak Republic is the Civil Code (Act No. 40 / 1964, as amended and
herein under referred to as “Civil Code” or “CC”), which was adopted
on 26 February 1964 by the then Federal Assembly of the Czechoslovak
Socialist Republic. It took effect on 1 April 1964. However, the original
wording of the Civil Code was amended several times due to significant
changes in the political and social systems, as well as due to a transition
from a centrally planned (command) economy to a market economy. As of
today it has been amended 38 times, the most significant and most extensive amendments being Act No. 131 / 1982 and Act No. 509 / 1991).
The Civil Code is a basis for the whole property law system: it sets forth
the definition and character of property rights (ownership and the other
restricted property rights – in rem, possession), the rules of acquisition, creation, transfer, modification, the entitlements arising out of these rights and
their exercise, as well as protection against infringements by third persons.
The Civil Code also contains the legal regulation of the general, as well as
the individual, parts, of contract law whose institutions (mainly so-called
alienation contracts such as contracts for sale, barter contracts and donation contracts) are directly connected to the establishment and disposal of
property rights.
It is necessary to mention here another special source of private law
in the area of commercial relations, which is the Commercial Code (Act
No. 513 / 1991 as amended, hereinafter at times referred to as the “ComC”).
As will become clear in this report, many transfer rules for movable assets or
goods are paradoxically regulated in much more detail in the Commercial
Code than in the Civil Code, which may be due to their specific nature,
chief among which are the statutory regulations of the contract of purchase
in the area of commercial relations.
It was necessary in several places in this report to deal with model situations specifically according to the civil-law regulation and subsequently
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according to commercial-law regulation (sometimes with grave differences
in the consequences). Even though according to Sec. 1 para (2) of ComC
there is a subsidiary relation between the code of general private law in the
Civil Code and the Commercial Code – as individual private law, for the
purpose of this report, the rules of commercial-law regulation often served
to support interpretation of the very general rules of the Civil Code.
Furthermore in the field of public law there are procedural rules applicable to the transfer of movables, which are mainly from the Civil Procedure
Code – Act No 99 / 1963 Coll. as amended, Bankruptcy Act No 7 / 2005
Coll., Bailiffs’ Code – Act No 233 / 1995 Coll., Act No 568 / 2007 Coll. on
Voluntary Auctions, etc.)
1.1.2. Main characteristics of rights in rem
Institutional regulation of rights in rem in the Slovak legislation, in its very
essence, reflects the historical development of such rights in continental
Europe on the basis of principles enshrined in Roman law, and consequently in the context of extensive European codifications of private law, mainly
in Germany and Austria.
The essence of rights in rem, in contrast to obligations, may be seen
in the legal status of a beneficiary whose legal dominion over his object
is exclusive. Everyone must respect these exclusive rights and everyone is
eligible for protection of such exclusive rights vis á vis third parties. Rights
in rem are absolute rights, and as such they may be invoked erga omnes. On
the other hand, obligations do not guarantee any direct dominion over the
object by the beneficiary, but rather envisage the existence of a legal link
between the object and a particular person through whom this right may
be exercised. This dominion over the object may be provided for only in
co-operation with other entities who are a party to the relative obligation.
In other words, obligations as a part of a relative legal relationship operate
only inter partes.
1.1.3. The numerus clausus of property rights
In principle, freedom of contract applies in the sphere of obligations. As
far as rights in rem are concerned, the parties have the discretion and may
freely decide whether they will establish rights in rem by contract; however,
their choice of type of contract is limited by the numerus clausus principle.
In Slovak law the system of rights in rem, as a sub-system of property rights,
is relatively stable and may be divided into two groups inspired by the
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systematic classification of rights in rem in the Roman jurisprudence: ius
proprietas (ownership right and possession5, if the possessor is a person other
than the owner); and, iura in re aliena (pledge, easement, lien, pre-emption
right, provided that it was agreed as such in a supplementary covenant in
case of the contract for sale).
1.2.
Notion of ownership
1.2.1. Definition and scope of ownership
Legal rules applicable in the Slovak Republic are not consistent in drawing
a distinction between the terms “ownership” (dominium, proprietas) and
“ownership right” (ius proprietas). In the relevant provisions of the Civil
Code (Part Two – Rights in Rem, First Chapter – Ownership Right) that
govern and regulate the ownership of movables and immovables, the terms
“ownership right” and “ownership” have the same meaning. Therefore, the
term “ownership” can be found in individual provisions very frequently [see
Sec. 123 “…subject of his ownership …”; Sec. 125 “…law prescribes which
property may be solely the subject of the state ownership …”; Sec. 132(1)
“ownership of the property may be acquired …”; Sec. 135(1) “shall become
the subject of the state ownership …”], whereas the term “ownership right”
is rather an exception [see Sec. 126 “…eligibility for protection against
anyone who intrudes onto and infringes the ownership right …”; Sec. 128(2)
“… (…) there may be restrictions imposed on the ownership right in public
interest …”].
However, there is a difference between the terms “ownership” and
“ownership right” in light of legal theory based on the scientific knowledge
that the term “ownership” represents an economic category and relation,
whereas the term “ownership right” is a legal relation or category. However,
both terms are used interchangeably in the applicable Slovak legal rules as
well as in peer-reviewed legal literature, where they always specify a legal
form of ownership.6
5
6
Legal quality of the possession is in dispute, because the actual control of the property does not clearly indicate who the owner of the property really is. Even though
legal rules provide that the possessor has the powers analogous to the ownership
right, including the means of protection, possession itself seems to be a certain
condition existing between the possessor and the property in their mutual relation,
rather than the subjective right, even though legal rules provide that the possessor
in consequence of the existence of such conditions has certain subjective rights.
Lazar, J.: Základy občianskeho práva hmotného, Volume 1, Second Edition. Bratislava 2004, p. 208.
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Nonetheless, a fine distinction must be drawn between, on one hand,
the terms “ownership or ownership right” and, on the other hand, the
term “right of ownership or right to own the property”, which is guaranteed and protected under the Slovak Constitution [see Article 20 of the
Slovak Constitution, and Article 11 (1) of the Human Rights Act – Constitutional Act No. 23 / 1991]. In addition to the guarantee of the right of
ownership, the Constitution also enshrines the so-called “social function of
the ownership right” according to which the ownership is not only a right,
but also an obligation. Speaking in constitutional terms, this limitation is
expressed in the formulation “the ownership is binding” [Article 20(3) of
the Slovak Constitution]. Based on this principle, the owner (when promoting his individual ownership interests) must also respect the interests
of others, mainly in matters of public interest. By exercising his ownership
right the owner may not harm human health, nature, cultural heritage or
the environment.
The ownership right is defined directly in Sec. 123 of the Civil Code,
which specifies the content of the ownership right by stipulation of “interests linked to the right of ownership”. The ownership or subjective ownership right is defined by law as the owner’s legal right to possess, use, and
enjoy the subject of his ownership, as well as the fruits, yields and benefits
derived there from, and his legal right to dispose of the same (uti, frui,
possidere, disponere) within the limits of law. In addition, there is also the
owner’s eligibility for protection against any unauthorised intrusion into,
and infringement of, his ownership right, as laid down in Sec. 126 of the
Civil Code.
Ius possidendi lies with the owner of the property and represents the existence
of actual dominion over the property that is the subject of his ownership. At the
same time the right to possess the property is a basis and precondition for other
constituents of the ownership right. It is simply unthinkable that the owner
might dispose of the property, use the same and enjoy fruits, yields and benefits
derived there from without having de facto control of, and dominion over, it.
On the other hand, a distinction must be drawn between ius possidendi and the
right of possession, which lies with a person other than the owner. In this case
there is no ius possidendi, which is an immanent constituent part of the ownership right, but it is rather a specific legal relation of the “possession” governed
and regulated separately in Sec. 129 et seq. of the Civil Code.
Ius utendi enables the owner not only to use the property, i.e. to appropriate
its fruits, but also not to use or let any third person use the property (including
fruits, yields and benefits derived there from), change the nature of the property,
or as a result of its use consume the same if it may be consumed by its nature.
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Ius fruendi may exist only with respect to either the appropriation of fructus
naturales (e.g. fruit belonging to the garden owner) or fructus civiles (e.g. interest
accrued on the deposit account).
Ius disponendi enables the owner of the property to exchange it for anything
else, i.e. to convey the ownership of the property to a third party. However, a
distinction must be drawn between ius disponendi and other rights of disposition,
e.g. whereby the use of the utility value of the property is left to a third party (in
a form of a lease, leasing, etc.). These cases are also regarded as the exercise of
ius disponendi, however, there is no change in the owner as a result thereof.
The concept of the ownership right is, to a certain extent, a limited subjective right widely governed and regulated by applicable Slovak legal rules,
first of all the Slovak Constitution. This limitation results from the definition of the ownership right in Sec. 123, which reads that the owner is
“within the limits of law authorised to …”. This provision operates as lex specialis in relation to the general clause contained in Sec. 3 (1) of the Civil
Code, under which the exercise of rights (i.e. including but not limited
to the ownership right), and fulfilment of duties and obligations arising
out of civil relations may not, without any legal cause, interfere with the
rights and legitimate interests of others, and may not be contrary to good
morals.
1.2.2. Restrictions on ownership
Coming from a general conception of “right, abuse, prohibition” in Slovak
private law, it is possible to reason terminologically that the restriction of
the ownership law is above all the restriction of its enforcement, or, in other
words, the legal boundary of its enforcement whereby upon trespassing this
limit the enforcement becomes prohibited or it becomes a prohibited act.
According to its nature, the limitations of ownership law are (a) internal
(immanent or notional), i.e. those that stem directly from the notion of
ownership and which can be, after all, deduced from the general rule of “an
ownership binds”, (b) external (ad hoc), i.e. those not stemming from the
nature of ownership, but which are adopted by the owner himself or which
are imposed upon him or her by a court or an administrative state authority,
or in a special case, by the law.
From the point of view of the creation of individual restrictions, there
are restrictions that are (1) legal [either civil or statutory], (2) imposed on the
owner by execution of a court or by an administrative authority, (3) created by a
legal act. The restriction of ownership lies in the duty of the owner not to act
on something (omittere) or to bear something (pati), and only exceptionally
in the duty to act on something.
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(a)
Legal restrictions
(i)
Legal duty not to interfere
The general immanent duty of the owner not to interfere with someone’s
ownership by the exercise of his own ownership right (part of a wider obligation neminem laedere) is not explicitly expressed in the Civil Code.
Albeit, it does exist and it is de lege lata expressed in certain general and
specific provisions of the Civil Code.
It is mainly Sec. 3 (1) of CC according to which the exercise of rights
and performance of duties (obligations) arising from a civil relationship
may not, without legal grounds, interfere with the rights and justified interests of others, and may not be inconsistent with morality. Further, Sec.
126 of CC guarantees the owner legal protection against everyone who
interferes illegally with his ownership right; § 415 and 417 – the rules that
everyone has to act in a way as not to harm anyone’s health or property,
nature or the environment – and the latter offers preventive protection
(self-help or protection provided by court of law) to everyone under a
threat of damage.
(ii)
Prohibition on damaging human health, nature,
cultural monuments and the environment
By exercising ownership, no harm must be done to human health, nature,
cultural monuments or the environment – beyond limits set by law.7 This
is a significant legal rule established directly in the Constitution of the
Slovak Republic. Although this legal rule does not directly contain any
sanction in its internal structure,8 there is no doubt it is normative. That
means it is directly applicable and that other individual civil sanctions
may be used to enforce this legal rule. Such enforcement might take the
form of denying to an owner the right to exercise what would otherwise
be a lawful act of ownership, or the imposition of a duty to compensate for
inflicted damage.
7
8
See Article 20 Sec. 3 in fine, of Constitution of Slovak Republic.
An ordinary legal rule in Slovak law has the following internal structure: (a) hypothesis – (b) consequence – (c) sanction; if (a) then must (b), if not (b) then must
(c). In our case “c” is missing in the wording of the legal rule.
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(iii)
369
Using property without the owner’s consent
§ 128 (1) CC. In case of either emergency or urgent public interest, where the
purpose cannot be otherwise attained, the owner of property is obliged to allow
use of it to the extent necessary and for the necessary period of time and for
compensation (…)
The cited legal rule imposes a duty on the owner to bear the use of his
property without his consent under certain circumstances. This is allowed
only temporarily and proportionately to the need, if the purpose cannot be
reached by any other means, and then only in two cases: a “state of necessity” (i.e. an emergency situation) or an exigent public interest.
A state of necessity is to be understood as a state of need, which will be
judged in a specific case by the court according to its free deliberation. It
will look upon the significance of the purpose for which the property was
used, as well as upon the reality of whether using of the property was really
required. The right to use somebody else’s property according to the Civil
Code belongs to one who is in a state of need, however the use of property is
not excluded to other persons (e.g. when a person in a state of need cannot
use it on their own, due to an injury).
The second case, i.e. a state of urgent public interest, the property can
be used by anyone. For this temporary use of somebody else’s property, a
substitute belongs to the owner due to this temporary inability to use his
or her own property during this time (which can last a long time if it is
necessary to achieve the aim). If not otherwise agreed, the substitute is
provided in pecuniary reimbursement. The limit on this “adequate substitute” will evidently be the price of the damaged property at the time of
its use. It is possible to deduce, from the construction of Sec. 128 (1) of
CC, that the substitute is provided by the person who benefited from the
use of the property, in the situation when someone else used it to benefit
another person.9
(iv)
Restriction on ownership ad hoc
The ad hoc restriction of ownership is mainly the rare case of statutory
pledge and of a real burden arising ex lege. However, the listed restrictions
are in principle limited to immovable assets (land, flats, building), as well
as various other ownership restrictions on the basis of some of the special
laws (e.g. Electrification Act no. 79 / 1957 Coll. as amended).
9
Knapp, V. et al.: Občanské právo hmotné, Volume I. Praha, 1995, 1997, p. 214.
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(b)
Restriction by authority statements
The most serious case of a forced restriction on an ownership right is expropriation.
§ 128 (2) CC. Property may be expropriated, or ownership may be restricted in
the public interest, where the purpose cannot otherwise be attained, but only on
the basis of law, solely for the said public purpose, and for compensation.
In the sense of this rule, it is possible to completely deprive an owner of
the ownership right, or to temporarily or permanently restrict him in the
exercise of his ownership right. However, it is only possible whilst fulfilling all statutory conditions. Nonetheless, it is only approached when the
aim of expropriation cannot be reached by any other means, e.g. by an
agreement (rule of subsidiarity). The effect of the order of the court or
of an administrative body can occur only with effects ex nunc. Specific
rules state how the substitute for dispossessed property is measured. If a
substitute is provided in money, its amount is determined by an expert
judgement according to the market price of the property in the moment
of dispossession.
(c)
Restriction created by owner’s legal act
An owner can restrict his ownership right voluntarily by his own legal act
(e.g. by an agreement establishing a pledge, a lease agreement, etc.) These
restrictions of ownership right are of a completely different character from
the ones listed above, because in this case it is about a voluntary restriction
of ownership right by one’s own act or realisation. This can occur not only
as a legal act of the owner, but as well by his legal predecessor or anyone
else entitled to it. For example, this is the case when acquiring property
encumbered with pledge, such as an inheritance from a testator who, during
his life, encumbered this property by a legal act inter vivos.
1.3.
Other property rights
Types of rights in rem constituting a separate sub-system of property rights
have (as discussed in 1.3.1.) become relatively stable throughout history,
and at present such sub-system is divided following the Roman model into
two groups of “restricted rights in rem”:
(1) iura in re propria represented by the most comprehensive right in
rem – ownership right and possession (possesio), and
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(2) iure in re aliena represented by pledge, real burden (easement)10, lien,
statutory pre-emption right11 and contractual pre-emption right,12 if
agreed by contractual parties as a right in rem. A contractual pre-emption right may take the form of an obligation or right in rem, whereas
a statutory pre-emption right always takes a form of the right in rem.
Some other authors partially include into this group of restricted property rights also the “lease right”.13
Some of the restricted property rights mentioned above are only applicable
to immovables (burdens on real property, e.g. an easement). De lege lata the
only other property right applicable to movables, apart from ownership, are
the pledge, lien and statutory pre-emption right or contractual pre-emption
right when its form is taken as a right in rem.
1.3.1. The right of pledge
The current statutory regulation of the right of pledge in the Slovak Republic is the result of a fundamental reform of this institution by the amendment of the Civil Code by Act No. 526 / 2002 in effect from 1 January 2004.
It is an integrated act for the whole area of private law.
A special provision of the right of pledge for the area of commercial relations stated in Sec. 299 of the Commercial Code was completely cancelled
by the Act cited above, although special statutory provisions regarding the
relation between the right of pledge and shares in a company14 and the
possibility to establish a pledge of shares, whose convertibility is limited,
have remained specially covered in this legal regulation.15
The basis for the reform of the right of pledge was the need for it to be
created quickly, simply and for the costs to be as low as possible when establishing and creating it; furthermore there was a need to establish a so-called
“non-possessory” pledge, which would enable the pledgor to continue using the encumbered object, or to use it to settle the reserved outstanding
claim; furthermore the need for an existing system of registering the right
of pledge available to everyone [Notarial Central Pledge Register (Notársky
centrálny register záložných práv) managed by the Chamber of Notaries of the
10
11
12
13
14
15
Easements may only be attached to immovables.
E.g. statutory pre-emption right of the co-owner in common co-ownership under
Sec. 140 of the Civil Code.
E.g. pre-emption right established in secondary covenants in the contract for sale.
Knapp, V. Et al.: Občanské právo hmotné, Volume I. Praha, 1995, 1997, p. 199.
Sec. 117a of ComC.
Sec. 156 para (10) of ComC.
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Slovak Republic (Notárska komora Slovenskej republiky)], so as to enable the
advancement of any property of a natural person or legal entity and for the
right of pledge to enable the pledgee to be satisfied by the pledge as soon as
possible. The notion and function of the right of pledge has not changed
with the reform. The reservation of claims and its accessories has remained
a significant property law tool.
The right of pledge serves to secure a claim and its accessories in a way
that when the claim is not properly settled on time, the pledgee is entitled
to settle a claim or to call for the settlement of a claim by means of the
encumbered property – the object of the pledge. Therefore the pledge fulfils a securing and settling function. As a consequence of the “right in rem
character” of the right of pledge, the transfer or passing of an encumbered
property16 to another is done by the rule of the pledge being a reserve in
relation to the acquirer. Therefore, the acquirer is subject to all the rights
and duties of the pledgor, including the duty to bear the enforcement of the
right of pledge.17 This rule not only applies when the contractual parties
agree that the pledgor is allowed to transfer the encumbered property, or
part thereof, without being encumbered by the right of pledge, but also in
the following two cases specified by the Civil Code.
(a) If the pledgor transferred the pledge in the ordinary course of business
whilst acting on the object of business: the reason behind this rule,
or this exception to the general rule, is to protect the acquirer and his
certainty that he is acquiring a property not encumbered by the right
of pledge;
(b) If at the time of transfer of the pledge and whilst taking due care,
the acquirer was in good faith that he was acquiring property not
encumbered by the right of pledge: if it is a case of a right of pledge
registered in the Notarial Central Pledge Register (Notársky centrálny
register záložných práv), then the refutable presumption of the pledge
acquirer not being in good faith is valid. An acquirer has a chance of
refuting the assumption by evidence to the contrary.
In principle, no consent of a pledgee is required for the free disposal of the
pledge by the pledgor unless agreed in the pledge contract otherwise. The
free disposal of the pledge is only possible up until the pledgee informs the
pledgor of the commencement of a right of pledge, specifically of its exercise and of the means of exercising it (e.g. direct sale, sale in auction etc.)
16
17
A pledge can be a property, right, claim (receivable), other asset of value (subject of
intellectual, industrial property, i.e. trade marks, patent etc.), flat and other premises,
as well as “set” of property, rights or other assets of value, enterprise, its part or other
bulk property. [Sec. 151d para (1) of CC].
Sec. 151h para (2) of CC.
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in writing.18 From this moment on the pledgor is not allowed to transfer
encumbered property (pledge) without the pledgee’s consent.
1.3.2. The right of lien
Apart from the right of pledge, lien is another form in the iura in re aliena
category that fills the securing function. A creditor has the right to secure
his outstanding debt by retaining a debtor’s property, which will be held in
his factual power until it is fully paid. If he had no right of lien in relation
to the property, he would have to hand the property over to the debtor.
Only a tangible asset can be the object of the right of lien. On the basis of
the right of lien, the creditor has a priority right to the profit of the retained
property before other creditors, even pledge creditors.19 A special case is the
right of lien on tangibles found in a rented immovable securing it.
1.3.3. The right of pre-emption
The right of pre-emption can also have an easement character, provided
the easement was agreed on between the buyer and the seller as part of a
secondary arrangement to a purchase agreement. At that point, the right
of pre-emption is effective for the legal successor of the buyer.
The contract needs to be in written form and the right of pre-emption
is acquired by registering it in the Land Register (Kataster nehnuteľností).
The contractual right of pre-emption can therefore be established as an
obligation right or as a property right (right in rem). On the contrary, the
statutory pre-emption right belonging to co-owners in relation to common
property, as an object of their common co-ownership (see 140 of CC), is
always established as a property right in rem.
1.3.4. Real burdens (easements, servitudes)
Slovakian law did not recognize the institution of “real burden” until
1950. It was mentioned for the first time in the Civil Code of 1950 (Act
No. 142 / 1950 Coll.) and it consolidated the then-existing institutions of
servitudes and real burdens. In legal language, the phrase “real burden” is
mainly used to denote the material relationship or a group of relationships
that allows the authorised subject (in order to achieve a more perfect and
18
19
Lazar, J. et al. Občianske právo hmotné, Volume 1. Bratislava, 2006, p. 492.
Sec. 151u of Civil Code.
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effective use of the property or to achieve better satisfaction of an individual’s needs) to make use of a certain repetitive or lasting realisation of
the “use value” of immovable property.20
Therefore we speak of legal relations that, on one hand, enable the
subject who is different from the owner to realise the use value of property;
on the other hand, these legal relations restrict the owner of property in the
realisation of his partial ownership right, being ius utendi, at the same time.
Real burdens and their regulation apply strictly to immovables therefore
it is not of importance to deal with them in more details in this report.
However it has been mentioned here for the completion of the list of iura
in re aliena.
1.4.
1.4.1. Protection of ownership
(a)
General means of protection
Legal protection of subjective rights is guaranteed mainly by the Slovak
Constitution. The basic principle of this protection, i.e. a ban on the denial
of justice, the so-called denegatio iustitiae, is expressed in Article 46 of the
Slovak Constitution. Constitutional guarantee of the protection of subjective rights is, at the level of civil relations, linked to Sec. 4 of the Civil
Code under which any person may demand that the competent authority
afford such person protection from anyone who endangers or violates his
right. Unless the Code provides otherwise, such authority shall be a court.
This means that any person whose right is endangered or infringed may
seek protection of his right at the respective court, unless a situation under
Sec. 6 of the Civil Code is involved (self-help).
Another general tool that contributes to the protection of all subjective rights is the so-called interim administrative protection or protection
against an obvious breach of peace under Sec. 5 of Civil Code. This is also
an exception to the general principle that the protection of subjective
rights is afforded first of all by a court of law (see Sec. 4 of the Civil Code).
Where an obvious breach of peace occurs, protection may be sought at
the competent state administrative authority. As an interim remedy, the
administrative authority may prohibit the breach (interference) or order
restoration to the previous condition. The right to seek protection from a
court is not thereby affected.
20
Bradáč, A., Fiala, J., Hába, J., Hallerová, A., Skála, M., Vitulová, N.: Věcná břemena
od A do Z. Linde, Praha, 2002, p. 8.
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Another exception to the principle laid down in Sec. 4 of the Civil
Code is the possibility of self-help protection of subjective rights subject
to the statutory requirements laid down in Sec. 6 of the Civil Code. Selfhelp may be applied only in case of imminent danger of unauthorised and
unlawful interference. This unauthorised and unlawful interference can
only be averted by the entity facing such danger, and this entity may do so
only in an adequate and reasonable manner. Self-help cannot be applied to
restore the property to the original condition existing before the interference. Self-help cannot be applied to defend against the unauthorised and
unlawful interference that already existed for some time, because in such
case there is no imminent danger of unauthorised and unlawful inference.
The requirement of adequacy shall be deemed to have been met only if the
manner of averting imminent danger was proportionate to the nature and
circumstances of the interference.
(b)
Special means of judicial protection – “ownership actions”
In addition to general tools of protection of all subjective rights arising out
of civil relations (self-help under Sec. 6 of the Civil Code, interim administrative protection under Sec. 5 of the Civil Code), the Civil Code also provides two special types of judicial protection of the ownership right. These
two actions in rem concern an ownership that was known also in Roman
law, namely “action on the claim for the ownership of a specific property, by
which an owner enforces the title to his property” (rei vindicatio), and the
so-called “negation action” (actio negatoria), the substantive prerequisites of
which are governed and regulated in Sec. 126 para. (1) of the Civil Code.
From the legislative point of view, the substantive prerequisite of rei
vindicatio is as follows: “The owner may enforce the title to his property and
claim a certain property from any possessor who does not have a right of retention over it.” The substantive prerequisite of actio negatoria is as follows:
“The owner shall be eligible for protection against anyone who unlawfully
interferes with his ownership right”. Similar eligibility for protection (i.e.
similar actions) is under Sec. 126 para (2) of the Civil Code available also
to those persons who may have the property in their possession. This will
most probably apply to the detentor (custodian, pledgee with whom the
property is deposited as a pledge, lessee, borrower, etc.) but also and mainly
to the authorised possessor. Protection extending to the detentor also applies to the owner of the property.
Both above-mentioned actions are actions for performance. Actions
concerning the ownership may also include a declaratory action, being a
procedural action seeking the determination of ownership under Sec. 80
item c) of the Civil Procedure Code. This action may be brought if no
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other action concerning the ownership can be brought. Moreover, if the
party wishes to bring this action, it must prove that there are exigent circumstances that demand this type of action, otherwise the party cannot
be successful in pleading its case before a court of law. Declaratory action
may be brought with a view to protecting possession, in a narrower sense,
or detention, and also with a view to protecting other rights in rem, because
by bringing a declaratory action in accordance with the above-mentioned
provision of the Civil Procedure Code, the party may seek a court ruling
that there exists or does not exist any legal relation (ownership, possession,
detention, pledge, lien, etc.) or right (ownership right, security interest,
right to use, etc.), if there is any exigent circumstance.
(c)
Another means of judicial protection
In addition to the above-mentioned legal tools of judicial protection of
property rights, protection may be sought also in the case of any loss or
damage to the property or the party may seek restitution or recompense
of a legally unjustifiable benefit obtained by the defendant (unjust enrichment) e.g. by using the property without a legal title. The plaintiff may do
so under Part Six of the Civil Code, which governs and regulates liability
for loss or damage, and unjust enrichment.
If seen within the overall context of the Civil Code, Part Six is between
Part Two (Property Rights) and Part Seven (Inheritance), whereas Part
Three, Part Four and Part Five have been repealed. Therefore in general
any person is liable for loss or damage that he caused by breaching a legal
obligation (duty) and any person who, to the detriment of somebody else,
is unduly enriched must return what he has acquired. Sec. 451(2) of the
Civil Code defines what constitutes unjust enrichment. Unjust enrichment
means material benefit acquired by performance of an act for which there
was no legal reason, by performance of an act based on a void legal act, or by
performance based on legal grounds that did not occur, as well as a material
benefit acquired from dishonest resources.
1.4.2. Protection of other property rights
Regarding the protection of other property rights, apart from the ownership
right, the Civil Code does not provide any individual means of their protection. However, it offers eligible persons protection for limited property
rights to an alien property, either using general means for the protection of
civil relations against everyone who endangers or violates his or her rights
(a general court protection, Sec. 4 of Civil Code; interim administrative
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protection, Sec. 5 of Civil Code; and self-help, Sec. 6 of Civil Code); or,
on the other hand, by recognizing analogous rights owners possess towards
a good faith possessor of the property.
A “good faith possession” is protected by law, thus such possession is
often identified with the so-called “protected possession”. However, according to some authors, a detentor is not protected, i.e. someone who possesses
an object, but is not treating it as his own.21 According to the author of this
report, it is only partially possible to agree with this statement, because the
object of possession can be property, as well as a right:
§ 130 (1) CC. The person who, taking into account all circumstances, is in good
faith that certain property or right belongs to him, is considered its lawful possessor. In case of doubt, the person shall be considered to be a lawful possessor.
If we say that one entitled to a restricted property right to alien property is
the possessor of this right (e.g. based on a valid contract with the owner,
such as a right to park a motor vehicle on neighbour’s land), it is beyond any
doubt that one so entitled is the good faith possessor of his own right. He is
convinced that this right was created for and belongs to him, even though
he is only a detentor of the land, which he “possess” for its true owner. If we
clearly distinguish between “detention of the object” and “possession of a
limited property right to the object”, we can conclude that the detentor of
the property is protected equally as the owner, provided that he is entitled
or is a possessor in good faith of the property right to the object.
As an example, we purposefully mentioned the case of an entitlement
arising from a real burden, although this only concerns immovable property,
because there is support for the stated opinion that there is protection for
the “holder” in existing judicature: “(…) A person entitled to the use of a flat,
based on the right concerning a real burden, is the holder of this right in effect
of Sec. 129 (2) of Civil Code, and therefore, as a holder in due course has the
same rights as the owner (Sec. 130 (2 of Civil Code).”22 The user of the flat is,
as one entitled by a real burden, the detentor of the flat and the court had
also awarded him protection, albeit for a different reason – on the basis of
entitlement and good faith – to possess this right, corresponding with a
real burden.
The above-mentioned examples concern immovables, but the principle
is valid by analogy to the case of movables, since they also can be the object
of property rights other than the ownership right (i.e. pledge, lien, in rem
pre-emption right). The right to protection of possession, in the case of
entitlement or legitimacy (which implies good faith), is valid for all property
21
22
Plank, K. et al. Občianske právo s vysvetlivkami. Iura Edition, Bratislava, p. 182.
R 54 / 1993.
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rights, as well as for obligation rights that allow for permanent or repeated
exercise. This suggests a contrario, that the possession of a right is not possible where the law allows for a one-off exercise (e.g. a pre-emption right).23
1.4.3. Another means of protection
Apart from the above-mentioned general and specific instruments of protection of the ownership right (also termed the “material ownership suits”),
Slovak law offers the owner of property, and the possessor in good faith
(since the lawful possessor has the same rights as the owner),24 other instruments of legal protection, mainly in non-contractual obligation law
(liability for damage, unjust enrichment), or in individual, mainly procedural regulations (Civil Procedure Code, Bailiffs’ Code, The Bankruptcy
Act etc.)
(a)
Claim for damages
A claim for damages may be made by an aggrieved party,25 and restitution
for unjust enrichment may be sought by the party who suffered due to the
unjust enrichment of another.26 Holders of such rights must prove in court
their alleged standing to sue in rem arising under substantive law, otherwise
they they cannot prevail in court’. Such standing to sue may result from
the right in rem to the property to which the loss or damage was caused, or
that was used without any legal title.
Simply said, the owner of the property seeking compensation for loss
or damage caused to his property must prove that he is the owner of such
property. If, however, the claim were assigned to a third party other than
the owner of the property, a liability claim in respect of the property may
be made by such third party. However, such third-party standing to sue
will not result from the existence of his right in rem, but from another legal
title, being the claim assignment agreement. However, stricto sensu, this
liability claim to be made by this third party depends on the existence of
the assignor’s right in rem.
23
24
25
26
Fiala, J., Holub, M., Bičovský, J.: Občanský zákonník. Linde, Prague 2006, p. 225.
Sec. 130 para (2) of CC.
Sec. 420 et seq of CC.
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379
Particular procedural remedy – injunction
A procedural rule under the Civil Procedure Code enables the party exercising his constitutional right to judicial protection, and who proves the
existence of imminent threat of loss or damage, to seek a procedural remedy
in the form of injunction. This may be granted by a court of law before or
during trial.
The court may grant the injunction before the commencement of the
proceeding, if the parties must be temporarily required to do or refrain
from doing a particular act, or if there is any concern that the enforcement
of judgement might be at risk. Sec. 76(1) of the Civil Procedure Code
provides for several types of injunctions (such list is not intended to be
exhaustive). The court may inter alia command the party not to dispose
of certain property or rights (not to transfer the ownership right and title
to the property, not to encumber the property, etc.), or it may command
a party to do a particular act, to refrain from doing a particular act, or to
suffer some act (e.g. to refrain from any interference in the ownership right
or any other right in rem, etc.).
(c)
Insolvency
Complying with legal presumptions in the case of insolvency proceedings, a
bankruptcy debtor’s property becomes a “bankruptcy estate”. A bankruptcy
estate is the property subject to insolvency proceedings, consisting mainly
of property belonging to the debtor at the time of commencement of the
insolvency proceedings, property that he acquired during the proceedings,
and property securing the debtor’s obligations.27
An administrator of the bankruptcy estate prepares a “bankruptcy estate
register” (súpis majetku podstát), which is a document entitling the administrator to convert the listed property into pecuniary equivalent. The register
is created by the administrator according to the list of property provided by
the bankruptcy debtor, information from the bankruptcy debtor and other
persons, as well as his own findings and investigation.28 The administrator
prepares a list of the general estate or separate estate property. The inclusion of property on this list is disputable, mainly when the property is in
the hands of a third party or the third party claims a right to it that would
exclude its inclusion in the register.
In the case of a disputable entry, the administrator notes the reasons
for a disputable entry and lists the person on behalf of whom the disput27
28
Sec. 67 of The Bankruptcy Act.
Sec. 76 para (1) of The Bankruptcy Act.
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able entry testifies. The administrator then notifies the person on behalf of
whom he made the entry, that he or she may state the reasons and present
evidence that would exclude the property from the register, within 30 days
of the delivery of the notice. If, on the basis of the stated reasons and
presented evidence, the administrator finds that the notified person has a
right to have the property excluded from the register (mainly in the case
of ownership right), the administrator will speedily eliminate the property
entered into the register; otherwise, he will speedily notify the person again
of a legal action against him or her at the court of law.
The real owner of property in the hands of some one else who is subject
to insolvency proceedings may file an “action for exclusion” against the
administrator of the bankruptcy estate at the appropriate court, by which
he seeks determination that the property is in his ownership and, therefore,
should be excluded from the bankruptcy estate.29 The basic assumption for
his success, in this “exclusion court proceedings”, is the existence of his
right of ownership to the property entered in the estate register and proof
of such in the law suit.
An analogous situation may occur in the case of insolvency of a thirdparty holder and an execution process may be started against that third-party
holder. The owner of such property subject to execution (which has started
due only to the fact that the property was with the holder), has the right to
demand the exclusion of the property from execution due to an existence
of a right to the property, which does not allow execution (such a right is,
again, mainly an ownership right).30
1.5.
Transferability of movable property
1.5.1. General
The Civil Code in connection with limiting transferability of certain property in Sec. 125(2) reads as follows:
§ 125 (2) CC. A separate act shall provide which property may only be the object
of state ownership or the object of ownership of designated legal entities.
This operates as lex specialis to the Constitution of the Slovak Republic31
and in general authorises Parliament to adopt a piece of legislation specifying which other property (in addition to natural resources, underground
29
30
31
Sec. 78 of Bankruptcy Act.
Sec. 55 para (1) of The Code of Execution Procedure.
See Article 20 para (2) of the Constitution of the Slovak Republic.
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water, natural healing springs, natural watercourses and caves32) is necessary
to satisfy needs of the society, facilitate national economic development,
promote public interest and, therefore, may be owned only by the state,
municipalities or selected legal entities. Under this Article of the Slovak
Constitution, the law may also specify that certain property may only be
owned by citizens or legal entities residing or seated in the Slovak Republic.
No special pieces of legislation, to which the above-mentioned legal rules
refer, have been adopted so far. Therefore at present (under legal rules applicable in the Slovak Republic) there is no statutory limitation on transferability of any movables.
1.5.2. Restrictions on transferability based on agreements
In the event of any agreement between the owner and the other party that
would contractually limit transferability of the subject-matter of the agreement (which is possible in accordance with the principle of disposition
autonomy and freedom of contract), this contractual obligation operates
only inter partes. If the ownership of such property were transferred to a
third party – despite the existing contractual obligation “not to transfer”,
such default on this obligation would not invalidate the transfer in relation to the third party. To the contrary, the transfer would be valid and the
aggrieved party would be entitled at most to the compensation of loss or
damage under Sec. 420 et seq. of the Civil Code; or, the other party could
possibly seek any other sanctions or penalties under relevant provisions
contained in the original agreement with the owner of the property that
was not supposed to be transferred.
1.5.3. Separate transferability of accessories
In addition to the principal property,33 which constitutes a separate subject
of civil relations, the Civil Code defines “[component] part” and “accessory” of the principal property. Any object that pertains to the principal
property by its nature and cannot be separated from it without depreciating
the value of the principal property is an integral (component) part of such
property.34 A component part of the property may exist separately, unless
32
33
34
See Article 4 of the Constitution of the Slovak Republic.
The Civil Code does not provide legal definition of the property. In its Sec. 119 para
(1) it only divides property into movables and immovables, and subsequently in Subp.
(2) it specifies immovables, being lands and buildings erected on fixed foundation.
Sec. 120 para (1) of the Civil Code.
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it is connected with the principal property, or it may only be a part, which
has no purpose or function without the principal property, therefore as such
it has no utility value.
If the component part of the property can exist separately, it may also be
a separate subject of civil legal relations, until it is joined to the principal
property. After such connection, the legal regime of the component part
depends on the legal regime of the principal property, and any legal acts
relating to the principal property and legal effect thereon shall, without
any further specification, also apply to the component part.35 A component
part is subject to the same legal regime as the principal property, even if as a
consequence of being joined with the principal property an object that used
to exist separately now becomes a part of the principal property.36 Component parts of the principal property shall pass to the new transferee of the
principal property even if they are not expressly mentioned in the contract
that governs and regulates the transfer of the principal property.37
“Appurtenances” to property means accessories that belong to the
owner of the principal property and are designated by him to be used permanently together with it. In such case, both the principal property and its
accessories constitute a separate subject of civil relations.
Some civil law theoreticians hold the opinion that, for this reason in
general, legal acts relating only to the accessories do not relate to the principal property, but on the other hand, legal acts relating to the principal
property relate to its accessories.38 Others urge that due to the separate
existence and individual nature of accessories, without any further expression of will, legal acts related to the principal property shall not apply to
accessories. If the legal act relating to the principal property is to take
effect also in relation to its accessories, accessories must also become the
subject of this legal act. Otherwise it may not be assumed that, as a result
of the legal act (e.g. under a contract for sale), the ownership of accessories
is also transferred. Omission of accessories in the contract may absolutely
invalidate the contract as a whole, if the accessories were supposed to be
transferred but the transfer did not take place because of uncertainty surrounding this part of the legal action.39
As laid down in the applicable judicature, the accessories may be transferred to the new transferee concurrently with the principal property or
35
36
37
38
39
Plank, K. et al.: Občianke právo s vysvetlivkami, Volume 1. Bratislava 1996, 1997,
p. 154.
See R 4 / 1992.
See R 7 / 1987.
Lazar, J.: Základy občianskeho práva, Volume 1, Second Edition. Bratislava 2004,
p. 170.
Plank, K. et al: Občianske právo s vysvetlivkami. Bratislava, 1996, 1997.
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independently of this transfer; however, the accessories do not always automatically pass to the transferee of the principal property.40
2.
Possession
2.1.
Notion of possession
The term “possession” has two meanings. On one hand, it is a partial right
of the owner due to the nature of the ownership right – ius possidendi: the
holder of this right is the owner himself. On the other hand, possession may
be viewed as a separate relationship distinct from ownership, in which case
the property is possessed by a person other than the owner. In this sense
the institution of “possession”, as a separate civil relation, is governed and
regulated separately in Sec. 129 through 131 of the Civil Code. In the text
below, we only deal with “possession” meaning the possessor is always an
entity other than the owner.
“Possession” is not defined in the Slovak legal rules. However, features
and characteristics of the notion of possession may be derived directly from
Sec. 129 of the Civil Code: “The possessor of property is the person who treats
the property as his own or exercises such right for himself.” Such definition of
possession is based on the Roman understanding of the institution of “possession” – possesio; it presupposes concurrent existence of the actual dominion over the property (corpus possesionis) and intent to have the property as
one’s own (animus rem sibi habendi). Only if these two prerequisites are met
(corpore and animo) cumulatively, one may use the term “possession”.
Under legal rules applicable in the Slovak Republic a distinction must
be drawn between “possession” and “detention”. One feature shared by
both possession and detention is corpus possesionis. The basic difference,
however, is in the presence of animus possesionis. Whereas in the case of
possession, the existence of animus rem sibi habendi is a must, in the case
of detention animus is absent. Unlike the possessor, the detentor does not
treat and dispose of the property as his own; rather he treats and disposes
of the property as somebody else’s property. Detentor will thus be a lessee,
borrower, custodian, etc.
Both cases, possession and detention, mean that the possessor and the
detentor are holding the property in their actual power (i.e. having the apparent control thereof – corpus possesionis). Depending on the way in which
the actual power was acquired, by the objective right in an approbated or
reprobated way, it may thus be a lawful or unlawful detention or possession. In the case of “possession” the elements of the second constituent
40
See R 7 / 1987.
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part – animus – may be accomplished either in accordance or contrary to
law. Accordingly, the possessor of the property is in this sense also a thief
who purloined the property from the owner, or the buyer who acquired the
property from the original owner under an invalid agreement, because both
these entities have the property in their actual power and have the intent
to hold the property as their own, i.e. each of them treats and disposes of
the property as if it were his own.
“Possessor” is thus only an entity other than the owner having the apparent control of the property,41 with which he deals as if it were his own
property.42 The entity that holds the property in his actual power who, however, does not treat and dispose of the same as if it were his own property,
will always be a “detentor” (employee, lessee, custodian, family member,
household member, etc.).
The subjects of the possession may be objects (movables and immovables), but also rights that admit lasting or recurring performance.43 The
holder of the right is thus the person who exercises the right for himself as if
he had such right, even though he does not have such right. The right that
admits only one-off performance cannot be the subject of the possession
(e.g. pre-emption rights, rights arising under a statement of work, etc.).
2.2.
Functions and forms of possession
In Slovak civil law, “possession” is defined and regulated very briefly (only
in Sec. 129 through 131 of the Civil Code), and to a great extent rather
generally. However, the difference between “possession” and “detention”
directly or indirectly flows from these provisions. In relation to the functions of possession, there is also another significant consequence of these
provisions, that being an important distinction between good-faith and
bad-faith possession.
With regard to the criterion of good faith and bad faith, there is thus
a lawful possessor who treats and disposes of the property as his own and
therefore (having regard to all circumstances) believes in good faith that
the property belongs to him;44 and an unlawful possessor, who is not pro41
42
43
The possessor may have actual control over the property directly or indirectly
(through a third party). The Civil Code does not draw a distinction between the
above-mentioned situations.
Similarly, the Civil Code does not draw a distinction between the situations when
the entity not only wishes and intends to dispose of the property as his own, but it
treats and disposes of the same as his own, or in fact has animus, but his right to use
is exercised by a third party (e.g. lessee – detentor), etc.
Sec. 129 para (2) of the CC.
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tected because he treats and disposes of the property as his own, but not
in good faith that the property belongs to him;45 and a detentor, who treats
and disposes of the property, but in no case as his own.46
As far as the legal status of lawful possessor is concerned, what is of
relevance is the statutory principle that unless otherwise provided by law,
the lawful possessor has the same rights as the owner.47 Only a good-faith
possessor thus has mainly all the rights and powers constituting the ownership right (uti, frui, possidere, disponere). As far as protection is concerned,
he may claim and refer to all general terms, conditions and means of protection, as well as special terms, conditions and means that he may successfully invoke against anyone, except the owner (mainly actions concerning
ownership (see 1.4 above).
Only the lawful possessor may acquire the ownership of the property by
prescription. Good-faith nature of the possession is one of the substantive
prerequisites of prescription.48 If the property is reverted and surrendered to
the owner, or in general to a person who proved to have a better title to the
property (in the case of good-faith possession, it may only be the ownership
right and title to the property), the following may happen depending on
whether the possession is lawful or unlawful.
It is by nature of the possession that the possessor during his lawful possession kept using the property as his own, truly believing that the property
belongs to him and, therefore, could have incurred costs in connection with
that property (e.g. customary maintenance costs, costs of appreciation, etc.).
The Civil Code deals with this relationship between the good-faith possessor
44
44
45
46
47
48
It is necessary to outline here the rule contained in Sec. 130 para (1) of CC in fine:
‘In doubts the possession shall be considered as lawful’. E.g. mere fact that an owner has
instituted legal proceedings against the possessor (e.g. rei vindicatio) does not necessarily indicate that the possession shall be considered as unlawful. The ‘lawfulness’ of
possession is a subjective category as it is closely connected to the possessor’s belief
that the object of his possession really belongs to him. His awareness of initiated
legal proceedings of an owner does not automatically mean that the possessor lost
this belief. However it definitely weakens his position in that way that it puts a doubt
on his belief. The possessor shall be anyway considered as lawful until it is beyond
any doubt proven that he know that the object of his possession does not belong
to him. That can be a moment when he has been displayed a document of title e.g.
purchase contract during the court hearing.
Unlawful possessor (e.g. a thief) has – despite good faith – the right to a certain form
of protection, being the right to protection of peaceful condition under Sec. 5 of the
Civil Code.
Fiala, J., Holub, M., Bičovský, J.: Občanský zákonník. Linde, Prague 2006, p. 180.
Sec. 130 (2) of the Civil Code.
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and the owner to whom the property reverted, in such a way that the goodfaith possessor shall return the property itself, but retains fruits, yields and
benefits derived there from, because he acquired the ownership of such fruits,
yields and benefits.49 On the other hand, the lawful possessor has against the
owner a claim for reimbursement of the costs, which the possessor reasonably
incurred during the time of lawful possession to an extent corresponding to
the appreciation of the property on the day of its return. However the customary costs of maintenance and operation shall not be refunded.50
An unlawful possessor does not have any rights enjoyed by the owner.
He may not acquire the ownership title to the property by means of acquisitive prescription (usucapio). Out of the above-mentioned available forms of
protection, he could only claim the right to protection of the latest peaceful
status, under Sec. 5 of the Civil Code. The unlawful possessor is obliged
to return and surrender the property to the owner together with its fruits,
yields and benefits, and to compensate him for any damage caused by the
unlawful possession. He may deduct the costs that were necessarily incurred
in connection with the maintenance and operation of the property. On the
other hand, the unlawful possessor may also sever from the property any
part of it that he appreciated at his own expense, where this can be done
without impairing the substance of the property.51
2.3.
2.3.1. General remedies for protection of possession
Sec. 4 of the Civil Code provides protection in general to any person,
including a lawful possessor, against anyone who endangers or violates his
right or state of possession, and rights arising thereof. A possessor may
demand that the competent authority, being most often court of law, afford him protection from such a danger or violation. This means that any
possessor whose right is endangered or infringed may seek protection of his
right at the respective court, unless a situation under Sec. 6 of the Civil
Code is involved (self-help).
Another general tool that contributes to the protection of all subjective rights, including protection of possession, is the so-called “interim administrative protection or protection against an obvious breach of peace”.
Where an obvious breach of peace occurs, protection may be sought at
the competent state administrative authority. In consequence, when an
49
50
51
Sec. 131 para (1), (2) of the CC.
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obvious breach of peace of possession occurs, as an interim remedy, the
administrative authority may prohibit the interference or order restoration
to the previous condition. The right to seek protection from a court is not
thereby in any way affected.
2.3.2. Special judicial remedies for protection of possession
The Civil Code provides, per analogiam (under Sec. 126 para. (2) of the
Civil Code) for the lawful possessor, in a wider sense (encompassing a lawful detentor as well), a judicial protection within property law by means
of two actions: Quasi rei vindicatio and the so-called “negatorian action”
quasi actio negatoria, substantive prerequisites of which are governed and
regulated in Sec. 126 para (1) of the Civil Code.
Applying per analogiam rules for protection of ownership rights to protection of lawful possession, the substantive prerequisite of quasi rei vindicatio is that only a lawful possessor (also detentor) may claim certain property
from another (“weaker”) possessor who does not have a right of retention
over it (unlawful possessor). The analogous substantive prerequisite of quasi
actio negatoria is that only a lawful possessor (also detentor) shall be eligible
for protection against one who unlawfully interferes with his factual possession. These analogous rules for judicial protection of possession will be
most often applied to cases of a lawful detentor’s protection (custodian,
pledgee with whom the property is deposited as a pledge, lessee, borrower,
etc.) Both actions (quasi rei vindicatio and quasi actio negatoria) are, equally
as ownership actions, the actions for performances.
Declaratory action according to Sec. 80 (c) of Civil Procedure Code
may also be brought with a view to protecting possession or detention,
because by bringing a declaratory action in accordance with this provision
of the Civil Procedure Code, the party may seek a court ruling that there
exists or does not exist any legal relation (also lawful possession, detention,
etc.) or right (e.g. right of use of the detentor in case of lease contract, etc.),
if there are exigent circumstances. The possessor who wishes to bring this
type of “action for determination”, however, must prove that there are exigent circumstances that demand this type of action, otherwise he cannot
be successful in pleading his case before a court of law.
2.3.3. Self-help
A lawful possessor has the possibility of self-help protection in defence of
his peaceful possession of property according to the statutory requirements
laid down in Sec. 6 of the Civil Code. Self-help may be applied only in
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case of imminent danger of unauthorised and unlawful interference to this
possession.
This unauthorised and unlawful interference can only be averted by the
entity facing such danger, being in this case the possessor, and he may do
so only in an adequate and reasonable manner. Self-help cannot be applied
to restore the subject of possession to the original condition existing before the interference and to defend against the unauthorised and unlawful
interference to the possession that existed for some time, because in such
case there is no imminent danger of unauthorised and unlawful inference.
The requirement of adequacy shall be deemed to have been met only if the
manner of averting imminent danger was proportionate to the nature and
circumstances of the interference. This ruling for self-help is common for a
whole scale of subjective rights within civil law relations.
3.
3.1.
Notion of “property”
The object of civil law relations are “objects” or “things”52 in the sense of
rem (vec) and, if its nature so admits, also rights or other property values.53
The Civil Code does not define the term “rem”. Its current interpretation
is based on its historical interpretation. The Civil Code adopted in 1950,
which was in effect in the former Czechoslovak Republic until 31 March
1964 (on 1 April 1964 the Civil Code No. 40 / 1964, which is still valid
and effective, took effect), in Sec. 23 defined rem as “controllable tangible
objects and natural powers that satisfy human needs”.
Criminal-law judicature also inclines to such definition of the term
“rem”.54 Usefulness and a controllability of the objects are cumulative prerequisites that must be complied with concurrently. Therefore, the property
cannot be e.g. electricity produced as a result of lightning. Compliance
with both prerequisites, usefulness and controllability, must be objectively
viewed in each particular case, i.e. it must be determined whether the property can be controlled, based on the current state of human knowledge and
possibilities, and whether it serves to satisfy human needs.
The current Civil Code does not specify property in the sense of “rem”
in detail [except for Sec. 119 para (2) under which property is movable
52
53
54
The term “property” is hereafter used rather than “thing”, where practicable, since
“thing” is rather an unusual legal academic term in English – despite the fact “thing”
may be a more direct translation of “vec”.
See R 25 / 1957.
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or immovable (real estate)]. Immovables are plots of land and buildings
(constructions) connected to the land by a solid foundation. Such specification obviously means that all controllable tangibles (or controllable natural
forces) that serve to satisfy human needs, and which at the same time are
not plots of land55 or buildings (constructions) connected to the land by
solid foundation, shall be viewed as “movables”. One can only by interpretation arrive at a conclusion that any property not meeting the criterion of
an immovable shall be deemed to be a movable. Within the meaning of this
definition, movables may also be animals, liquids, gas, electricity, money
(of course, provided that the above-mentioned prerequisites are complied
with cumulatively).
3.2.
Classification of the objects of property rights
In this context, the classification of objects of property rights according
to several criteria is of significant relevance. However, it must be stressed
that this classification of property is, in Slovak law, only addressed by legal
theory: the Civil Code only makes a distinction between “movables” and
“immovables” (Sec. 119 of CC), and among “object”, a “constituent part
of the object”, and “accessory” (Sec. 120, 121 of CC).
Classification of property into movables and immovables is of principal
importance with regard to the acquisition of the ownership right and title
to such property, especially in the case of transferring the ownership right
to the property under an agreement or contract (for more information see
Part II). As far as the individual nature of property is concerned, the civil
legal theory divides objects of property rights into exchangeable and nonexchangeable. Exchangeable objects may be replaced by the same number of
objects of the same kind. The most important exchangeable property (movable property) is money. Non-exchangeable property cannot be replaced.
Classification of objects of property rights into objects defined generically (a whole class of similar objects) and objects defined specifically (individually) overlaps the classification of exchangeable and non-exchangeable
property, and is of relevance mainly in the event of discharge of obligations
or in the event of determining contractual types of loans and borrowings.
Property defined generically is the property designated by its class features,
number, measure or weight. Other objects are designated by unique features, which identify them and unequivocally distinguish them from other
property.
55
Sec. 3 of Act No. 162 / 1995 (Land Registration Act) – legal definition of a plot of
land.
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Classification of objects based on the criterion of whether they are divisible or indivisible is also of legal relevance. Division of divisible objects
does not result in any change in the purpose for which the divisible objects
is to be used. However, division of an indivisible object usually results in it
ceasing to exist and causes its absolute uselessness. Classification based on
this criterion is of relevance mainly in connection with cancellation and
distribution of common co-ownership and joint co-ownership, because one
possible way to distribute such common property after its cancellation is its
real division. The same applies to the case of succession (inheritance).56
Classification based on other criteria is of no significant relevance in the
context of this report therefore it will not be dealt with.
The object of civil law relations may also be a right, provided that its
nature so allows. For this reason the most frequent subject of civil relations
is a claim (e.g. account receivable). It may be assigned, pledged, secured,
set-off, etc. In addition, and again if its nature so allows, the object of civil
law relations may also be another property value, such as a logo, know-how,
information, databases, algorithms, as well as immaterial objects classified
as intellectual property (inventions, design, new varieties, etc.). These objects are governed and regulated under separate legal rules that apply to
intellectual property; special rules also apply to the transfer of these assets
(if any). For the sake of completeness, the objects of civil law relations are
also so-called “individual’s personality traits and his / her displays of personal
nature” (e.g. individual’s life, health, privacy, civic honour, dignity, image,
audio or video record, letters and other papers of personal nature).57 Finally,
the rules on the “transfer of movables” shall apply only to tangible movable
property, as described above.
56
57
Lazar, J.: Základy občianskeho práva hmotného, Volume 1, Second Edition. Bratislava 2004, p. 168-169.
See “Protection of Personality” in Sec 11-16 of Civil Code.
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Part II:
4.
Basic characteristics of the “transfer system”
There are various ways and various legal facts and circumstances that may
give rise to the acquisition of an ownership right and title to movables by
entities involved in civil law relations. That is why the way of acquisition
of the ownership right will be classified by several criteria. In the context of
this report, the most important seems to be the classification that includes
original acquisition, derivative acquisition, and acquisition by transfer.
Criteria for these classifications are similar, but criteria for the third,
acquisition by transfer, should be grouped separately. Original acquisition
means the owner does not derive his ownership right from a transferor. This
classification mainly includes acquisitive prescription, commixture, specification. Derivative acquisition is when the transferee derives his ownership
right from the transferor and includes the acquisition of the ownership right
under a contract, or by inheritance. Acquisition by transfer is acquisition
of the ownership right based on the declaration of will and intent of the
transferor under a contract, but the transmission is based on other legal
facts and circumstances (decision of a governmental agency, by operation
of law and also by inheritance).
These differences are of relevance, because e.g. creation of any new
property accounts for the original acquisition of the ownership right, but
it cannot be included in ways to acquire the ownership right by transfer or
transmission. Likewise, inheritance accounts for the derivative acquisition,
but it is at the same time the transmission of the ownership right.
A general principle that also applies to the transfer of movables and
immovables is the so-called two-stage procedure of transferring the ownership right (titulus and modus). At the first stage, the agreement is made
(titulus), i.e. the obligation between the transferor and transferee arises,
that being the duty and obligation to transfer the ownership right to the
transferee. However, by entering into a valid agreement, the transfer of
the ownership right is not finalised. It is finalised at the end of the second
stage (modus), which is, in the case of movables, the traditio (delivery,
handing-over), and in the case of immovables, registration of the ownership right and title in the appropriate land register. The basic “traditio
principle” applicable to movables is governed and regulated by the Civil
Code as follows:
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§ 133 (1) CC. When movable property is transferred on the basis of contract,
ownership (title) to such property is acquired by the handing-over of the property, unless statutory provisions regulate otherwise or unless the parties have
agreed differently.
As a result of this statute, there applies the “causal concept” principle, requiring a valid contract, on one hand, and the “traditio system” of transfer
of movables, requiring a handing-over, on the other hand. This, however,
does not apply without reservation, there are several exceptions.
4.1.
“Generic goods” and identification
4.1.1. Generic goods
It needs to be again stressed at this point that the Civil Code only makes a
distinction between movables and immovables (Sec. 119 of CC), and between the terms “object”, “constituent part of the object”, and “accessory”
(Sec. 120, 121 of CC) (see 3.1 and 3.2, above); hence any additional classification of property is more an outcome of legal theory than applicable legal
rules. The term “generic goods” is in some ways the opposite of “objects
that are determined individually”. The term “generic goods” is recognised
mainly in contract law within the Civil Code or even more precisely within
the Commercial Code.
The Civil Code does not provide any legal definition of “generic goods”,
even though a similar notion with the same legal meaning – “goods specified according to their kind” – is explicitly contained therein, albeit rarely
(Sec. 609 – as a subject of a re-purchase right, Sec. 657 – as subject of loan
contract and finally Sec. 833, as a subject of co-ownership in case of contract of association). One could say that in all these statutes, the term “generic goods” is applied, but not closely defined. An exception is made in the
case of a loan contract, provided that “the creditor lends to the debtor goods
specified according their kind, in particular money.” However this “example” is
the only closely defining descriptive attached to the term “generic goods” in
civil-law regulation. An analogous situation with respect to “any definition”
of generic goods can be found in the field of commercial-law regulation. One
could conclude that when making a distinction between individually specified property and generic property, common sense is to be of use.
Classification of property into generically defined property (a whole class
of similar objects) and specifically defined property (individually), according
to some authors, overlaps the classification of property as either exchangeable or non-exchangeable, and is of relevance mainly in the event of discharge of obligations or determining contractual types of loans and borrow-
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393
ings. Property defined generically is designated by class features, number,
measure or weight. Other objects are designated by unique features that
identify them and unequivocally distinguish them from other objects.58
4.1.2. Individualisation of generic property and identification
The significance of the above classification of property (see 4.1.1), along
with the relevance of the moment and manner of individualising the generic goods, is mainly in relation to transfer of ownership title to such goods
and to passing of a risk. Especially when the consensual principle is chosen by
contractual parties, in the case of a contract of sale in accordance with the
Commercial Code, and when the subject of transfer is generic goods, the
ownership title cannot pass from transferor to transferee before the individualisation of these goods at the time of transfer of the ownership title.
This rule comes directly from Sec. 444 of ComC in accordance with
which the parties can agree in writing that the buyer will acquire ownership
title to the goods prior to the time of their handing-over, provided that the
contract concerns goods identified individually or identified by type and
which, at the time of transfer of the ownership title, are adequately marked
so as to be distinguishable from other goods in a manner agreed on between
the parties or communicated to the buyer without undue delay. Thus, as for
the nature of the actual “act of identification”, it can be undertaken either
as a unilateral act of the transferor (however there is an additional requirement of subsequent notification to the transferee without undue delay), or
it could be undertaken by agreement of both parties.
With regard to the moment of passing of risk in relation to individualisation of generic goods, the analogous rule shall apply as in the case of
passing the ownership title and, thus, “risk” cannot pass from transferor to
transferee before the individualisation of the goods. The risk of damage to
goods then cannot pass to a buyer who has not received the goods, whilst
the goods are not clearly marked and differentiated for the purpose of the
contract, which may occur mainly by marking the goods or the shipping
documents or specifying them in the report sent to the buyer, or marking
otherwise.59
The requirement of individualisation then comes directly from the statute and the Commercial Code provides several ways of individualisation.
Apart from these ways of individualisation regulated by Commercial Code
Sec. 458, the contract parties are not restricted in choosing any other way
in their agreement. The goods must be also adequately set aside and identi58
59
Lazar, J.: Občianske právo hmotné, Volume 1. Bratislava, 2006, p. 181.
Sec. 458 of ComC.
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fied from other goods of the same type at the time of the transfer of the risk
of damage, if the contract parties agreed that this risk shall pass prior to
the time of their handing-over.60 The general ruling of individualisation in
case of so-called generic goods is very abstract and thus the party autonomy
principle mainly shall play an important role when it comes to the form of
identification to take place.
5.
Elements of transfer required by law
5.1.
Right to dispose
As far as the transfer of the ownership right is concerned, in general the Roman law principle nemo plus iuris ad alium transfere potest quam ipse habet (no
one can give what he does not have or pass better title than he has) applies.
Simply speaking it means that the transferee can acquire an ownership right
only to the extent it was possessed by the original owner. However, there
are two exceptions laid down in the Civil Code to this principle.
The first exemption is the bona fide acquisition of the property from an illegitimate heir to whom the inheritance was confirmed.61 The second exemption applies when the pledgee exercises his pledge in such a way that he, as
non-owner, sells the pledge in the manner specified in the pledge agreement,
where by operation of law he acts on behalf of the pledgor – owner.62
At the level of private law, there is one more quite broadly outlined
exception in the case of a business relationship established under a contract for sale that was entered into in accordance with Sec. 409 et seq. of
the Commercial Code. In the case of this legal relationship, if the seller is
not the owner of the goods being sold under the contract, the buyer shall
nonetheless acquire the ownership right unless, at the time when the buyer
was to acquire the ownership right, the buyer knew that the seller was not
the owner and thus not authorised to sell them.63 The bona-fide buyer thus
becomes the owner despite the fact that at the time of the purchase the
seller was not the owner of the goods.
This exception to the principle nemo plus iuris shall not apply only in
the case of an absence of bona fides on the part of the buyer at the time he
was to acquire the ownership right.64 However, it needs to be stressed that
60
61
62
63
64
Sec. 459 of ComC.
See Sec. 151m para (1) and (6) of the Civil Code.
Sec. 446 of the Commercial Code.
Ovečková, O. et al.: Obchodný zákonník – Komentár (Commentary). Bratislava
2005, p. 266.
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this applies to the contract for sale in a business relationship that was established in accordance with the Commercial Code. In the case of any transfer
of the ownership right under a contract for sale entered into in accordance
with the Civil Code, this exception does not apply and the acquisition of
the ownership right from the non-owner is not possible.
5.2.
Delivery of possession and its forms and equivalents
Traditio (delivery) may take several forms; however, the Civil Code does not
give even an exemplified summary of how property can be handed-over. In
practice, the principle “from hand to hand” applies (e.g. the seller hands
the property to the buyer directly in the shop), as does handing-over accessories that enable actual control (e.g. car keys65 through a third party
obliged to deliver the consignment), and handing-over in the so-called
“short hand” manner – traditio brevi manu (e.g. the car borrower decides to
buy the car after he has borrowed it and has actual control of it – detention,
the same as in the case of a leased property).
The transfer of the ownership right may be finalised in a form other
than the handing-over of the property, if so provided by operation of law
or if the parties mutually agree. The ownership right may be acquired at
the moment of entering into the agreement (contract) (consensual system),
i.e. before the hand-over of the property or some time after the hand-over.
The parties to the contract may agree upon a reservation of acquisition of
the ownership of the property (in writing in the contract) until the day of
full payment of the purchase price (Sec. 601 of the Civil Code).66 In such
a case, the agreement shall be deemed to have been made validly and the
property shall be deemed to have been validly handed-over, but the transfer
of the ownership right itself shall take place upon payment of the purchase
price in full.
Another example of when the hand-over (traditio) does not constitute,
without something further, the effective transfer of the ownership right
and when, conversely, traditio actually takes place before entering into the
agreement (titulus), is self-service shopping, namely when the customer
buys goods in a self-service shop (e.g. using supermarket trolleys). In such
a case the goods, by placement in the trolley, are taken-over before the
legal title to such goods is acquired, such title being the act of entering
into the agreement that occurs upon payment of the full purchase price at
the cashier’s desk. This is the moment when the transfer of the ownership
65
66
See R 17 / 1986.
Lazar, J. et al.: Základy občianskeho práva homtného, Volume 1, Bratislava 2004,
p. 235-236.
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right is finalised and when the ownership right and title to the goods are
actually transferred to the transferee – buyer.67
We would also like to mention the transfer of the ownership right to
the goods in the case of business relations governed and regulated by the
Commercial Code as a special private legal rule. The traditional traditio
system mainly applies here, as in the case of the Civil Code (lex generalis in
the sphere of private law). The buyer shall acquire the ownership right to
the goods as soon as the goods are handed-over to him.68 Having regard to
the fact that the actual delivery of the goods does not necessarily mean the
hand-over that the law prescribes for the effective transfer of the ownership right, the following may happen: the seller directly hands the property
over to the buyer or to his representative at the same place and at the same
time, i.e. delivery shall take place inter praesentes. Supply of the goods69 and
actual handing-over thereof is a single act. Upon the realization of this act,
the transfer of the ownership right to the buyer shall take effect.
The situation is slightly different if the goods are handed-over between
absent parties to the contract of sale, e.g. if the goods are handed-over to
the first shipper who is supposed to deliver the goods to the buyer, if the
contract for sale specifies that the goods are to be sent by the seller. At this
moment the seller only fulfils his duty and obligation to deliver the goods,
however, the ownership is not transferred yet. The ownership will be transferred upon actual hand-over of the goods by the shipper to the buyer. In
the case of delivery of the goods between “absent parties”, there are therefore two acts: supply of the goods in the form of their hand-over to the first
shipper, and the actual hand-over of the goods by the shipper to the buyer.
In this context the question arises whether the transfer of the ownership right takes effect if the buyer, as the consignee, refuses to take delivery
of the goods from the shipper (freight, courier). We tend to believe that
the hand-over of the goods by the shipper presupposes receipt thereof by
the consignee. Without such take-over by the buyer the goods cannot be
deemed to have been handed-over. Only upon the take-over of the goods is
the act of delivering the goods and, therefore, the transfer of the ownership
right to such goods finalised.70
There is an exception to this principle, being the possibility to acquire
the ownership right and title to the goods even before the delivery thereof.
The buyer may acquire title to the goods to be shipped to the buyer and
therefore before the hand-over when he acquires entitlement to dispose
67
68
69
70
Sec. 443 para (1) of the Commercial Code.
Sec. 412 para (2), (3) of the Commercial Code.
2005, p. 267.
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of the consignment.71 The Commercial Code, however, does not contain
any examples of such an “entitlement”. In accordance with commercial law
theory, this occurs mainly when the buyer acquires documentation that authorizes the buyer to control the goods.72 Such right to dispose of the goods
(consignment) may result from a bill of lading, river bill of lading, etc.73
It is relevant to mention also the eventual existence of a consignee’s
“statutory guarantee” for the settlement of all payable receivables arising
from the contract for carriage of the goods concluded between the seller, as
the consignor, and the freight forwarder. However, the consignee becomes
the guarantor only upon acceptance of the consignment and, concurrently,
knowledge of these unsettled due receivables.74 It means basically that if the
consignor has not paid the freight costs, assuming he is obliged to do so, the
freight forwarder is allowed to claim settlement of his payable receivables
from the consignee. The carrier’s position is even strengthen by having a
particular “statutory right of lien” to the consignment’75 until the moment
of the full payment of all due receivables arising from the carriage of the
goods from the seller to the buyer.
The parties may in writing also agree that the buyer shall take title
to the goods prior to the time referred to in Sec. 443 para. (1) and (2) of
ComC, and at the time of transfer of title (ownership rights), provided that
the contract concerns individually determined goods or goods determined
according to kind and that such goods shall be sufficiently marked to be
differentiated from other goods in the manner agreed upon by the parties
or in the manner notified – without undue delay – to the buyer.76
Neither in the civil law nor in the commercial law does the traditio
(delivery) system apply without reservation in the case of rights and titles,
rather there are some exceptions that modify this traditio system by consent.
In this context, an important role is played by the party autonomy principle,
which is expressed mainly by the use of ius dispositivum in the regulation
of transfers of movables. The parties may always agree upon a different
moment when the transfer of the ownership right and title takes place, as
allowed by the Civil Code or by the Commercial Code promoting mainly
the traditio concept principle.
71
72
73
74
75
76
Sec. 443 para (2) of the Commercial Code.
2005, p. 267.
Ibid, p. 267.
Sec. 627 of the CommC.
Sec. 628 of the CommC; the general rules of the right of lien shall be applied on
regulation of this consignor’s right. For general ‘right of lien’ please see p. 22.
Sec. 444 of the CommC.
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Legal regulation of the transfer of movables in Slovak law is very general; that is why a great latitude is left for an agreement between contracting parties, if it is the case of the moment of transfer of title and also of the
form of delivery equivalents, regardless the civil or commercial character of
the relations. The principle of publicity in favour of third-party protection
does not play a very important role with respect to transfer of movables.
On the other side, it is much more obvious in legal regulation of transfer of
immovables – real estate property.
5.3.
Registration
As discussed (see 4, above.), a general principle of the “two-stage procedure” of transferring the ownership right (titulus and modus) applies to the
transfer of movables and immovables. In the first stage, the contract is made
(titulus), and in the second stage, the transfer is finalised by modus, which
in the case of movables is traditio (handing-over) and in the case of immovables is registration of the ownership right and title in the appropriate
land register (kataster nehnuteľností).
Registration in general regarding different types of assets is a legal fact
giving rise to various legal effects. In Slovak law these legal effects are:
finalising of contractual transfer of ownership title to immovables on the
basis of registration in a land register (kataster nehnuteľností); transfer of
some types of assets of value belonging to intellectual property law regulation (mostly “industrial and commercial rights of intellectual property” as
rights of patent, design, trade mark etc.), which takes affect erga omnes only
on the basis of registration in the registers established by statute.77
A special group of assets subject to registration in a particular register
are the so-called “registered negotiable securities”. The contractual transfer
of these securities is finalised only by means of registration in the Central
Securities Depositary (Centrálny depozitár cenných papierov) established by
the Securities and Investment Services Act No 566 / 2001 Coll. The same
legal consequence results from the registration of a share transfer in a capital company, made in the Commercial Register (Obchodný register) pursuant
the applicable statutes of Commercial Code and the Commercial Register
Act No 530 / 2003 Coll., as amended.
With regard to movables and their registration,78 it is of relevance that
registration in the Notarial Central Pledge Register (Notársky centrálny
77
78
The Trade Marks Act No 55 / 1997 Coll as amended, The Patent Act No 435 / 2001
Coll. as amended.
It is not the case of “registration of movable” when interpreted literally but mere
registration of “right attached to movable”, in this case right of pledge.
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register záložných práv) managed by the Chamber of Notaries of the Slovak
Republic has constitutive legal effects in relation to creation of right of
pledge, where the subject of pledge is a movable asset.
These legal effects of the right of pledge registration can be, in some
cases, taken as a combination of registration in the Central Pledge Register
and in other particular registers. This is the case of the registration of a
so-called “set” of property rights and other assets of value, enterprise or its
part, etc. The registration in the Notarial Central Pledge Register results in
creation of a right of pledge only of the entire “set of assets” as a whole. For
creation of a right of pledge to individual parts of this “set of assets” (e.g.
patents, trade marks, immovables), if required by applicable law, registration in a specific register is also required.
The principle of material publicity applies to registration in all particular registers. Registration in the Notarial Central Pledge Register (Notársky
centrálny register záložných práv) makes use of the formal publicity principle.
As a consequence, the entries in this register do not have an authentic nature but only an informative one against third persons.79 In this context it
should be briefly mentioned that, with respect to particular movables, there
are rules of registration in the field of public law (administrative law) as well.
These rules regard mostly various types of vehicles (cars, motorcycles, long
vehicles, etc.) This kind of registration also causes legal affect, but not in
the field of private property law. The function of registration of a vehicle, of
its holder or even of its owner, is mostly determined by the public necessity
of simple and quick identification of the subject liable for its operation.
6.
Disposition and underlying obligations
6.1.
Requirement of a valid obligation to transfer ownership
The Civil Code sets forth a list of legal facts upon which title may be acquired. It is an open list as it refers to other legal facts ruled by individual
regulations. Ownership (“vlastníctvo”) of property may be acquired by a contract of purchase, a donative or some other contract, by inheritance, by decisions of a state authority, or on the basis of other facts laid down by law.
The most typical alienation contracts, according to which title is acquired, are contracts of sale, barter, and donation.80 Except for these contracts,
the Civil Code sets forth a whole range of other contracts according to which
79
80
Lazar, J. et al.: Občianske právo hmotné. Bratislava, 2006, p. 511.
Donative contract – donation is pursuant to Slovak applicable laws bilateral legal
act – bilateral contract. Donation is treated as other contracts with respect to the
rules regarding transfer of title.
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subjects may acquire title. To this belongs, first of all, contracts for labour
whereby a new object is made,81 agreements of co-owners upon termination
of co-ownership and mutual settlement,82 and agreement of heirs upon settlement of the inheritance.83 Eventually, it is possible to acquire title also on
the basis of an innominate contract,84 one not specifically regulated by law,
on the condition that it does not violate the content or the aim of the law. In
these cases, the contractual transfer of title of a movable is ruled by the general regulations explained in part 5.1 of this report. Individual rules regarding
transfer are valid in case of other ways of derivative acquisition of title, and
this is mainly by decision of state authorities or by inheritance.
In the case of acquiring title according to decisions of state authorities,
decisions of court and administrative authorities85 come into focus. In this
case, it is not a question of determining the object of the contract – if it is
a movable or immovable, nor is it crucial to determine who, at the time
of acquiring title, had the object in his or her possession. The actual act of
delivering (traditio) in this case also has no legal consequence in relation to
the transfer of title. The basic rule regarding transfer of title by decision of
a state authority is simply that ownership title is acquired on the day stated
in that decision; if the day is not stated, then on the day when the decision
takes effect: the transfer of title to the transferee happens without anything
else. Examples of such transfers include court decisions defining the owner
to newly produced property in case of processing (see 12.3, below), or the
decision of a state administrative authority regarding expropriation.86
Individual rules regarding transfer of title apply also in case of inheritance. The Civil Code’s basis in case of inheritance regulation is the principle of universal succession, i.e. an heir enters the possessive legal relationship of the testator in its entirety, including rights and duties. Except
for the principle of universal succession, the principle that heirs acquire
inheritances (including both active and passive property rights) ipso iure
directly by the fact of the testator’s death is applied in Slovak hereditary
law. There is no need for the heir to act, e.g. accept the inheritance. The
principle of acquiring the inheritance at the moment of the testator’s death
will be applied.87 It results in the fact that, until the moment of legitimate
81
82
83
84
85
86
87
Sec. 631 et seq of Civil Code.
Sec. 141 of Civil Code.
Sec. 482 para (1) of Civil Code.
It is so-called additional principle (adičný princíp) as opposite of so-called delacional
principle (delačný princíp). Additional principle requires for acquiring of inheritance
(property) a legal act of an heir being an acceptance of inheritance; in delacional
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termination of the inheritance procedure by the court (acquiring an inheritance is obligatorily connected with the decision of the court about the
inheritance), everybody who can inherit according to the law is a co-owner
of the movables included in the decedent’s estate. In reality, it means that
from the testator’s death until the legitimate termination of the inheritance
procedure, every heir, unless he or she has renounced the inheritance,88 is
lawfully in possession of inherited property and obliged in the legal acts
related thereto against third parties.
This principle has further consequences, namely that the court decision
in an inheritance procedure and any later acts (inheritance agreement,
denial of heritage) have retroactive effect (ex tunc effect) ad diem of the
testator’s death. If the heirs within the terminated inheritance procedure
agree (e.g. in the form of inheritance agreement) that a concrete movable
asset (e.g. the car that was in the possession of the testator) will be in the
exclusive ownership of one of the heirs, he or she is the owner of this possession ex tunc ad diem of testator’s death.
6.1.1. Different forms of defects affecting transfer of ownership
Legal acts are not valid if they lack the propriety law demands. Legal consequences of faulty legal acts are the possible nullity of the legal act or unilateral
withdrawal from the contract. There is a principle in the Civil Code that null
legal acts are null absolutely unless the law declares them to be only relatively
null. Absolute nullity arises directly ex lege; the courts have held that such
an absolute nullity cannot be modified by a further approval (ratification or
rehabilitation) and cannot be reversed by removal of the cause of the nullity.
Furthermore, absolute nullity has an ex tunc effect, i.e. the transfer of title did
not happen, as if the contract had not been signed.
The nullity of a contract, or of any generally null legal act, results in the
right to claim unjustified enrichment, i.e. the return of all property that was
transferred according to the contract. The practice of the courts is the same,
e.g. if the contract of sale in business would be for any reason null, then all
contract parties are obliged to return all property that was given to them
according to the contract. It does not depend on the buyer’s good faith, but is
exclusively a question of validity of the legal act. However, it is possible that
the parties sign immediately a new valid contract of sale in business.89
88
89
principle it not required as there is a legal presumtion that a heir acquires inheritence
at the moment of the testator’s death.
Compare Lazar, J. et al.: Základy občianskeho práva homtného, Volume 1, Bratislava
2004, p. 362.
See R 2 / 1978.
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In the case of good faith, the absolutely null contract is considered iusta
causa possesionis and the possessor may then acquire ownership title to the
movable object of the contract by acquisitive prescription – upon fulfilment of its requirements pursuant to applicable provisions of Civil Code.
If one party to a contract is without the legal competence to do legal acts,
the contract is absolutely null and the title has never been transferred to
the transferee. Similarly, a person acting with mental handicap is unable
to do the legal act.90
Any a legal act must be of one’s free will, in earnest, and in a definite
and intelligible manner, otherwise the act is null and void.91 Lack of free
will means acting under forbidden duress from another party to the contract or even from a third party forcing one party to enter into the contract
with the other party. Theory of civil law distinguishes physical duress (vis
absoluta) and mental duress (vis compulsiva). If it came to the signing of a
contract according to which a title should be transferred under the impact
of physical or mental duress, such contract would be marked by sanction of
absolute nullity: it would have never come to transfer title.
Free will is lacking also in the case of a mistake based on a false or insufficient idea about the legal consequences that will result from the legal
act. A legal act is null if undertaken mistakenly by a party on the basis of
an erroneous fact being decisive for performance of the act in question and
if the other party to whom the legal act was addressed either induced such
error or had to be aware of it. A legal act is also rendered null if such error
was induced by the said party deliberately.
However, an error in motive does not invalidate the legal act concerned.92 Such an essential error may be caused by negligence, carelessness
or deliberately. If it was caused deliberately, it is not relevant if it was an
essential or non-essential error. The Civil Code sanctions errors of free
will only with relative nullity.93 It means that, for example, a contract of
transfer of title to a movable asset is considered to be legally binding until
the moment when the affected party claims nullity due to having been
misled by an error.
Contrary to absolute nullity, relative nullity is not directly laid down by
law, but it is based on the rebuttal presumption that a legal act is valid. A
relatively null legal act causes legal consequences as if it were valid, until
it is declared null and deprived of these consequences. It can be deprived
of these consequences either by the court or other state authority, or by
90
91
92
93
Sec. 38 para (1), (2) of Civil Code.
Sec. 37 para 1 of Civil Code.
Sec. 49a of Civil Code.
Sec. 40a of Civil Code which contains the rigorous list of those provisions of Civil
Code comprising nullity of legal acts considered as relative nullity.
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the fact that it is considered null by the parties in a bilateral agreement,
i.e. when the party against whom the second party is claiming nullity acknowledges its nullity.
According to a second opinion, declared mainly by the courts,94 relative
nullity of a legal act can come into existence by unilateral enforcement,
namely at the moment the party who acted in error and who now wants to
claim nullity comes to the second party and claims nullity. However, in both
cases the nullity arises ex tunc.95 In relation to transfer of title according to a
contract of sale, the same rule in case of “reaching of relative nullity” is applied as in the case of absolute nullity, i.e. the contract (titulus) is cancelled
ex tunc, which also results in nullity of all transfers and any delivered movable asset and accepted purchase price being unjustified enrichment.
Following the Slovak Civil Code, the same rules regarding the legal
consequences of total or relative nullity of a contract are applied also in
the case of unilateral contract repudiation. The repudiation of a contract
renders the contract null from its inception, unless some statutory provisions regulate otherwise or unless the contracting parties have agreed differently.96 The Civil Code constitutes the given rule (extinguishment ex
tunc of a contract) in this case only sparingly.
Legal regulation on contract repudiation in the Civil Code (see Sec.
48, 49, 497) does not relate to commercial relationships. Special regulation of contract repudiation of particular contract types in the Civil Code
is mentioned prior to the general regulations. The most relevant difference
between contract repudiation in the Civil Code, where repudiation causes
extinguishment of a contract ex tunc and contract repudiation in commercial relationships is at the moment of the repudiation itself (ex nunc). All
regulations on contract repudiation in the Commercial Code are subject to
party autonomy whereby the parties may agree on a possibility and manner
of repudiation or totally exclude repudiation.
6.1.2. Conditional contracts
The Civil Code makes it possible to condition the rise of the legal consequences of a contract transferring ownership of movables. The creation,
modification, or extinguishment of a right or duty may be made dependent
on fulfilment of a certain condition. This agreed condition must be possible,
otherwise it shall not be taken into consideration. The law directly differ94
95
96
R 50 / 1985, R 45 / 1986.
Knapp,V., Knappová, M., Švestka, J., Dvořák, J., Macková, A., Mikeš, J., Radvanová,
P.: Občanské právo hmotné, svazek 1. CODEX, Praha 1997, p. 110, 111.
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entiates between two types of conditions, being the suspensive condition
and the resolutive condition.
A condition is suspensive if a certain legal act becomes effective upon
fulfilment of this condition. A condition is resolutive if its fulfilment brings
about the annulment of an already existing right or duty (obligation).97 It
is evident that in case of a suspensive condition, there is a certain level of
uncertainty between contracting parties whether legal effects of a contract
will ever occur, as they are dependent on the condition fulfilment; in case
of a resolutive condition, contracting parties are unsure whether legal effects, which already took effect, will remain in existence. In the first case,
provided that the condition is fulfilled, legal effects will take effect ex nunc;
in the second case, by the fulfilment of the condition, effects of the legal act
will pass ex nunc, i.e. as of the time of the fulfilment of the condition.
7.
Rules for double or multiple selling
1. This deals with the situation where A sells the same asset to B and afterwards also to C (or to further buyers D, E etc.). This situation needs
to be analysed mainly with respect to whether these double or multiple
transfers were made in realization of civil-law or commercial-law relations between A – B and A – C, since the consequences of these actions will be different in both cases. Good faith acquisition can only be
considered in a commercial-law relationship (Sec. 446 of ComC). In
principle, the relationship between A – C is decisive, assuming that the
transfer between A – B came before the transfer between B – C. The key
question is whether there is a need to apply the Commercial Code, as
“lex specialis” relative to the Civil Code, to the transfer between A – C.
Whether the relationship between A – B is civil-law or commercial-law
is not decisive in relation to C.
7.1.
Both A – B and A – C are governed by civil-law
As discussed above regarding ownership right and its acquisition (see
Part II), in general the Roman law principle nemo plus iuris ad alium transfere
potest quam ipse habet applies. It means that B or C can acquire the ownership right but only to the same extent as A.
There are a couple of exceptions to this principle mentioned in the Civil
Code; however, these are not of relevance at this point.98 If a valid right of
97
98
Sec. 36 para (1), (2) of Civil Code.
See part 5. of this report for more details.
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7. Rules for double or multiple selling
405
ownership transfer between A – B took place on the basis of a contract of
sale, A could not subsequently transfer the same ownership right validly to
C, as at the moment of concluding the contract for sale with C he was not
its owner. The contract for sale between A – C, according to statute Sec. 39
of CC, is then absolutely null ex tunc, because it is a legal act, whose content
contradicts the law. If C paid A the purchase price for the object of sale,
then A is obligated to return the purchase price ex unjust enrichment.
Equally, if C was handed the object of purchase, he is obliged to return
it to either A or B, depending on which one has the ownership right to the
property. If, reversely, A sold the property to B, based for some reason on
an absolutely invalid contract, and then subsequently sold the same property to buyer C but this time based upon a valid contract, then C would
become the owner of the property even though this transfer was preceded
by another, albeit invalid act of law.
As regards the role played by the delivery of the object (traditio) in the
case of double or multiple selling, the answer to the question of ownership
depends on the contractual obligation in each individual case. If the contracting parties agreed on a consensual principle, the matter of physically
transferring the property is irrelevant in relation to the contract’s validity
or nullity. If, on the other hand, a traditio principle was agreed (or there was
nothing to the contrary agreed upon)99 and A did not transfer the object or
its equivalent (keys, documents, other means), then the second phase of the
transfer (modus) did not occur (even though the first phase was concluded
lawfully) and the transfer of the ownership right to B did not occur.
Based on the contract, B has a legal right to the object of sale and can
sue A “for fulfilment or performance”. However, if A subsequently sold the
same object to buyer C, then C would acquire ownership lawfully. In this
case, B has the right only to claim reimbursement for damage, according to
the general statute Sec. 420 (1) of CC; or, if a withdrawal from the contract
occurred, B has a right to claim unjustified enrichment, which mainly seeks
return of the paid purchase price.
7.2.
A – B is governed by civil law and A – C by commercial law
At the level of private law, there is one more quite broadly outlined exception to the principle “nemo plus iuris (…)” or “nemo dat quod non habet”.
This is the case of a business relationship under a contract for sale that was
established in accordance with Sec. 409 et seq. of the Commercial Code.
99
The rule is that an ownership right to a movable is acquired on the basis of a contract by disposing of it, if the contracting parties have not agreed otherwise, or if a
regulation does not says otherwise. [§ 133 (1) of CC].
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In the case of a business relationship between A – C, the buyer being C,
he shall acquire the ownership right even if A is not the owner of the goods
unless, at the time when C was supposed to acquire the ownership right,
C knew that A was not the owner and, thus, not entitled to sell them.100
Otherwise, if C was in good faith he thus becomes the owner, despite the
fact that at the time of the sale A was not the owner of the goods because
he had already sold them to another purchaser.101 It is possible to assume
that good faith on the part of C not only applies to the belief that A is the
owner of the property, but alternatively to the belief that A is entitled to
dispose the property (e.g. as a commission agent).102
Thus, if we assume that C was in good faith when he acquired the
property, we must ask what will happen to the ownership right of B to the
same property. The buyer B, even before C, acquired ownership of the same
property lawfully; however, this was not based on rules of good faith, but
on a valid contract (titulus) and a possible subsequent handing-over and
receiving of the property (modus). Commercial Code Sec. 446 provides a
protection for the buyer in good faith and concedes that this buyer acquires
ownership of the goods also in the case of the seller not being the owner,
which is apparent case of A in relation to C as a new owner.
However, the responsibility of seller A towards the original owner B
(since A sold his property or goods without his knowledge) remains untouched. It will mainly be the case of liability for damage caused by an illegal sale of goods. Property rights (mainly the most comprehensive right in
rem – the ownership right of B) attached to the sold goods and is untouched
by this transfer. It will be a case of a legal defect in the goods (namely the
title) and buyer C in relation to A has a claim ex liability for such defect
(see Sec. 422 et seq. of ComC) at his disposal.
According to the author’s opinion, the decisive factor in the relationship between B and C is who physically possesses the goods sold twice by
seller A. If the goods are in the factual power of B, then C, even though
he has the same right of ownership to the goods as B, cannot successfully
claim the surrender of the goods based upon an ownership action of rei
vindicatio, because B is not retaining the goods unlawfully; to the contrary,
he is realising his partial ownership right ius possidendi.
100
101
102
Sec. 446 of the Commercial Code.
For more details see Part II of this report.
Lazar, J. et al.: Občianske právo hmotné. Volume 1. Bratislava, 2006, p. 426.
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8. Rules for “selling in a chain”
8.
407
Rules for “selling in a chain”
This chapter deals with situations wherein A sells to B and B to C; then,
A delivers the goods directly to C.
8.1.
General rules for valid contracts
The Slovak laws do not regulate “selling in a chain” or its consequences by
any special rules. Therefore, according to the author’s opinion, it is necessary to apply rules for the valid transfer of ownership based on “alienation
contracts” (e.g. sale, donation) in general. Again, it is necessary to point
out the duplication of legal regulations in the civil and commercial law,
indicating a detailed analysis in the case of double / multiple selling. In principle, the consequences are the same, especially when discussing the nullity
of contracts of transfer and the consequent mutual claims among them, in
the case of selling in a chain, i.e. between A – B – C, etc.
From the situation of A selling goods to B and B subsequently to C, and
A being asked to deliver the goods directly to C, it is possible to conclude
that the contract for sale concluded between A – B follows a consensual
principle, since the transfer of an ownership right to B does not require a
delivery of the transferred property. Buyer B shall simultaneously become
an owner at the moment of conclusion of such an agreement. Another conclusion appears to be unacceptable because, if the situation were different,
B would not be able to lawfully transfer an ownership right to C, because
he would not be entitled to dispose of the property due to a non-existent
ownership right to it.
In other words, B has to become the owner, without the property being
physically delivered to him even for a moment, to be able to transfer the
ownership right onto C, obliging the nemo plus iuris regulation. An agreement inter partes A – B about the delivery of property to C does not have
any influence on the occurrence of B’s ownership right to the delivered
property. The ownership right to property may transfer from B to C, e.g. either at the moment of concluding the agreement with B or by default at the
moment of delivering the transferred property to acquirer C. The fact that
A delivered the property to C in the name of B is irrelevant to the moment
of transfer of the ownership right to C. Of course, with such a construction,
our starting point is the basic assumption that the contracts for sale concluded between A –B and B – C are valid. If there was a reservation of title
agreed between B and C, by transferring property through A to the acquirer
C, the ownership right does not transfer to him, but remains with seller B
until the complete payment of the purchase price. Until then, C is only a
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detentor of property based on an agreement for its use for a certain purpose,
meaning until the time when he becomes the owner of the property.
8.2.
Rules when contracts fail
8.2.1. Civil law relation between A – B – C
If we assume that the contracts for sale between A – B – C are absolutely
null, they are lawfully cancelled ex tunc, which de facto means a return to the
state of “the agreements not being concluded”. A direct consequence of an
absolute invalidity of agreements between A – B and B – C is that the owner
of the property is A, to the full extent, since he was the first “link in the
chain”. Another consequence is the occurrence of obligations ex unjust enrichment, i.e. A – B and C are obliged to mutually redeliver “performances”
that were delivered among themselves based the invalid agreements.
8.2.2. Commercial law relation A – B – C
The consequences mentioned above (see 8.2.1.) in cases of absolute nullity of
agreements between A – B and B – C in civil relationships are analogous to
the case of commercial-law relationships, with the exception that the Commercial Code allows good faith acquisitions (see sec. 446 of ComC). In certain circumstances, as in the invalidity of all agreements, the owner of the
goods will be C; however this would be a case of good faith acquisition. The
delivery of the goods themselves is not relevant to the ownership right of C.
9.
Transfer by means of indirect representation
This deals with situations wherein party X transfers a movable in his or
her own name, but on account of or in the interest of another person
A. The Slovak Civil Code, in the third chapter called “Representation”,
regulates only direct representation. Indirect representation, found in some
contracts, is regulated outside of this chapter (e.g. contract for arranging
the sale of a property pursuant to Sec. 737 et seq. of CC, agency contract
pursuant to Sec. 774 et seq. of CC).
In the case of such an indirect representation (“substitution”), the representative exercises his own expression of will in the interest of a third
person and in his own name; as a consequence, the rights and obligations
are acquired by an indirect representative who, according to an agreement
with the represented person, is obliged to transfer acquired rights to the
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represented person.103 The clearest example of an indirect representation
is representation based on a “commission agreement”.
Sec. 577 ComC. A commission agreement requires the commission agent to set
up a certain business matter in his own name for the principal, and the principal
undertakes to pay him remuneration.
“Setting up a certain business” is e.g. buying or selling goods or some other
asset. Accordingly, X is a commission agent and person A is the principal
(committer) on whose account X acquires a movable asset in his own name.
Therefore, in principle, legal acts of X do not create any rights or obligations of A concerning his relationship to third parties. These persons are
in relation to X and not to A.
As concerns the transfer of ownership right to movable property, the
Commercial Code distinguishes between two situations: a “commission to
sell” (if commission agent X was delivered property for sale) and a “commission to buy” (if X acquired a movable asset for A.)
Sec. 583 (1) ComC. The principal has an ownership right to movable property
delivered to the commission agent for sale, unless acquired by a third person.
An ownership right to movable property acquired for the principal is acquired
by the principal on delivery to the commission agent.
In the case of “commission to sell”, the ownership right does not pass to
intermediary X. On the contrary, it remains with transferor A until the
moment of transferee B acquiring it (i.e. the moment of delivery of a transferred movable). Thus, the transfer of ownership right is carried out by
intermediary X from person A to person B as the acquirer.
In the case of “commission to buy”, the moment of transfer of ownership right to the acquirer is conditioned by the delivery of the property to
intermediary X. It is therefore obvious that the intermediary commission
agent X does not even for a moment become the owner of a property and
the ownership right passes directly from transferor A to transferee B.
10.
Consequences of insolvency of transferor or transferee
10.1.
General issues
As of the moment of commencement of bankruptcy (insolvency) proceedings, the right of the bankruptcy debtor to dispose of his property (ius dis103
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ponendi), as well as the permission to act in all other matters concerning
his property, passes to a bankruptcy administrator. Thus, the bankruptcy
debtor loses his rights concerning his property to the extent the property
has been transferred to the bankruptcy estate.
If, despite the insolvency proceedings, the debtor disposes of property in
the estate, it will not be considered a null, voidable or ineffective disposal of
the property, but rather it will be considered a non-existent disposal, which
does not hold any consequences and, thus, the transfer of the ownership
right to this property will not have passed to the acquirer. The ius disponendi
that have passed from the bankruptcy debtor to the bankruptcy administrator are carried out in the name of and on account of the bankruptcy debtor
by the bankruptcy administrator. It is an analogous form of a statutorily
mandatory relationship.
Only those rights of disposal that concern property in the bankruptcy
estate, transfer to the bankruptcy administrator from the bankruptcy debtor. Therefore, the rights of disposal regarding property not subject to the
bankruptcy estate, despite belonging to the bankruptcy debtor,104 continue
to remain with the bankruptcy debtor throughout the insolvency proceedings. By termination of the insolvency proceedings, the bankruptcy debtor
regains his rights of disposal, which he lost in the insolvency proceedings,
in full measure. The legal acts taken during the proceedings, however, remain valid and effective.105
The fact that the rights of disposal regarding the property in the bankruptcy estate have transferred from bankruptcy debtor to the bankruptcy
administrator does not mean that the bankruptcy debtor could not carry
out any legal acts. The bankruptcy debtor keeps his rights of disposal regarding property that is not subject to the bankruptcy estate (e.g. property
excluded from execution). Also, the ability of the bankruptcy debtor to
incur liabilities (concluding contracts, carrying out unilateral legal acts,
etc.) is not restricted during the bankruptcy proceedings in the sense that
the legal acts binding the bankruptcy debtor are null or voidable.
These legal acts remain still valid, but if they have been contested by
bankruptcy creditors, they became ineffective, but only towards the bankruptcy creditors, and only when they reduce the property affected by bankruptcy proceedings, i.e. the bankruptcy estate. Towards these bankruptcy
creditors, the contested legal act has no legal effect. This means that, upon
their claim, all pecuniary assets transferred on the basis of these legal acts
must be returned to the bankruptcy estate by the transferee.106 However,
if ownership title to property, rights or other property values belonging to
104
105
106
Sec. 72 of Bankruptcy Act.
Sec. 102 (4) of Bankruptcy Act.
Sec. 63 para (2) of Bancruptcy Act.
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bankruptcy estate have passed from bankruptcy debtor to transferee upon
successfully contested legal act, as this ownership title remains to transferee.
This ineffectiveness then mean that on the basis of a contested legal act,
bankruptcy creditors are entitled to claim from the transferee a pecuniary
compensation for transferred ownership title to property, rights or other
property values, or their returning to the bankruptcy estate if possible.107
During the insolvency proceedings, the bankruptcy debtor is not entitled to receive the fulfilment of his claims and his debtors are obliged to
settle these claims with the bankruptcy administrator, not the bankruptcy
debtor. If, despite this, a debtor of the bankruptcy debtor settled a claim
not with the bankruptcy administrator, but with the bankruptcy debtor, or
other person entitled to receive the fulfilment in the bankruptcy debtor’s
name during insolvency proceedings, the obligation would not cease, but
would continue until the fulfilment is (also) settled with the bankruptcy
administrator.
For the bankruptcy debtor to effectively refuse a gift or inheritance,
which he is to acquire during the proceedings, he needs the consent of the
administrator. Without consent, the denial of a gift or inheritance by the
debtor is ineffective towards his creditors.
Regarding contracts of mutual performance that the bankruptcy debtor
concluded before commencement of the insolvency proceedings:
(1) If bankruptcy debtor had already fulfilled such a contract, but the
other contracting party had not by the time of the order of insolvency
proceedings, or had only partly fulfilled (this applies to contracts in
which the debtor acts as the creditor), the administrator has a choice
to withdraw from the contract or request its fulfilment:108 he can only
withdraw from the contract to the extent of unfulfilled obligations
of the other party. It is therefore forbidden for the administrator, as a
result of the proceedings, to be able to withdraw from mutually fulfilled
obligations.
(2) If the other party had fulfilled such a contract, but the debtor had not
or had only partly fulfilled it by the time of the insolvency proceedings (this applies to contracts where the bankruptcy debtor acts as the
debtor), the other party is entitled to withdraw from the contract to
the extent of unfulfilled obligations of the debtor.109
(3) If, at time of the proceedings neither the debtor nor the other party had
fulfilled their obligations (these are contracts where both contracting
parties have mutual obligations; i.e. the bankruptcy debtor acts as both
the debtor in one obligation and as the creditor in another obligation,
107
108
109
Sec. 63 para (1) of Bankcruptcy Act.
Sec. 45 para (1) of Bankruptcy Act.
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both arising from the same contract), both parties (the debtor and the
other contracting party) are offered the option to withdraw from the
contract to the extent of yet unfulfilled mutual obligations.110
The claims that arose for the other contracting party from the contract, if
concluded with the bankruptcy debtor before the insolvency proceedings
regarding the fulfilment offered to the administrator after the proceedings,
are a claim against the estate (e.g. if a water company supplies the bankruptcy debtor with water, the payments for water supplied before the insolvency proceedings are exercised in the insolvency proceeding by means of a
creditor’s application for registration of these claims, but not the payments
for water supplied during the proceeding, because then they are considered
to be claims against estate).
10.1.1. Actio Pauliana
A legal act regarding the property of the bankruptcy debtor belonging to
the bankruptcy estate may be contested in the insolvency proceedings and
thus achieve its ineffectiveness against bankruptcy creditors. The right to
contest a legal act may be exercised by the bankruptcy administrator and in
certain cases by the bankruptcy creditor of the registered claim.
The right to contest a legal act can be effectively exercised only when all
the conditions required by the Bankruptcy Act are fulfilled. A regulation of
“legal acts contest” is also contained in the Civil Code.111 However, for the
purpose of the insolvency proceedings, it is a legal regulation whose application is dismissed due to a specific legal regulation contained in the Bankruptcy Act (lex specialis derogat legi generali). The basic difference between a legal
regulation of a legal act contest in the Civil Code and the legal regulation of
legal act contest in the Bankruptcy Act lies in the fact that, according to the
Civil Code, the ineffectiveness of the legal act can only be called for in the
case of the creditor who took a “contest action” against the debtor.
As opposed to that, the case of calling for ineffectiveness of the legal
acts according to the Bankruptcy Act results in ineffectiveness towards all
creditors. This is a basic but not the only difference, of course. The ineffectiveness of a legal act does not mean its nullity. The option to contest
a legal act is not only a right, but also a duty of the administrator. The
administrator is obliged to thoroughly and professionally examine all legal
actions of the debtor and contest those legal actions where such a contest
can be reasonably expected.112
110
111
Sec. 45 para (3) of Bankcruptcy Act.
Sec. 42a et seq of CC.
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Only acts of law reducing the settlement of a registered claim of one of
the creditors of the debtor can be contested. It does not necessarily mean
the reduction of all the creditors’ registered claims; a reduction of only one
of the creditors’ registered claims would be enough.113 In the case of an ineffective legal act, by which some of the debtor’s assets (property, rights, or
other property values) were transferred, the return of the transferred assets
back into the estate, or a pecuniary reimbursement, can be claimed. The
choice is left to the bankruptcy administrator, or to the bankruptcy creditor
who had successfully contested a legal act.114
The person, against whom the right to contest a legal act was brought,
is only required to return or reimburse to the extent of that which had
been transferred to him by the ineffective legal act. Therefore, if a legal
successor had not acquired all the assets transferred from the bankruptcy
debtor’s property by a predecessor (e.g. perhaps because it was later divided
and later only a part of it was transferred), the administrator may only claim
the return of the part of the transferred assets from the legal successor that
was transferred to him by the ineffective legal act; or only the respective
pecuniary reimbursement can be claimed.
If the bankruptcy estate was enriched as a result of a transfer based upon
an ineffective legal act, the one at whose expense the bankruptcy estate was
enriched has the right of return of the enrichment from the estate. A claim
ex enrichment can be exercised as a claim against the aggrieved bankruptcy
estate (the estate enriched as a result of the ineffective legal act). It is
mainly the case of a successful actio Pauliana115 carried out by a bankruptcy
creditor or administrator against a transferee who acquired property from
the bankruptcy estate and who increases its value in the meantime. Then
he has to return it to the bankruptcy estate together with the increase
in value. The amount of the increase can be claimed by him against the
bankruptcy estate ex enrichment.
112
10.2.
Insolvency of transferor
By applying the above-mentioned (see 10.1 above) general rules on the
transfer of ownership of movable property in case of bankruptcy proceedings, the question of this transfer taking place before or after the proceedings is decisive.
112
113
114
115
Sec. 57 of Bankruptcy Act; so-called Actio Pauliana is not a legal term applicable in
Slovak jurisdiction however “The Contest Action” is analogous thereto.
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In the first case, when the transfer is before the proceedings, the transferee becomes the owner of the transferred property and the property does
not belong to a bankruptcy estate. Plus, if the property is in possession of
the transferee, general creditors or the administrator do not have any claim
to it that they could bring during the insolvency proceedings. If, after the
transfer of ownership right to the transferee, the transferred property is
still in the possession of the bankruptcy debtor, and for this reason it is
included in the bankruptcy estate, the transferee has the right to claim the
exclusion of this property from the estate on the basis that it is not property of the bankruptcy debtor. By what reason the transferred property is
still in possession of the transferor (e.g. a retention right in the case of not
paying the purchase price or an agreement according to the sale contract)
is irrelevant.
A different situation would be the case if the transferee acquired the
ownership of the property by an agreement or by its hand-over, and not by
fulfilment of his obligations properly (by paying the transferor the purchase
price) and on time. Then the administrator has the choice of withdrawing from the contract or requesting the payment of the purchase price. If
the administrator withdrew from the contract, the transferee would subsequently be obliged to return the property to the administrator of the
bankruptcy estate, since the ownership of the property would revert to the
bankruptcy debtor.
If it comes to an (attempted) quasi transfer of the ownership right to
property belonging to a bankruptcy estate, the same rule applies, i.e. with
commencement of insolvency proceedings, the debtor lost his right of disposal to property of the bankruptcy estate and, therefore, it is a case of non
negotium – a null disposal of property with no legal consequences. A transfer
of an ownership right to the transferee shall never occur and had never occurred. However, this rule does not exclude the acquiring of an ownership
right to such a property on the basis of the rule of good faith acquisition
pursuant to respective provisions of the Commercial Code.116
10.3.
Insolvency of transferee
The ability of the bankruptcy debtor to conclude contracts or carry out
unilateral legal acts and thereby acquire property into his possession is,
in principle, not limited during insolvency proceedings. The exceptions
to this are “binding” legal acts, which decrease the property in insolvency
proceedings (the bankruptcy estate). Although these legal acts are valid,
they are ineffective towards general creditors of this bankruptcy estate.
116
See Part 8 of this Report.
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However, during the bankruptcy proceedings, the bankruptcy debtor is
not eligible to accept fulfilments and, thus, in case of handing-over property
otherwise subject to transfer to the bankruptcy debtor, the transferor is
instead obliged to hand-over the property to the bankruptcy estate administrator, not the bankruptcy debtor. If, despite this, the transferor handedover the property (fulfilled his obligation) to the bankruptcy debtor, or to
another person eligible to accept the fulfilment for the bankruptcy debtor,
his obligation would not cease, but rather would continue until he had
fulfilled his obligation to the administrator. In this case, the administrator
is entitled to request the fulfilment from the transferor by an action for
performance, despite the fact that the transferor has already fulfilled his
obligations directly to the bankruptcy debtor.
11.
Passing of ownership and passing of risk
§ 133 (1) CC. When movable property is transferred on the basis of contract,
ownership (title) to such property is acquired by the handing-over of the property, unless statutory provisions regulate otherwise or unless the parties have
agreed differently.
§ 590 CC. Unless it is agreed otherwise, the risk of accidental destruction or
accidental impairment of the object of sale and its profits (fruits) shall pass to
the buyer at the time when he acquires ownership title to such object. If the
buyer acquires ownership title to the object of the sale before it is delivered to
him, the seller shall have the duties of a bailee (custodian) until the object is
delivered to the buyer.
The time of transferring ownership of property does not need be identical with the time of passing the property to an acquirer. According to the
above-quoted statutes, along with the transfer of ownership, there is the
transfer of the risk of accidental destruction or impairment of the property,
including its profits, unless the parties agree otherwise. If, in this case, the
buyer acquires the ownership title to the object of the sale before it is delivered to him, the seller retains the duties of a bailee until its delivery.117
That means that the risk of a property’s accidental destruction or impairment, including to the benefits, passes to the acquirer together with the
ownership title, under the condition that if the seller, now acting as the
bailee, violates some of the specific duties of a bailee (Sec. 751 of CC), he
will also be responsible for the damage, unless the damage would have oc-
117
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curred regardless of the violation.118 The danger of accidental destruction
or impairment of an object can be passed to the acquirer before he receives
the ownership title, including in the case of reservation of title,119 but only
if it was not agreed otherwise.
The Commercial Code (Sec. 455 to 461) deals in greater detail with
the risk of damage to goods.
Sec. 455 ComC. The risk of damage to goods (Sec. 368 para 2) is transferred to
the buyer at the time of the buyer’s hand-over of the goods, or if not done so in
time, then the risk passes to the buyer when the seller allows him / her to handle
the goods or when the buyer breaks a contract by failing to receive the goods.
The receiving of goods is the final act of the handing-over, whilst at the
same time being the moment that the Commercial Code describes as the
passing of the ownership right from a seller to a buyer. It can therefore be
said that the risk of damage to goods passes to the buyer – according to
these “general rules” – together with the ownership right to the goods. In
principle, the risk of damage to goods affects the owner of the goods (res
perit domino). If the buyer is in breach of his contractual duty to receive the
goods on time, the risk of damage passes onto him at the moment the seller
tenders the goods. This regulation (Sec. 455 of ComC) shall also apply in
the case of the seller sending his goods to a destination, which was agreed
as the place of fulfilling his obligation; only at this place the hand-over,
the receiving of the goods and the passing of risk, will take place. However,
passing of risk will take place even if the buyer fails to take possession,
contrary to his contractual obligation.
An exception is the case of the goods being sold by means of “disposition documents” (e.g. dock warrant, bill of lading, consignment note).
The risk of damage passes to the buyer at the handing-over of these documents of title, which represent the goods, and the receiving of them by the
buyer.120 However, the sale of the goods in this way can occur at the time
of them being shipped (i.e. the goods are sold by means of hand-over and
receiving of the “documents of title” in the moment when the affected
goods are in transit, e.g. loaded in a truck or a ship).
118
119
120
E.g. the bailor allows other person to use the deposited property (object) or he uses
it himself etc.
Sec. 601 of CC.
Ovečková, O.: Obchodný zákonník – Komentár (Commentary), Volume 2. Bratislava 2005, p. 277. It needs to be stressed here that this form of transfer of ownership
title being “transfer of disposition documents” is not explicitly governed by ComC
neither CC. It is only implied in Sec. 443 para (2) of ComC. See also p. 51 of this
Report.
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This particular case calls for a special statute (Sec. 460 of ComC), according to which, if goods are being shipped at the time of concluding an
agreement, the risk of damage to the goods passes to the buyer upon surrendering the goods to the first carrier (or forwarding agent). The foundation
to this rule lies in the fact that the state of goods is not easily ascertained
and, therefore, the moment of passing of the risk occurs before the moment
of performing the agreement, which is the hand-over of goods to the first
carrier.121
The passing of risk, when receiving goods from another person acting as a
seller, is regulated by a special statutory provision, being Sec. 456 of Com C.
Sec. 456 ComC. If a buyer is to receive goods from a person other than a seller,
the risk of damage to the goods passes to the buyer at the time set for delivery
of the goods, provided the buyer was allowed to handle the goods and that he /
she knew about this option. If the buyer is allowed to handle the goods, or he /
she only finds out about this option later, the risk then passes at the moment of
this option or when he / she learns about it.
The case in which this special rule applies is e.g. a situation where a buyer
is obliged to check the goods outside of the seller’s factory, such as at a
third-party location where the goods are being stored or sequestered, or at
the sender’s or carrier’s post-terminal, and the case in which the point of
arrival or the port of discharge is the seller’s point of delivery according to
the contract of sale.122
In the case of a distant delivery, the risk is actually borne by the buyer,
but he does not have to bear it for the whole lap of the shipping.
(a) If, according to a contract, the seller is obliged to hand the goods over
to a carrier at a designated point to be shipped the buyer, the risk passes
to the buyer with the hand-over to a carrier at a designated point. For
example, when, according to the contract, a domestic seller is obliged
to hand the goods over at Bratislava port to the Danubian shipping
company (the carrier) to be shipped to a Romanian buyer, then according to the Commercial Code, the risk passes to the buyer with the
hand-over of the goods to the carrier at Bratislava port. On the land
section of shipment from the seller’s factory to Bratislava port, the risk
of damage to goods is borne by the domestic seller.
(b) If the contract of sale includes a seller’s obligation to ship the goods
to the buyer, but the seller is not obliged to hand the goods over to a
carrier at a designated place, the risk of damage to the goods passes to
121
122
Ovečková, O.: Obchodný zákonník – Komentár (Commentary),Volume 2. Bratislava 2005, p. 280.
Ibid, p. 278. Also see Sec. 335 of ComC.
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the buyer at the time the goods are handed over to the first carrier to
ship to the point of destination. In this case, the buyer bears the risk
throughout the whole lap of the shipping.
In both cases, the passing of the risk of damage to goods is not influenced by
the fact that the seller handles the papers pertinent to the shipped goods;
these papers (e.g. shipping note, bill of lading, way bill) are handed-over to
a buyer at the point of destination, usually through the freighter or a bank
by paying the purchase price (bill of exchange, letter of credit).123
It is important to specially mention the rule of passing of risk in the
case of a generic movable. In this case, the risk of damage to goods cannot
pass to a buyer who has not received the goods, whilst the goods are not
yet clearly marked and differentiated for the purpose of the contract, which
may happen later mainly by marking the goods or the shipping documents
or specifying them in the report sent to the buyer.124 This condition cannot
be excluded by agreement of the parties to the contract.
123
124
Ibid, p. 279.
See Sec. 458, 459 of ComC. Also see Sec. 263 of ComC containing a list of mandatory provisions of ComC by which the contract parties cannot stipulate otherwise.
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Part III:
12.
Acquisition by accession, commixture, specification
12.1.
Accession relates to ownership acquired to everything additionally connected to the principal property. However, the acquisition of an ownership
right by so-called accession is not directly addressed by the Civil Code.
Despite the absence of legal regulation of accession, judicial practice
had to deal with it, e.g. in the case of reconstruction of a house (immovable) and acquisition of title to the movables in connection with property reconstruction. Unless the owner of the original construction and the
builder agreed otherwise, we should assume that the parts added to the
original construction come into the ownership of the owner of the original
principal construction (main property). Naturally, the builder has a legal
claim against the owner of the original construction for the unjustified
enrichment, which he / she achieved by construction evaluation.125
12.2.
Commixture and confusion
Similar to processing (see 12.3 below), commixture is when property of
different owners is mixed (comixtio) or otherwise combined (confusio).
However, the Civil Code does not address these cases. Considering their
content and objective, the closest regulated case is ownership acquisition
by processing. Therefore, for cases of commixture and confusion, regulations for processing should be applied, following analogiae legis.126
12.3.
Specification (processing)
The Civil Code includes legal regulations on acquiring the ownership right
by processing (specification) of foreign material. This regulation does not
relate to cases when, by means of a special contract (contract for work), the
125
126
R 29 / 1989.
Analogia legis is according to § 853 of Civil Code acceptable.
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contracting parties have agreed on the article being partly or fully produced
out of foreign material. The ownership of a property in this case is acquired
in a different way (see 4 above.). In case of a special modification (specification), we concern only processing of one or several foreign materials into a
new article and the contract does not specify how it is to be regarded.
The processor will become the owner depending on whether he / she
is in good faith or not. If someone in good faith processes someone else’s
material so that it becomes a new article, the person whose share in the
article is greater shall become its owner.127 Otherwise, if a person processes
someone else’s material, although he is aware that he is not the owner, the
owner may demand that such person return the material and restore it to
its previous condition. Where it is not feasible and reasonable to restore the
material to its previous condition, the court shall decide, taking into account all the circumstances, who shall be the owner of the article and what
compensation shall be given to the owner or the person who processed it,
if they fail to come to an agreement.128
When the processor is in good faith, which is the first case, the rule is
clear. The owner will be the person whose share in the newly produced
article is higher. In the case where their shares are equal and the parties fail
to come to an agreement, the court shall rule on this matter if a petition is
filed by either of them. The new owner however must compensate the other
owner in the amount by which the latter’s property is reduced.
Should the processor lack good faith about the fact that the processed
material belongs to him, the owner of the newly produced article is the
original owner (the owner of the processed material) who may apply for
delivering of the article and restoring it to its previous state, regardless of
his share in the newly created article. However, the processor’s bad faith
does not necessarily mean that he can not become the owner of the newly
produced article. There are two conditions, both of which must be fulfilled
in this case. The first is that a restoration of the processed article to its
previous state is not possible or, even though it may be possible, would be
economically and functionally purposeless. The second condition is that
bad faith processor was stated as the owner by a court decision, taking into
consideration all circumstances of the case.
13.
Rules of good faith acquisition
A is the owner of a movable. The movable is “transferred” by non-owner
B to the potential “good faith acquirer” C.
127
128
Sec. 135b (1) of Civil Code.
Sec. 135b (2) of Civil Code.
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The Slovak civil law does not recognize “good faith acquisition” in the case
of a transfer of an ownership right based on a contract. According to the
Civil Code, it is not in any case possible to acquire ownership from a transferor who lacks the right of disposition regarding the transferred property, as
a consequence of the rule “nemo plus iuris […]”. The absence of the right of
disposition of the property on the side of transferor therefore always results
in an absolute nullity of such a contract and disposition.
There are only two exceptions in the sphere of civil law regulation, as
stated in 5.1. of this report and they are:
(1) A case of good faith acquisition of the property from an illegitimate
heir to whom the inheritance was confirmed,129 and this situation is
not so much a case of transfer based on a contract, but a passing of
title on the basis of a “legal fact / incident” – the death of testator and
the results of the inheritance proceedings; and
(2) A case of a pledgee exercising his right of pledge in such a way that
he / she, as a non-owner, sells the pledge in a manner specified in the
pledge agreement, whereas by operation of law he acts on behalf of
the pledger – owner.130
“Good faith acquisition” of ownership title in the case of contract transfer
is not regulated by the Civil Code at all. Despite the absence of a legal
regulation, such an option is available (only) to subjects of commercial
relations under “commercial contract law”. In the case of “contract for
sale” in business relations (Sec. 409 et seq. of the CommC), the buyer can
acquire the ownership right even if the seller is not the owner of the goods
being sold under the contract for sale.131
Sec. 446 ComC. The buyer shall acquire the ownership right even if the seller
is not the owner of the goods being sold under the contract, unless at the time
when the buyer was supposed to acquire the ownership right, the buyer knew
that the seller was not the owner and thus was not authorised to dispose of the
goods and sell them.
129
130
131
Sec. 151m(1) and (6) of the Civil Code.
This is not the case of the civil code regulation of ‘purchase contract’ concluded
between subjects of Civil Law relations as natural persons or legal entities when not
carrying out any business activity. In the case of Civil Law purchase contract the
absence of the right of disposition on the side of seller always, without any exceptions, results in an absolute voidance of such a contract.
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This rule does not specify the cases that should be covered by it. It is clear
from the mere legal wording, “the seller is not the owner”, that it is not relevant for what reason B does not have an ownership right to the transferred
property; that is, whether B was never the owner or whether B’s right to
dispose had been avoided, terminated with a retroactive or ex nunc effect,
as well as in the case of double sale.
Neither is it relevant whether C as the acquirer has a status of consumer,
according to Sec. 54 (3) of Civil Code, since the statutes regarding consumer contracts do not contain any specific regulation of good faith acquisition.
For this reason, it is necessary to distinguish whether the contract of “consumer” purchase132 was concluded in accordance with the Civil Code (Sec.
588 et seq.) or the contracting parties have agreed upon governance by the
Commercial Code, pursuant to Sec. 262 para (1) of ComC,133 and hence the
purchase contract is regulated by the Commercial Code (Sec. 409 et seq.).
The principal distinction between these two regulations in this context lies,
as discussed (see 7.), in the potentiality of “good faith acquisition”.
The rule of good faith acquisition shall apply to “goods being sold under
contract” (see cited statute Sec. 446 above), which implies that the Commercial Code does not require any other characteristic of goods (e.g. if it
the case of dealing with stolen goods, lost goods, negotiable instruments –
or even money). The decisive criterion is the seller’s lack of right of disposal
for whatever reason. That means that this rule of good faith acquisition
shall always apply in those commercial relations based upon contract for
sale (if the requisite of good faith acquisition is fulfilled) when the seller is
neither the owner nor a person entitled to dispose of the goods (e.g. seller
is a thief or a finder).134
132
133
134
A consumer contract is any contract (and therefore also the contract for sale, concluded either in accordance with the CC or the ComC) without regard for the
legal form, which is concluded between the supplier and the consumer. A supplier
is a person, who acts under the object of his / her own commercial or other business
activity when concluding and fulfilling a consumer contract. A consumer is a person,
who does not act under the object of his / her commercial or other business activity
when concluding and fulfilling a consumer contract.
See footnote 132.
Seller can be the non-owner and therefore not allowed to dispose with an object
(e.g. a car) also from the reason that he purchased the car from e.g. thief and that
within civil-law relations (e.g. purchase contract concluded between two natural
persons and not related to any business activity). As in civil law regulation there
is not any possibility of good faith acquisition and therefore the buyer in this case
(even though he had been in good faith) has never acquired an ownership title to
the car. However, if he sold the car later on to e.g. a company limited and they agreed
the governance of the purchase contract by Commercial Code [Sec. 262 of ComC:
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Quality of good faith
Regarding the good faith of C, the rule cited in 13.1 is conceived with
respect to C’s knowledge about B not being the owner of the property (i.e.
C knew that B was not the owner), which directly affects the burden of
proof, which lies with the original owner A. In order for A to be successful in rei vindicatio proceedings, he / she has to demonstrate that C, at the
time of his / her acquisition of ownership right to a property, knew that B
was not its owner and, therefore, he / she is not entitled to dispose of the
property.
There is no rule of presumption of an acquirer’s good faith in cases of
doubt under the Commercial Code; however, we are of opinion that it is
reasonable to apply per analogiam the statutory presumption of a possessor’s
good faith and that it is supposed in cases of doubt that the possession is lawful
[Sec. 130 (1)]. The argumentation is based on the following provisions of
the Commercial Code and the Civil Code.
Sec. 1 (2) ComC. […] If any matters cannot be resolved using these statutes,
then they are resolved using the regulations of the civil law.
Sec. 853 (1) CC. Civil-law relationships, unless they are specifically regulated
either by this Code or another Act, shall be subject to the provisions of this
Code that regulate relationships closest to them in their object and purpose.
If we literally interpreted the rule stated in Sec. 446 of Com C, whilst using
negation, the object of good faith should only be C’s ignorance of the fact
that B is not the owner of the transferred property. However, according to
several authors good faith not only applies to the knowledge that B is not
the owner of the property, but at the same time to whether he / she could
have assumed in good faith that B is entitled to dispose of the property or
the goods.135
“Knowledge” in both cases is required at a time when the buyer is set
to acquire the ownership right. When this is exactly depends on the agreement of the contracting parties. When they fail to agree in this respect, it
is the moment of delivery of the property (traditio) to the acquirer C. As
for the standard of good faith, only actual knowledge about B not being the
owner of a property excludes good faith.
135
The parties may agree that relationships not explicitly listed in Sec. 261 shall be governed
by ComC], this company acquired an ownership title if it had been in good faith at
the time of entering into the contract for sale.
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The practice of the courts regarding “good faith” has until recently
concentrated on the cases of good faith of a possessor – prescriptor, in the
case of acquisitive prescription. However, these interpretative rules created
by courts could be applied again per analogiam to good faith acquisition
pursuant to Sec. 446 of ComC.136
14.
Acquisitive prescription of movables
The institution of prescription in the Slovak civil law renewed with Act
No. 131 / 1982 Coll. in effect 1 April 1982, which amended the Civil Code.
In the period of coming of the Civil Code into effect, 1 April 1964 to 31
March 1982, the Slovak civil law did not “recognize” the institute of prescription, although it was part of Slovak law until 1950 (during the existence of Hungarian customary laws), as well as after the re-enactment of the
first Czechoslovak Civil Code in 1950 (it was valid until 31.03.1964, when
it was substituted by the current Civil Code).
136
Whether an owner is in good faith has to be judged objectively, whilst bearing in
mind all circumstances; it is not enough to focus the evidence only on finding the
subjective ideas of the owner (S IV, p. 428). Good faith is the acquirer’s belief that
he / she is not acting unlawfully, when e.g. taking possession of a property. Therefore,
it is a state of mind, the subject’s inner conviction, which itself cannot be an object
of evidence. Such objects may be the realities of the outer world, through which the
inner conviction is acted out; thus they are circumstances that allow the acquirer
to become convinced of good faith that the property belongs to him / her. (Sec. 132
(1) of CC / (B5 / 86). The holder’s belief that the property belongs to him / her and
that he / she handled it as his / her own, must be supported by concrete circumstances,
from which we can conclude, that the holder’s conviction was permitted during the
whole holding period (R 8 / 91). To fulfil good faith, it is not enough, that the claimed
“right” to an immovable was exercised over a long term, without the owner of the
immovable preventing it to be exercised, or that it was exercised “for as long as one
can remember” by other citizens of a town (village) etc. The acquirer’s faith, that he /
she has the right to a real burden, and that he / she is not acting unlawfully must be
supported by a reason justifying this conviction and therefore the circumstances testifying the honesty of the acquirement (B 26 / 88). The owner’s claim that a property
belongs to him / her and that he / she treated it as his / her own, must be confirmed by
specific circumstances, which would allow us to judge, that the owner’s conviction
was justified all this time. The circumstances, which may prove the conclusion of
the existence of good faith, are as a rule circumstances regarding the legal cause of
acquiring a right and which testify the honesty of its acquiring. (C 573).
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Functions and requirements of acquisitive prescription
Acquisitive prescription (usucapio) is a special way of original acquisition of
ownership right, as well as other rights (e.g. easement), whose main function
in Slovak law is to offer the possessor a possibility to transform a long-term
state of rightful possession into an ownership right and, in that way, remove
the state of objective legal insecurity regarding ownership relations. The
legal regulation of acquisitive prescription in the Slovak Civil Code follows
the legal regulation of the institution of possession. It is very short and contained in the text of only one provision, being Sec. 134 of the Civil Code:
§ 134 CC. Usucapio (acquisitive prescription)
(1) The lawful possessor shall become the owner of the property if he keeps the
property in his possession for an uninterrupted period of three years in case of
a movable property and ten years in the case of immovable property.
(2) However, it is impossible to acquire ownership title to property that cannot
be the object of ownership, or to property that can only be owned by the state
or legal entities determined by the law.
(3) The period during which the legal predecessor held the property in his
lawful possession shall also be counted as part of the period of time pursuant
to subsection (1).
(4) The commencement and duration of the period of time laid down in subsection (1) shall be subject to the provisions on the running of the statute of
limitations (limitation period), as appropriate.
To acquire an ownership right by acquisitive prescription can only be
achieved by fulfilling the following rules:
(a) The possession has to concern an eligible object of acquisitive prescription. Legally this can only be a whole property (not a part of it),
or an ideal co-ownership share, as this is a share of the whole property that can be an object of ownership; exception being property as
objects of state ownership only, or legally appointed legal entities.137
Therefore, an object of acquisitive prescription can either be tangible
or intangible property.
(b) The possession has to be rightful.138 Ownership right can only and
solely be prescribed by a rightful possessor, i.e. one who justly treats
the property as his own and, taking into account all circumstances,
possesses the property in good faith.139 A detention only is not sufficient for prescription. Whether the owner is in good faith, considering all circumstances, needs to be evaluated objectively; if it comes to
137
138
139
Sec. 134 para (2) of Civil code.
See 2.2. of this Report.
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a disagreement, it is not enough to concentrate proof only to detect
the possessor’s subjective ideas.140 The claim of the possessor that the
property belongs to him, and that he treated it as his own, must be
supported by concrete circumstances from which it can be judged that
the possessor’s conviction was reasonable throughout the prescription
period.141 The eligibility of prescription needs to be studied not only
subjectively but also objectively with regard to all circumstances.
The decisive factor is whether the possessor, being careful in a normal measure that can be reasonably required with regard to circumstances, should have or could have doubts about whether the property
belongs to him.142 For example, the condition of good faith in prescription cannot be considered fulfilled, even though the possessor (usucapient) claims that the property belongs to him, if the truth reveals that
the legal predecessor had used the property based on a rental contract,
i.e. he was the detentor from the start and in the duration of the prescription period the acquirer had found out.
On the contrary, the condition of good faith is fulfilled in the case
of, e.g. an earlier buyer using the property at issue continuously during
the whole prescription period unaware that the contract of purchase
was absolutely invalid and that, based on a later contract of purchase,
this property was acquired by somebody else. The earlier buyer’s prescription period was passing properly and after the expiry he gained
an ownership right to the property in issue.143 It is clear from this
situation, even though the statutory provision does not directly contain it, that the condition of good faith must be present when acquiring possession and all the time until the end of prescription period.
In any case, it is not entirely possible to specify whether the prescription is rightful or not. These doubts about permission are solved
by the statutory presumption of good faith and that it is supposed in
doubtful cases that the possession is lawful.144 The justifiability of this
legal presumption stems from the knowledge that proof of the owner’s
state of mind is only created indirectly, by a judgment of other proofs,
and if in doubt it is better from the procedural point of view to start
with the good faith of the owner and to pass the burden of proof on to
the person who objects to the legitimacy of the prescription.145
(c) The acquisitive prescription has to be continual throughout the legally
designated period.
140
141
142
143
144
See Z IV (p. 428 subsec. 3).
See R 8 / 1991.
See V 5 / 1989.
Compare R 27 / 1999.
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427
The period of acquisitive prescription145
14.2.1. General
The prescription period for movable objects is three years and ten years
for immovables.146 The passing of this period includes the period of possession in good faith of the legal predecessor of the owner.147 Regarding the
passing of prescription periods, it needs to be stressed that the Civil Code
does not contain any particular provision that would define suspension,
stoppage or non-commencement of the prescription period; therefore, the
general statutes applicable for prescription of claims, pursuant to Sec. 134
para (4) of CC, are used. Neither specific rules nor examples are provided
by applicable law or the respective judicature.
§ 134 (4) CC. The commencement and duration of the period of time laid
down in subsection (1) shall be subject to the provisions on the running of the
statute of limitations (limitation period), as appropriate.
14.2.2. Specific rules on suspension and renewal of the period
Specific rules are, mainly by analogous application, Sec. 112 and Sec. 114
of CC on suspension of the limitation period during a judicial or similar
proceeding on the creditor’s right and on “non-commencement” and suspension of limitation period’s running between statutory representatives
and minors and between husband and wife.
(a)
Suspension in case of judicial or similar proceedings
§ 112 CC. Where within the limitation period, the creditor asserts his right in
court or before another competent authority and duly continues in the initiated
proceedings, the limitation period shall not run from the day of asserting such
right for the duration of the proceeding […]
An example of this would be if an original owner brought a claim contesting possession of property by somebody and would continue fully in the
145
146
147
Plank, K. et al.: Občianske právo s vysvetlivkami. Iura Edition, Bratislava, p. 182.
Sec. 134 (1) of CC.
Sec. 134 (3) of CC.
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started process, the prescription period would then not run from the moment when the claim was filed.148
A contrario when the owner, for instance, either dismissed his asserted
rei vindicatio claim or has no success, meaning that the lawful possessor –
prescriptor prevails. In this situation, it is as though the proceedings have
never started. It is presumed that the limitations have never been suspended and were running continuously.149 Thus if a possessor successfully
resists a taking of property vis-á-vis an owner, meaning a court rules in a
quasi vindicatio proceedings in favour of possessor – prescriptor, it would not
be considered a suspension in the continuity.150
(b)
Running of period between statutory representatives
and minors and between husband and wife
§ 114 CC. As to rights between statutory representatives, on the one hand,
and minors and other represented persons, on the other hand, the limitation
period shall neither start to run nor run, except where interest and recurrent
payments are involved. The same shall apply to rights between husband and
wife.
In accordance with the above-cited provision, interpreted per analogiam
for the case of running acquisitive prescription period between parents or
other statutory representatives and minors, this period shall neither start
to run nor run. The same suspension of the running of the prescription period or even of its start shall apply for husband and wife (however only for
married spouses). The reasoning for the suspension of the commencement
of the running prescription period lies in the existence of the relationship between concerned people and, therefore, in the protection of their
interests.151
148
149
150
151
Lazar et al.: Občianske právo hmotné, Volume 1. Bratislava, 2006, p. 431.
‘The presumption of continuous possession’ is not explicitly regulated in CC however it comes up per analogiam and through wider interpretation of Sec. 112 of CC.
This presumption shall be applied e.g. in case that plaintiff claiming to be an owner
does not duly carry on in initiated proceedings against possessor (plaintiff withdraws his claim). This interpretation has been adjudicated for the case of suspension
of running of the statute-barred period, which is also applied as appropriate on the
cases of running of prescription period pursuant to Sec. 134 para (4) of CC (See R
3 / 2001).
Fiala, J., Holub, M., Bičovský, J.: Občanské právo. Linde, Prague 2006, p. 191.
Compare Plank, K.: Občanské právo s vysvetlivkami. Iura Edition, Bratislava 1996,
1997, p. 144.
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429
Termination in the running of prescription period
A termination in the running of the legally prescribed prescription period
will occur in case of the possessor discovering that property does not belong to him. From that moment, there will be a loss of good faith and the
possessor will become an unlawful possessor, i.e. a possessor not eligible
to prescribe the property into his ownership right. If, after stopping the
running of prescription period, it comes to a renewal of good faith, the
running of the original prescription period will not be renewed, but a new
prescription period will run.152
14.3.
Consequences of acquisitive prescription
Judging by the function of an acquisitive prescription, its direct consequence is the acquisition of the ownership of the property, which is the
object of prescription, on the date of the prescription period expiry, which,
as stated, is three years for movables. There is no need for any additional
constitutive or, in the case of movables, declaratory decision of the court
or any other body confirming the acquisition of ownership right by the
prescriptor (usucapient).
That means that, e.g. in the case of a rei vindicatio law suit, the prescriptor would defend himself by prescription objection, which would mean,
that the previous owner had lost his ownership right on the day of the
expiry of prescription period. In the court, the original owner would act
as the plaintiff without active material capacity to sue, which would result
in failure in the law suit. A similar situation would occur in the dispute
of determining the ownership right, i.e. determining, whether there is an
ownership right to a property or not.
Similarly, the original owner would be unsuccessful in a possible law
suit for the non-contractual liability for damage or in the dispute over an
unjustified enrichment. In neither case are the material (substantive) law
requirements fulfilled. “Illegality” is absent in the case of non-contractual
liability on the acquirer’s side, since the prescription was lawful and fully
based on the law. Even though the property of the original owner has reduced as a consequence of prescription, this reduction is not considered to
be damage, according to the general statute Sec. 420 of Civil Code, which
requires an incurred damage by a “breach of legal obligation”.
If the original owner claims unjustified enrichment, he would have to
prove not only the existence of one of the legal presumptions (performance
of an act for which there was no legal reason, performance of an act based
152
Fiala, J., Holub, M., Bičovský, J.: Civil Code. Linde, Prague 2006, p. 191.
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on a void a legal act, or performance in respect of legal grounds that did
not occur),153 but also the non-good faith of the acquirer’s prescription,
i.e. that the acquirer knew or should have known about these reasons and
therefore could not be a good-faith possessor. For example, he knew that
although he has the object of his prescription in his factual power based
on a contract of purchase, the seller has legally withdrawn. In such a case,
the reason for fulfilling the contract has ceased and an obligation has arisen
for the acquirer, as a buyer, to return the object of the prescription as an
unjustified enrichment to the original owner.
A different situation would be the case if the owner – buyer would never
learn about the withdrawal by the seller, e.g. because he lived abroad and
throughout the whole prescription period had been using the property as
his own. It is clear, that the key notion here is bona fides of the acquirer,
which needs to meet further qualities mentioned in 14.1.
14.4.
Prescription of ownership
§ 100 (2) CC. All property rights may become statute-barred with the exception of the right of ownership. The provision of section 105 is not thereby
affected. (…)
§ 105 CC. As regards the entitled (rightful) heir’s right to being tendered his
inheritance (Sec. 485), the limitation period starts to run from the day when a
decision (ruling) on such inheritance proceedings comes into effect.
On the basis of an applicable legal regulation in the Slovak Republic, all
property rights may be statute-barred, with the exceptions according to Sec.
100 para (2), (3) of Civil Code. One such exception is the “non-limitation”
of ownership, and this is with the exception of a so-called “entitled” heir
claiming ownership vis-á-vis a sham heir.154 The right of the real owner –
entitled heir to the tendering of inheritance is statute-barred by the expiry
of the limitation period from the day the inheritance proceedings ended
and became effective.
The right to terminate a common or a joint ownership is not statutebarred, as these rights are regarded as the exercise of the ownership right.
However it is possible to lose the ownership right by somebody else acquiring it ipso iure by prescription.155
153
154
155
Sec. 105 in relation with Sec. 485 of CC.
Plank, K. et al.: Občianske právo s vysvetlivkami. Iura Edition, Bratislava, p. 114.
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15.
431
Other forms of original acquisition
Slovak laws do not recognize “res nullius” yet and, accordingly, nor a separate acquisition system vested in appropriating such a property by one who
takes possession of it first (occupation).
15.1.
Finding of lost, abandoned or hidden property
Neither does the Civil Code deal with the matter of loss or abandonment
by the owner; on the contrary – it only regulates the finding of lost, hidden or abandoned property. In most cases, one cannot detect, by property
alone, whether it has been lost or abandoned, unless the finder himself was
a witness to its loss or abandonment. In certain circumstances, the situation
could be different with hidden property. For example, it could be hidden by
the owner on purpose in a place that was hard to find or hardly accessible
to anyone but the owner, thus being protected against any form of danger.
§ 135 CC.
(1) A person who finds lost property must return it to the owner. Where its
owner is unknown, the finder must hand the property over to the competent
state authority. If the owner does not claim the lost property within one year of
its delivery to the state authority, ownership title to the property shall devolve
upon the state.
(2) The finder has the right to reimbursement of his necessary expenses and to a
finder’s reward in the amount of ten percent of the value of the property found.
Other statutory provisions may vary the entitlement of the person who found
or reported the (lost) property.
(3) The provisions of subsections (1) and (2) shall apply as appropriate to hidden property, if the owner is unknown, and to property that is abandoned.
15.1.1. Lost property
The loss of a property, apart from abandonment of property, that lies in
volitional behaviour of the subject is a spontaneous occurrence causing
the loss. It does not eo ipso, however, change the ownership subject. More
conditions need to be fulfilled.
If someone finds property, he is obliged to return it to the owner. If the
owner is not known, the finder must hand the property over to a competent
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state authority (public authority body).156 If the owner does not claim the
lost property within one year of its delivery to the state authority, ownership
title to the property shall devolve upon the state. The owner can prevent
the loss of his property by reclaiming it (perhaps at the town or village authority in the area where the loss probably occurred). If the finder does not
return the found property to a state authority or to a public administration
body, he will become liable ex unjust enrichment, according to Sec. 451 of
CC, which contains the legal obligation of the finder to return this unjust
enrichment. The finder is also motivated to return or hand the property in
by a reimbursement of the necessary expenses and by a finder’s reward of
ten percent of the value of the property found.
15.1.2. Hidden property
A similar legal system as with lost property is applicable to property hidden (however, only on the assumption, that the owner is not known). The
notional sign of the finding of hidden property is that the owner is not
known. If, regarding hidden property, the owner was known, it must be
returned to him. However, the finder is not obliged to look for the owner
of the property. It is not relevant when the property was hidden, whether it
was only recently or many centuries ago. In practise, it means property e.g.
buried in the ground, built into a wall, etc. With some hidden property, it
is not possible to determine whether it was hidden, abandoned or deposited
and then forgotten (e.g. property found among others in an abandoned
building, etc.)
A finding in the sense of this section of the Civil Code would be an
archaeological finding. In this case, however, specific statutes burden the
finder with specific obligations, which we will not pursue due to the nature
of this report. In summary, the finder of hidden property, as well as the
finder of a lost property, is obliged to return the found property to a state
authority; and if the owner does not claim it within a year, the ownership
right passes to the state.
156
The Civil Code does not deal with the question of whether, due to e.g. the character
of the found property (escaped animals, food, etc.), the state authority is obliged to
take such a property from the finder; or what measures should the finder take, if this
authority rejects to take the found property. It does not oblige the finder to keep the
property or to take care of it.
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433
Acquisition of natural fruits (separation)
§ 135a CC. Any accretion to a property, even if it is severed from the principal
object, shall belong to the owner of the property.
The owner of a property is also the owner of its accretions, which is stated
directly in the right of ownership (Sec. 123). One of the owner’s partial
rights is the right of frui (ius fruendi). The civil law regulation of acquiring the ownership right by accretion stems from the rule that the owner is
entitled to the accretions and benefits of fruitful property that come with
it; not only when they are not separated but also when the separation from
the fruitful main object occurs. They then become an independent object
of civil law relations and, thus, of the ownership right too. They have the
form either as fructus naturales (animal young, crop on the land, fruit of the
trees), or as fructus civiles (interest from financial deposits). However this
rule shall apply only to fructus naturales.157
On the basis of a contract, the owner can agree with another person
that the accretions of the property will be acquired by the lessee, or the
borrower, etc., to whom the object was handed-over to use.
157
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Part IV:
16.
Rules on reservation of title
The institution of reservation of title has a securing function for the payment of the purchase price for a movable. The Civil Code enables the
contracting parties to come to an agreement that the buyer shall become
the owner only after payment of the purchasing price.
§ 601 CC. Reservation of title
If ownership title to property that has been sold is to pass to the buyer only
after payment of the price, this reservation must be agreed in writing. Unless
the contract implies otherwise, the risk of accidental destruction or accidental
impairment of the property shall pass to the buyer when he takes delivery of
the property.
Although the contract of sale is informal, the agreement of reservation of
title must be agreed in writing or it would be void.158 The delivery of goods
by the buyer at the conclusion of a contract of sale with reservation of title,
on account of the section of the Civil Code cited above, does not establish
the ownership right for the buyer to delivered goods, rather the goods are
confined to his care for an agreed purpose until the time of full agreed
price payment. If, e.g. a buyer had sold such goods, despite not having paid
the full agreed price, he / she causes the seller damage, which according to
applicable judicature however does not equal the rest of the unpaid purchase price (if a part of it had been paid before), but rather equals the full
extent of the price of the delivered property.159 This can also be considered
a criminal offence – fraud,
If the buyer fails to fulfil the purchase price obligation, the seller shall
own all the tools of protection belonging to the owner of property. The
statute concerning the protection of ownership does not object to the seller
making a claim for his right to the payment of the purchase price. Therefore, the nature of this obligation suggests that the right of choice between
the protection offered to the owner and the right to the payment of the
purchase price is with the seller. However, he cannot claim both rights suc158
159
R 2 / 2002.
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cessfully at the same time. A consequence of the reservation of ownership
may also be the case that, until the transfer of ownership to the buyer, the
property cannot be subject to the execution of ruling, or to being listed in
a bankruptcy estate, which is often a peculiarly important consequence.
In the case of insolvency proceedings against the buyer, the seller, as an
owner of a property, can file a legal action excluding the property from the
estate register.
17.
Abandonment
Slovak civil law theory distinguishes between an absolute cessation and
a relative cessation of an ownership right. A cessation of an ownership
right to certain property, when the ownership right of the same property is
acquired by another, is the “relative” ceasing of ownership right. An ownership right can also cease when nobody acquires the ownership of the same
property, because the property will cease on its own (it could be consumed
or destructed). This is an “absolute” ceasing of ownership right.160
The loss of an ownership right does not have to mean it ceases in every
case. For example, the loss of an ownership right by one person, and its
simultaneous acquisition by another, does not mean the ownership right
ceases, but rather it merely means a change of the person of the owner. That
is why cases of relative ceasing of the ownership right are identical to the
loss of an ownership right and the notion of ceasing of an ownership right is
similar in content to the absolute expiry of an ownership right. Following
the terminology used above and using the basis of legal regulation de lege
lata in the Civil Code, we can distinguish among cases of loss of ownership
right according to the legal facts that initiate it:
1. Loss of ownership right caused by an act of law:
a. contractual transfer of ownership right
b. abandonment of property
2. Loss of ownership caused by an ‘involuntary’ fact:
a. death of the owner
b. loss of a property
c. expiry of prescription period
3. Loss of ownership right based on a statutory ruling of state authority
The only legal “involuntary” fact causing the ceasing of ownership right in
the sense of an absolute cessation of ownership right is that which occurs
according to an applicable law.
160
Lazar, J.: Základy občianskeho práva hmotného. 1. Zväzok. Iura edition, Bratislava
2000, p. 187.
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“Derelictio”, or the abandonment of property, is a surrender of possession
of property (with the effect of losing ownership).161 In Roman law, abandoned property became property of nobody (res nullius) and was therefore
eligible to become an object of occupation or possession.162 It was a loss of
possession with the effect of loss of ownership right, which was signified by a
lack of both elements of the possession; therefore, it was a loss of possession
corpore et animo. The animus possidendi loss was evident mainly in the lack
of care for a property, in the sense of not taking further interest in it.
Taking the current Slovak civil regulation of abandonment of property
into account, it is important to see that the consequence of abandonment
in Roman law was not only a loss, but the ceasing of an ownership right
to it. As a consequence of this act of law, the property became property of
nobody – res nullius, thus a potential object of occupation. The ceasing of
ownership right to the property as a consequence of a unilateral, legally
relevant expression of will – i.e. abandonment – occurred directly after the
expression of will, because, and not only because, Roman law recognized
the institution of res nullius.
However, it is not so in Slovak law and the legal consequence of abandonment is not the ceasing of ownership, but only its loss and its direct
acquisition by another subject, which in the sense of Sec. 135 of Civil
Code, is the state. In comparison with a loss of property, it is not a spontaneous occurrence, but a unilateral act of law, which has to carry all the
characteristics prescribed by law to be considered a valid act of law.163 The
Civil Code punishes the failure to observe the legally prescribed form by
an absolute invalidity.164
At the same time, the Civil Code does not prescribe any concrete form
for abandonment. It is therefore possible to abandon movable property in
any way that does not raise a doubt as to the participant’s expression of
intent.165 It is not possible to presume animus derelinquendi; however, it has
to be de facto expressed. If the reality is not reported by either the owner or
his legal successors, this cannot be identified as an expression of will not to
be its owner according to applicable laws.
The institution of the presumption of abandoning property is not recognized by Slovak laws. The treatment of abandoned property follows adequately Sec. 135 (1) of the Civil Code – last sentence, according to which
the abandoned property will revert back to state ownership. Judicature
specifies further that abandoned property revert to state ownership at the
161
162
163
164
165
Rebro, K.: Latinské právnické výrazy a výroky. Iura Edition, Bratislava 1995, p. 94.
Rebro, K. – Blaho, P.: Rímske právo. Manz, Bratislava 1997, p. 224.
R 1 / 1979.
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moment of actual abandonment by its owner, by the abandonment itself. In
such cases, the state has the status of owner and can solicit a return by an
action against anyone who retains the abandoned property. According to
some authors, it is not abandonment when an owner has a certain obligation towards the property, e.g. to tow away the wreck of his vehicle.166
18.
Transfer rules for co-ownership
The Slovak Civil Code distinguishes between two forms of co-ownership
regarding a common object (two or more subjects are the bearers of ownership of the same object): common ownership and joint ownership. Joint
ownership is only applicable to spouses, whilst amongst others it is common
ownership, which can also be formed between spouses. The main difference
between the two forms lies in the formulation of the share, which is determined only in a tenancy-in-common co-ownership. In principle, a tenant
in common has proprietary rights to the entire object, which are limited by
the proprietary rights of the other co-owner of the same object.
18.1.
Common ownership
The matter of common ownership lies in the same property belonging to
two or more co-owners and the participation of each of them in the coownership relationship is determined by their individual shares. A share
indicates the scale of each co-owner’s rights and duties stemming from the
co-ownership of the common object. The individual shares are expressed by
a certain fraction, which is the so-called ideal share. A co-ownership share
is not to be understood as a real piece of a common property. Therefore, a
co-owner of a movable or immovable object cannot transfer a real piece of
a common object, accounting for his co-ownership share, to another.
The level of co-ownership shares can be determined mainly by an act
of law (either bilateral, i.e. an agreement between the co-owners, or unilateral, i.e. testament), a legal enactment, or by a decision of the court. If
the level of co-ownership shares is not determined this way, then statutory
presumption becomes the rule, whereby all the shares of all the partners are
equal. This applies not only to a transfer, but to the passage of ownership
to the created object.167 Due to the fact that one or more subjects are the
bearers of co-ownership rights and duties in a co-ownership relationship,
the Civil Code establishes their rights and duties in a mutual relationship
166
167
Svoboda, J. et al.: Občiansky zákonník. Eurounion, Bratislava 1998, p. 173.
Lazar, J. et al.: Občianske právo. Bratislava, 2006, p. 443.
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in the management of the common property, as well as the rights and duties
of co-owners in relation to third parties, which are relevant to the whole
property and the ability to manage one’s own co-ownership share.
The Civil Code designates legal relationship of all co-owners to third
parties in relation to the whole property in such a way that the legal acts
regarding common property establish solidary rights (sometimes termed
“joint and several”) and duties of the co-owners. In the relationship among
the co-owners themselves, the ratio of their share size is decisive. The majority principle comes into effect, according to which, in the management
of a common property, the decisive factor is the majority’s stance counted
according to the size of the shares (not according to the number of coowners). In the case of equal votes, or if the majority of votes was not
reached and all the co-owners have not come to an agreement, the court
will decide on the proposal of any of the co-owners. The court may make
a decision even upon the request of the outvoted co-owners. They have a
right to contest a decision of the majority if it effects an important change
to the common property.168
The co-owner’s contractual freedom is limited when dealing with a coowner’s share, and a free transfer of a share is allowed only to relatives.169 If
one of the co-owners wants to assign their co-ownership share to other persons, first of all they have to offer their share to other co-owners. Therefore,
there is a statutory right of pre-emption among the co-owners. If the coowners can not come to an agreement regarding the execution of the right
of pre-emption, they have the right to buy a share with the same portion or
by ratio according to the size of their shares. However, this regulation only
applies to the contractual transfer (including donation), it does not apply
to the passing of the share by inheritance.170 The right of pre-emption is
subject to a three year statute-barred period.
There can be an annulment and settlement of the co-owners on the
basis of an agreement among co-owners, which would deal with the whole
co-ownership object. If there was no written form of the co-ownership
annulment or the mutual settlement (it is only compulsory in the case of
an immovable), each of the co-owners is obliged to issue a confirmation
about the settlement to the others. If there is be no agreement among the
co-owners, the court will decide about the annulment of co-ownership and
the settlement for the co-owners, taking into account the size of the shares
and the expedient use of the object. If a real division of the object according
to the level of co-ownership shares and the possibility of expedient use of
the object is not possible, the court will order an adequate substitute to one
168
169
170
See legal definition of notion “blizke osoby” (relatives) in Sec. 116 of CC.
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or more of the co-owners. It will take its expedient use into account. It can
also order its sale and the sale proceeds to be divided among the co-owners
according to their shares.
18.2.
Joint ownership
The Civil Code regulates the ownership rights of spouses to property acquired during their marriage in the form of joint ownership. Joint ownership is characterised by the spouses not having a quantitatively determined
share in the ownership right, rather both spouses are “exclusive” owners
of the whole property in 1 / 1 ratio. Therefore, non-sharing is one of the
notional signs of this co-ownership. Only spouses and not other people can
be the subjects of joint ownership. Co-ownership relationships between
persons can only be in the form of a common ownership.
When defining the scale of joint ownership, the legislator proposed that
property acquired by both spouses needs to belong to the possessing group.
In accordance with this notion, the law allows joint ownership only to
property acquired by one of the spouses, or both of them, during the marriage. Property acquired as an inheritance or gift does not belong to joint
ownership; neither does property for the personal use; the execution of a
job of one of the spouses; nor property of one of the spouses who possessed
it before marriage, had it confiscated by the state and then returned to him /
her during the marriage as the original owner or as a legal successor of the
original owner, according to the rules of restitution. Therefore, to determine the scope of joint ownership of spouses, the law looks at three criteria:
(a) time when the property was acquired, (b) way in which the property was
acquired, (c) purpose for which the property is used.171
(a) Time. When the acquisition of the possession took place is decisive for
the creation of joint ownership. The legal amendment is set out so that
property acquired by each of the spouses before the marriage does not
belong in joint ownership, even if it might be used by both spouses.
It remains exclusively / solely owned by the spouse who acquired it. If
spouses have acquired property together, based on an agreement before
the marriage, then it may fall under the joint ownership.
If a doubt arises about the ownership of property acquired in exchange for other property, or from the profit of property in exclusive
ownership of one of the spouses, then this issue is clarified by the law
practise in the sense that this property continues to be in the sole
ownership of one spouse, because it is a case of a transformation of
171
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the same possession. If, however, any amount of means from the joint
ownership is used to acquire the new property, then the whole new
property will fall under the joint ownership. It is different when it
comes to the yields, uses and additions of the property in sole ownership of one spouse. The legal practise has taken an unambiguous
stance on this: they will belong to the joint ownership of the spouses,
no matter whether the property itself is in the sole ownership of one
of the spouses or in a joint ownership.
(b) Way. Considering the way in which property was acquired, the Civil
Code excludes certain property from joint ownership, even if one of
the spouses acquired it in the course of the marriage. Inherited property does not belong in joint ownership. If only one of the spouses is
subject to inheritance, he / she will acquire the inheritance into sole
ownership. If both of the spouses were subject to inheritance, the acquired inheritance will fall under their co-ownership. Furthermore,
property such as gifts does not fall under joint ownership and it does
not matter whether the gift was presented to one of the spouses or to
both. In the case of only one of the spouses being the recipient of a
gift, it will belong to his / hers sole ownership. If both of the spouses
received the gift together, it will fall under their co-ownership.
In some cases doubts may arise as whether one or both of the
spouses were presented with the gift (mainly in the case of wedding
gifts). In such cases, the intention of the giver will be decisive in
the sense of whether he was intending the gift for only one of the
spouse or both. In most cases, the intention will be judged by circumstances under which the gift was presented. The relationship
between the donor and donee needs to be looked upon at the same
time. It cannot be right to judge the matter of the donee being only
one of the spouses, or both together, based on the nature of the property and, therefore, the intention of the donor is conclusive.
The question of presenting a gift between the spouses needs to
be addressed here. The legal practise rejects the matter of one of
the spouses donating property from the joint ownership to the other
spouse. It has come to a conclusion that the nature of joint ownership
itself prevents one of the spouses, who is not a sole owner of property,
to donate common property to the other spouse, who is also a joint
owner of the property.
(c) Purpose. In the case of the purpose of property, that property intended
for personal use or property used in the execution of a job of one of the
spouses, does not belong in joint ownership of the spouses.172
172
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The legal relationship of joint owners to third parties is regulated according
to the disposal acts of spouses. “Usual” matters regarding common property
may be dealt with by either of the spouses. In other cases, the consent of
both the spouses is needed – otherwise the legal act would be invalid. The
law does not specify which matters are considered “usual”. This needs to be
assessed in every case individually. In concordance with the legal practise,
it is important to take the nature of property into account, mainly its value
as well as the purpose it is going to be used for. Therefore the legal practise
considers usual things to be shopping for groceries, casual clothing, objects
for the personal use of the spouses’ children – as long as the cost is covered
by joint means, fuel costs and general repairs in a household, etc.
To the contrary, a donation of an immovable to a third party without
a legal reason, or a donation of a significant sum, is not considered a usual
matter. It is important to stress that the law requires the consent of the
other spouse and not a common act of both of the spouses, when dealing
with other, not usual things. The form of this consent is not specifically
prescribed; therefore, a conclusive consent is enough. The legal act regarding a matter, other than usual, carried out by one of the spouses without
the consent of the other, is null. The Civil Code sanctions this absence
of consent with relative nullity. That means that the offended spouse (the
one without whose consent the legal act was carried out) has the possibility
to call for the nullity of the legal act, subject to the general statute-barred
period. If he / she does not enforce this authority within the given period,
the legal act will result in a valid legal act.
The Civil Code deals specifically with the question of an individual
debt of one of the spouses that arose in the course of the marriage. With
regard to the spouses’ joint ownership, the law allows the claim of the creditor at the execution of a judgement to be settled from the property of the
joint ownership. However, the execution of a judgement cannot be carried
out by a deduction from wages of the spouse who is not a debtor.
19.
Further rules applying to unspecified goods
19.1.
General aspects
As it has been discussed (see 3.1), Slovak Civil Code does not provide
any legal definition of “property” (vec). Nor does it provide any detailed
classification of property as civil law objects in its general part – apart from
making a distinction between movables and immovables (Sec. 119 of CC)
and making a distinction among the terms “principal” property, “constituent” part, and “accessories” (Sec. 120, 121 of CC). However, there is one
particular provision, Sec. 151d of CC, which regulates subjects of pledge.
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In this provision the Civil Code explicitly distinguishes among the notions
of “object”, “set of objects”, “enterprise (company)” and “bulk of objects”,
and provides that “[…] A subject of pledge can be either a set of property, an
enterprise or its parts, or other bulk property.”
In practise, it is necessary for the application of rules of right of pledge to
make a distinction between the notions “set of objects” and “bulk of objects”.
Regarding a “set of objects”, one could say that this is when similar objects
belong together based upon their nature and common use (e.g. silver set, set
of books in library, collection of postage stamps etc.) On the other hand,
there is a “bulk of objects” when the objects are different in kind or nature as
determined by their use. Pursuant to some authors, the decisive criterion for
classification of a group of objects as either “set” or “bulk” could be their location.173 A “bulk of objects” is e.g. the various goods in stores or warehouses,
or a collection of various historical objects stored in a museum.
19.2.
Transfer of an “enterprise” as an unspecified “set”
of various assets
An example of the transfer of an ownership right to unspecified goods could
be the transfer of a group of objects in the case of a “contract of sale of an
enterprise” pursuant to Sec. 476 et seq. of ComC. As it comes from the
above-cited Sec. 151d of CC, one could say (when literally interpreted)
that the enterprise is classified as a bulk of different objects belonging to the
enterprise. It must be stressed here that the notion of “the enterprise” also
includes other rights and other assets along with movable or immovable
assets, which serve for the operation of the enterprise in sale.
It is of relevance to the purpose of this report that the object of the
contract of sale of an enterprise is not individual property, individual rights
or other assets, but the enterprise as a whole, highlighted in Sec. 5 of ComC
as a set174 of tangible, as well as personal and intangible, components of
business. It is necessary to include property (e.g. buildings, machines and
equipment, raw materials, goods, vehicles, etc.) in the tangible components. An object of the contract is not an enterprise as a “rem” in its legal
meaning (an enterprise cannot be listed in any category stated in statute
Sec. 118 of CC), but an enterprise as a complex set of objects, rights and
other assets used for its operation.
173
174
Plank, K. et al.: Občianske právo s vysvetlivkami. Bratislava, 1996, 1997, p. 268a.
Pursuant to our opinion notion of “set” used in this case is not appropriate as it
seems to be more combination of sets and bulk of various assets, rights and other
components of business. However we use only term “set” in further text regarding
rules for transfer of enterprise to make it clearer.
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Identification of an “enterprise” to be transferred
As concerns the demand for identification of individual objects belonging to the set of objects transferred on the basis of the contract of sale of
an enterprise, the professional practise is that property used in running
a company does not have to be individualized in the contract of sale of
company, and that it is enough to mark the company being sold distinctly
enough.
According to this opinion, the concrete specification of property, as
well as rights and other assets used in the operation of the enterprise being
transferred to the buyer, is not a condition for the validity of the contract
for sale of the enterprise.175 It is clear that part of the components of the
enterprise is made up at the time of concluding the agreement and cannot
be individually marked (raw material, goods, etc.) It is advised, however,
in the interest of peace of the contracting parties, that the object of sale is
described distinctly enough in the contract of sale of the enterprise. The
specification of property, rights and other assets used in the operation of
the enterprise is usually an attachment to the contract. According to the
circumstances of the case, the bases of accounting may be used or possibly
also cited.176
On the day the contract of sale of the enterprise comes into effect, by
law all the rights and obligations concerning the enterprise pass to the
buyer, regardless of the legal reason for their creation, contents, payment,
etc. This is mainly the case of a transfer of the ownership right for property
belonging to the seller and used in the enterprises’ operation. In these
relationships, the buyer enters the role previously occupied by the seller,
without any further written agreements.
20.
Consequences of restitution of the movable
to the owner
As already discussed in part 2.2 of this report, if the property is surrendered
and reverts to the owner or, in general, to a person who proved to have a
stronger title to the property (in the case of good-faith possession it may
only be the ownership right and title to the property), the criterion of
“lawfulness of possessor” (i.e. whether the possessor is lawful or unlawful)
shall become decisive.
175
176
Ovečková, O. et al.: Obchodný zákonník – Komentár (Comentary). Bratislava,
2005, p. 292.
Ibid, p. 293.
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20.1.
Entitlement to benefits (“fruits”) of the movable
Fruits resulting from movable property become an independent object of
civil law relations and thus of the ownership right, only when separated
from the fruitful property. Until this moment they follow “the legal fate” of
the principal object as a part of it. According to civil law theory, the benefits of the property may have the form either as fructus naturales (animal
young, crop on the land, fruit of the trees), or as fructus civiles (interest from
financial deposits).177
The lawful possessor (good faith possessor) keeps using the property as
his own, truly believing that the property really belongs to him. Therefore,
when it comes to the relationship between him as good-faith possessor and
owner to whom the property is to be reverted, the good-faith possessor shall
deliver the property itself, but retain the fruits, yields and benefits derived
there from because he is entitled to such fruits, yields and benefits to the
same extent as the owner.178
The unlawful possessor (bad faith possessor) however does not have any
rights enjoyed by the owner. He is liable towards the owner for any detriment caused by the unlawful possession and thus takes responsibility for any
devaluation or deterioration of it.179 He is furthermore obliged to surrender
the property to the owner together with its fruits, yields and benefits, as he
is not entitled thereto. The Civil Code however does not explicitly regulate
in any way whether the unlawful possessor has a duty to collect the fruits
of the property or not. In this case, it is the author’s opinion that a wider
interpretation of the rule shall be applied as the unlawful possessor takes
all responsibility for “any detriment” and not only for actual damage of the
fruitful property and, furthermore, he has a duty to revert the fruits, yields
and benefits. If he has not collected the fruits of the unlawfully possessed
property and, therefore, is not able to surrender them along with the property, he is obliged to compensate the owner for them.
20.2.
In the case of a bad faith possessor, the responsibility for loss or deterioration of a movable is regulated as a liability for damage caused by unlawful
possession, under the Civil Code. The unlawful (bad faith) possessor is
obliged to compensate the owner for any damage caused by unlawful pos-
177
178
179
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session.180 For the liability for the damage to occur, no culpability is needed,
even though it does exist in most cases.181 Therefore, it is a form of objective or strict liability, or liability “without regard for culpability”. As far as
the scope and manner of compensation for such damage is concerned, the
general statutes of Civil Code about liability for damage are employed.182
As opposed to a bad faith possessor, the liability for a loss or eventual
deterioration of the movable is not regulated in the case of a good faith
possessor, which is accounted for mainly by the statutory principle provided
by the Civil Code: namely, that unless otherwise provided by law, the lawful
possessor has the same rights as the owner.183 The good-faith possessor thus
has all the main rights and powers constituting the ownership right (uti,
frui, possidere, disponere). In causal relation to the execution of his quasi
ownership title allowing loss, deterioration or even destruction of property,
the original owner cannot successfully claim damages from a good faith
possessor. The stated case cannot be subsumed under statutes regarding the
general liability for damage, according to Sec. 420 CC et seq., since one of
the basic elements of the liability construction according to this statute is
“unlawful action”.
Two mutually linked moments are decisive for judging a good faith
possessor: one is the moment when loss or deterioration has occurred; and
the other is the moment when the good faith possessor discovered that he /
she is not the owner of the property and, therefore, has become a bad faith
possessor not protected by law.
20.3.
Reimbursement for improvements and expenses
The lawful possessor has a claim for reimbursement of costs against the
owner, which the possessor reasonably incurred during the time of lawful possession, and to an extent corresponding to the appreciation of the
property on the day of its return. However, the customary costs (expenses)
of maintenance and operation shall not be refunded.184 “Customary costs
of maintenance” are costs that keep the property in a state fit for proper
usage and functioning according to its purpose, provided these costs do not
depreciate the property in any way.185 On the other hand, the costs that the
good faith possessor incurred for appreciation of the possessed property are
180
181
182
183
184
185
Plank, K.: Občianske právo s vysvetlivkami. Bratislava, 1996, 1997, p. 184.
Plank, K.: Občianske právo s vysvetlivkami. Bratislava, 1996, 1997, p. 182.
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estimated by comparing the state of the property at the moment of acquiring lawful possession and the state of the property on the day of its delivery
to the owner. It is important to emphasize that the comparison of the states
does not mean the delivery of all the costs, but only costs to the extent of
the possessed and delivered property.186
It is also appropriate to indicate the similarity of the claim of the possessor, vis-á-vis the owner, with the claim of ex unjust enrichment. These are,
however, individual and mutually unrelated claims regulated by individual
statutes of the Civil Code. Apart from its assumptions, the difference in
statutory regulation of these claims manifests itself e.g. in the length of the
statutory-barred period, when the possessor’s entitlement to costs reimbursement is statutorily barred by the “general” three-year statutory-barred
period, whilst the statutory-barred period for costs ex unjust enrichment is
regulated, by sec. 107 of CC, as a “particular” period.
The unlawful possessor may, pursuant to Sec. 131 para (1) of CC, deduct the costs (expenses) that were “necessarily” incurred, in connection
with the maintenance and operation of the property, from the amount of
compensation for any damage caused by the unlawful possession. The result
of the cited statutory provision is that the bad faith possessor is entitled to
deduct the stated costs but only to the extent that damage was incurred
by the owner due to the unlawful possession. A contrario, if damage was
not incurred by the owner in this manner, the unlawful possessor is not
entitled to reimbursement of these costs. On the other hand, the unlawful
possessor may also sever that part of the property that he appreciated at his
own expense, if this can be done without impairing the substance of the
property.187
20.4.
Possessor’s right to retain a movable
In the case of retaining a movable by the possessor to secure his pecuniary claim for reimbursement of the costs, which the possessor reasonably
incurred on the movable property during the time of lawful possession, visá-vis the owner, the Civil Code does not govern a particular right of lien
for the possessor. Under property law, it is possible to apply to this stated
case the general statutes on right of lien, such as the right in rem to alien
property pursuant to Sec. 151s of CC et seq., since it is a case of retaining
a movable asset to secure a pecuniary due claim (receivables).
A possessor, as a creditor in this case, has the right to secure his outstanding debt by retaining a debtor’s (owner’s) property, which will be held
186
187
Ibid, p. 183.
Sec. 131 para (1), (2) of CC.
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in his factual power until it is fully paid. It is however not allowed to retain
property possessed arbitrarily or craftily sequestered.188
If the unlawful (bad faith) possessor is aware that the property does not
belong to him / her and that there is no statutory reason (titulus) for his / her
possession, it would be a case of “arbitrary possession” of the property, if
the possessor retained possession despite his / her bad faith, i.e. arbitrarily,
the right to retain the property to secure his / her outstanding receivables no
longer belongs to him / her. Thus one could conclude that only the lawful
possessor is entitled to retain the owner’s movable to secure due claims for
reimbursement of costs, which the possessor reasonably incurred on the
property during the time of lawful possession.
20.5.
Expenses for the restitution of a movable to the owner
The Civil Code does not regulate the matter of restitution of expenses in
connection with the restitution of a movable to the owner (mainly the
question of who bears these expenses). In principle it can only come down
to two cases: a voluntary or an involuntary restitution may take place. The
question of “lawfulness of possession” or the “good faith of the possessor”
is not decisive, even though it is not entirely insignificant, mainly in the
case of a decision of a court when the parties could not agree or in the case
of involuntary restitution.
If it is a case of voluntary restitution, under the principle of “party autonomy” or “freedom of contact”, it is, above all, based upon the agreement
of both parties (owner – possessor) concerning who shall bear the costs of
restitution of a movable to the owner, or whether they shall bear the costs
together and in what ratio, etc. If no agreement is reached, upon the request of one of them, the decision will be made by court, bearing in mind
all the circumstances of the specific case. In this case, a voluntary restitution of property based on an effectual decision of court is not considered a
voluntary restitution.
In case of an involuntary restitution (after a valid conclusion of the
restitution proceedings), the objects shall be returned upon a valid or possibly an enforceable decision of the court, which places a duty on the possessor to surrender the property to the owner. We are of an opinion, that
the judicial dictum placing such a duty implies an obligation to bear all
the costs related to the fulfilling of this obligation (whether it is voluntary
or involuntary). Another interpretation would appear unreasonable and
contra bonos mores.
188
Sec. 151s of CC et seq.
www.sellier.de
Table of Literature
Bradáč, A., Fiala, J., Hába, J., Hallerová, A., Skála, M., Vitulová, N.: Věcná
břemena od A do Z. Linde, Praha, 2002.
Čič, M. et al: Komentár k Ústave Slovenskej republiky
(Constitution of Slovak Republic – Commentary). Martin 1997.
Fiala, J., Holub, M., Bičovský, J.: Občanský zákonník (Civil Code).
Linde, Prague 2006.
Knapp, V. et al.: Občanské právo hmotné (Material Civil Law),
Volume I. Prague, 1995,1997.
Knapp,V., Knappová, M., Švestka, J., Dvořák, J., Macková, A., Mikeš, J.,
Radvanová, S.: Občanské právo hmotné (Material Civil Law), Volume 1.
CODEX, Praha 1997.
Lazar, J. et al.: Občianske právo hmotné (Material Civil Law), Volume 1-2.
Bratislava, 2004, 2006.
Luby, Š.: Dejiny súkromného práva na Slovensku. Iura Edition, Bratislava 2002.
Luby, Š.: Základy všeobecného súkromného práva (Basics of General
Private Law). Heuréka, Šamorín 2002, 3. edition.
Ovečková, O. et al.: Obchodný zákon

National Reports on the Transfer of Movables in Europe: Volume 6

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