L.P.W. van Vliet

Maastricht University

Dept of Private Law

Article for Russian Yearbook of Comparative law 2008

Transfer of movable property in comparative perspective:

classification of transfer systems

1. Introduction

The law distinguishes between derivative and original acquisition of property. In the case of derivative acquisition one receives a right which previously belonged to someone else. When A sells his car to B and transfers ownership to B, the latter acquires a right of ownership that previously belonged to A. B does not acquire a new right of ownership but rather the same right that previously belonged to A. The same happens where B inherits A’s car. A’s right of ownership does not lapse but passes to B.

Original acquisition, on the other hand, is acquisition of a right which did not previously exist, which originates in the hands of the new owner or holder of the right. When, for example, B makes car parts from aluminium sheets belonging to A (specificatio), A or B (depending on the specific legal provisions) will become the owner of the newly created car parts which did not exist before. We use the term original acquisition also where the right of ownership of a principal thing is extended to cover a thing attached to the principal object. In these cases no new right of ownership is created. An example is the attachment of movable property to land in such a way that they become an integral part of the land (accessio). Examples are the attachment of buildings, irrigation or pumping systems.¹

Within derivative acquisition we can further distinguish between universal succession and singular succession. A universal successor succeeds in the predecessor’s entire estate or a proportionate part of it. Two examples are the heir, who acquires the entire deceased’s estate or a certain percentage of the estate, and, in the case of a merger of companies, the acquiring company. A singular successor, on the other hand, succeeds only in one or more particular things. The buyer who acquires ownership of the thing bought, is a singular successor.

The subject of this article is confined to the voluntary transfer of property by a legal act aimed at transferring the property, such as a transfer upon sale, thus leaving out transfer by operation of law, such as succession on death, or transfer by a court order in the case of expropriation. To use technical terms, the voluntary transfer by legal act is a case of derivative acquisition and singular succession. As a standard example we shall refer to the transfer upon sale.

2. The three main transfer systems

Many of the world’s legal systems for the transfer of movable property fit into one of three types of transfer system: the causal consensual system, the causal tradition system and the abstract tradition system. Here two dividing lines intertwine: the distinction between causal and abstract systems and the distinction between consensual and tradition systems. As examples we will look at the transfer of movable property in German, French, English and Dutch law. The transfer using negotiable instruments and the transfer by way of security will not be considered. Nor will transfers which require registration. For the transfer of immovable property the same transfer systems can be distinguished. The role of tradition, that is, transfer of possession, is here replaced by registration in the land register. As the technicalities of registration may obscure the way in which the transfer systems operate, we will in the following focus on movable property.

2.1. Causal and abstract systems²

A causal transfer system (examples: Netherlands, France, Switzerland, Austria) demands that the transfer be based on a valid legal ground, i.e. a legal reason justifying the passing of ownership (iusta causa traditionis in Roman terminology). To give an example, in the case of sale and transfer of a thing, the sales contract serves as the legal ground for the transfer of ownership. In an abstract system, on the other hand, the transfer is valid even if it is not based on a valid legal ground. Under the influence of Friedrich Carl von Savigny and his pupils, German law opted for the abstract system at the end of the 19^th century. At the end of the 19^th century it was codified in the German civil code.³ Other legal systems which use an abstract transfer system for the transfer of movables are, among others, South African law and Scottish law.

The sharp distinction between the extremes of causal and abstract has been in existence only from the beginning of the 19^th century. In the learned law of the period from the rediscovery of Justinian’s Digest up to the beginning of the 19^th century no consistent transfer theories can be found, let alone the terms abstract or causal transfer.⁴

2.2. Consensual and tradition systems⁵

In a consensual system a valid transfer of ownership in principle does not require any transfer or providing of possession (examples: French law and the English and Scottish law regarding the sale of goods).⁶ French law often calls this the “transferring effect of the obligations”. The obligation to transfer ownership executes itself immediately, so that ownership passes when the contract is made. If two parties enter into a contract of sale, the seller’s obligation to transfer ownership to the buyer is automatically executed. No additional legal act or formality is needed.

A tradition system, on the other hand, distinguishes between the underlying contract, e.g. the sale, and the legal act of transfer. Whereas in a consensual system the contract, that is, consensus between the parties, suffices (hence its name), in a tradition system the contract merely calls into being an obligation to transfer the thing sold. In the latter system ownership will pass only after the legal act of transfer and traditio have taken place. The Roman law term traditio means the transfer of possession.

As we shall see below, the division between consensual systems and tradition systems, although helpful for analytical purposes, is not as sharp as might seem at first glance. The existence of fictitious traditio (tradition by mere agreement) and exceptions to the requirement of traditio have reduced the difference between consensual and tradition systems to a distinction only of ius dispositivum. Handing over of the thing, although it is still the principal rule, is not compulsory. In both systems parties are able to let ownership pass when they think fit, provided the assets are specific and existing goods. Due to the principle of specificity ownership of generic goods cannot pass to the acquirer before the goods to be delivered to the acquirer have been ascertained and have thus become specific. Ownership of future goods cannot pass to the acquirer: the transfer will be effective only from the moment the asset has come into existence.