Evolution of Property Transfer in Roman Law

 
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Prof.ssa Letizia Coppo
 
A.A. 2022-2023
 
Cattedra di Diritto comparato
 
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The principle of translative consent was fully unknown to
classical Roman law, where the transfer of property could not
take place without an external and separate act of delivery.
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3
 
COMPARATIVE PROPERTY LAW
 
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The translative effect followed from the performance of a
formal act (modus), which had a different form depending on
the different kind of goods at stake:
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4
 
COMPARATIVE PROPERTY LAW
 
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The mentioned formal acts just eventually followed the sale
contract: as we said, the only obligation of the seller was to
transfer the possession of the good, not to perform such acts.
So, the buyer could acquire property:
either by one of those formal acts, which could transfer
property also in the absence of a prior title or when this latter
was invalid
or, following the title, through the continuous possession of the
goods until the expiry date of usucapion, meanwhile relying on
the warranty against eviction for the protection of its position.
 
 
 
 
5
 
COMPARATIVE PROPERTY LAW
 
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Gradually the 
traditio
 became the general way of acquiring
property and it was spiritualised (
traditio ficta
), i.e. the physical
delivery of the good was not necessary anymore for the
transfer of property.
The 
Corpus Juris 
codified the principle that the contract of
sale is a simple title or cause for the acquisition of property but
not the mode of acquisition.
 
 
 
 
 
6
 
COMPARATIVE PROPERTY LAW
 
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Intermediate law maintained the principle of the insufficiency
of the title and the separation between title and modus.
 
It analysed more in depth the relationship between the two
and held that the title (i.e. the contract of sale or donation or
exchange) creates and obligation to perform the 
modus
.
 
 
 
 
 
7
 
COMPARATIVE PROPERTY LAW
 
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In the period of jusnaturalism, France had developed a real
estate practice according to which the physical delivery of the
goods was not necessary anymore for the transfer of
property and was replaced with clauses providing that the
contract entailed the transfer of possession from the seller to
the buyer.
The jusnaturalists, with their dogma of will, theorised this by
claiming that the mere expression of will contained in the
agreement was enough to transfer property. This marks the
birth of the consensualistic principle.
 
 
 
 
 
8
 
COMPARATIVE PROPERTY LAW
 
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Jusnaturalism has influenced the Napoleon Code, which
codified the principle according to which the titulus is
also the modus for the transfer of property
(consensualistic principle), though with a rather
ambiguous formula (replaced with a clearer one after the
2016 reform).
This marks a divergence from Roman law.
The Napoleonic model was followed in Italy, Belgium,
Luxemburg, Portugal and Poland.
 
 
 
 
 
 
9
 
COMPARATIVE PROPERTY LAW
 
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The Germanic systems confirmed the Roman principle for which
the title alone is not enough to transfer property and, therefore,
the principle of the necessary separation between 
titulus
 and
modus
 (
principe de séparation
; 
Trennungsgrundsatz
).
The perpetuation of the Roman tradition did not depend upon
the faithfulness to Roman law or upon the ignorance of the
consensualistic principle adopted by the Napoleonic code, but
was justified by operational reasons. Scholarship believed that
the consensualistic principle was incapable of adequately
protecting the circulation of goods.
 
 
 
 
 
 
10
 
COMPARATIVE PROPERTY LAW
 
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The Prussian Code already distinguished between the
consensual contract that entitled the buyer to acquire
property (
Recht zur Sache
) and the real act of alienation,
which was the only way to perform the translative obligation.
 
The act of alienation was causal.
 
 
11
 
COMPARATIVE PROPERTY LAW
 
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The Austrian code (ABGB) of 1811 also adopted the Roman
solution: the consensual contract (
Verpflichtungsgeschäft
) creates
the obligation to give the goods, i.e. to transfer property, while the
performance of such obligation consists of an act which has its
cause in the title (
Verfügungsgeschäft
). Such act of performance is
a material act: for movables it is delivery; for immovables is the
inscription in the register.
The act of performance (
modus
), though, is a real, negotial, causal
and solutory act like the Roman 
traditio
.
The Austrian model has been adopted by the Swiss, Dutch and
Spanish models.
 
 
12
 
COMPARATIVE PROPERTY LAW
 
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The German civil code (BGB) refused both the Austrian model (i.e. the
combination between a title and  a causal modus) and the French model
(i.e. the consensualistic principle).
Instead, it upheld the principle according to which the modus is enough
for the transfer of property (the equal and opposite solution compared to
the French one). Translated into legal words, this means that the modus
is abstract (
Abstraktionsprinzip
), the modus (
Verfugungsgeschäft
) is an
effective tool for transferring property even in the absence of a prior title
or when the prior title exists but is invalid.
The 
Verfugungsgeschäft
 is similar to the Roman 
mancipatio
: a real and
abstract act of will (
negozio giuridico
) provided with translative effects.
 
13
 
COMPARATIVE PROPERTY LAW
 
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If the title does not exist or is invalid, the buyer has acquired property
(because the modus is enough) but will bear a restitutionary obligation,
i.e. the buyer cannot retain property but must return it to the seller. So, if
the existence or validity of the title is not necessary to acquire property, it
is nevertheless necessary to retain it.
If the buyer has already sold the goods to a third party, though, this latter
will be entitled to retain the property by virtue of the principle of
abstraction. The buyer’s obligation to give the property back to the seller
will be converted into a monetary obligation: he will have to pay the value
of the property.
 
14
 
COMPARATIVE PROPERTY LAW
 
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In the sales of movables normally the separation of 
titulus
 and 
modus
 is
not apparent, as the two acts are performed in the same time (agreement
and delivery of the goods).
In case the seller was not the owner of the goods, there is a provision in
the BGB protecting the right of property of third parties having acquired
property from the buyer in good faith.
In the sales of immovables it is the notary who drafts the modus and he
must ascertain the existence of the title, but this only to ascertain that the
seller was the owner (thus to avoid restitutionary obligations). Such
ascertainment is not extended to the validity of the title.
 
15
 
COMPARATIVE PROPERTY LAW
 
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The English real property or property in land comes from the Medieval
Norman feudal model. The pillar is the principle according to which the
land (and all that is attached to it) belongs to the king exclusively and
absolutely (ownership). Consequently, the rights of enjoyment of
individuals on the land are just the product of a royal grant (tenure).
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16
 
COMPARATIVE PROPERTY LAW
 
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The fundamental element of the tenure was and is the duration and the
content of the faculties and rights of enjoyment granted to the tenant.
Such duration, which could vary but is normally indefinite, is named
estate.
 
Also nowadays the regime of real estate revolves around a plurality of
estates with different contents and durations and on the conception that
the possession of goods does not imply absolute legal rights, but rather
relative legal situations.
 
 
 
17
 
COMPARATIVE PROPERTY LAW
 
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Movables (chattels) and immovables (real estates) follow different
regimes:
 
the transfer of property on movables follows, at least from an
applicative viewpoint, the consensualistic model;
 
the transfer of property on immovables, at least at law, consists
of two steps: the conclusion of a contract of sale (or other), which
obliges to a further translative act; and the conclusion of a deed
(i.e. solemn act) called conveyance in favour of the buyer.
 
 
 
 
18
 
COMPARATIVE PROPERTY LAW
 
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It may seem that the English regime for the transfer of
immovables follows the separation 
titulus
 and 
modus
. What
needs to be ascertained is whether this is only apparent
because the modus is abstract like in the German model) or if it
is real because the modus is causal like in the Austrian model.
 
But, before, we should add that, following the Land registration
act of 1925, a third step is required for immovables, i.e. the
registration of the deed. It is a constitutive publicity.
 
 
 
19
 
COMPARATIVE PROPERTY LAW
 
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At law, they apply the merger doctrine: the contract of sale only
creates the the obligation to transfer property through an act of
conveyance; it is after this deed and its registration that the real
estate is transferred and the buyer becomes the owner (owner at
law).
 
At equity, they apply the doctrine of conversion: the title does not
yet transfer property (the real estate) to the buyer but it transfers
an equitable interest to him. Thus, he becomes owner at equity
and he can benefit from a certain protection of his position.
 
 
 
 
20
 
COMPARATIVE PROPERTY LAW
 
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Such separation between equitable property and legal
property results in a constructive trust:
 
the seller who has concluded the sale but has not yet
concluded the deed and therefore still detains the legal
title is considered to be a trustee to the benefit of the
buyer, who, in this moment, has an equitable interest.
 
 
 
21
 
COMPARATIVE PROPERTY LAW
 
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As a matter of principle, means of production must belong to
the State (socialist State ownership). Their management is
committed to State enterprises provided with legal
personality and established for that specific purpose.
 
The main exception are agricultural means, the permanent
and free use of which has been granted to cooperatives of
peasants (socialist cooperative ownership).
 
 
 
 
22
 
COMPARATIVE PROPERTY LAW
 
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The goods produced by socialist cooperatives were
individual property of the peasants.
 
Houses could be the object of individual property, but the
widespread trend was that even the house was State
property and the inhabitants were just tenants. Multi-families
tenancies were also encouraged as it was a widespread
belief that individual families segregate persons from the rest
of society.
 
 
 
 
 
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COMPARATIVE PROPERTY LAW
 
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Email: 
l.coppo1@lumsa.it
lcoppo@univ-catholyon.f
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Comparative Property Law explores the evolution of property transfer in Roman law. In classical Roman law, property transfer required an external act of delivery. Over time, formal acts like mancipatio and traditio became common for property transfer. During the Justinian period, traditio became the primary method of acquiring property, no longer requiring physical delivery. The contract of sale served as a title, not a mode of acquisition.


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  1. Comparative Law Prof.ssa Letizia Coppo Cattedra di Diritto comparato A.A. 2022-2023

  2. Comparative property law

  3. COMPARATIVE PROPERTY LAW The transfer of property in the Roman law system The principle of translative consent was fully unknown to classical Roman law, where the transfer of property could not take place without an external and separate act of delivery. Emptio venditio (contract of sale) only produced obligatory effects, but those latter did not include the obligation to procure the acquisition of property. The only obligations arising from it were to transfer the mere possession of the goods (vacuum possessionem tradere) and to grant the buyer from eviction. Thus, this contract was just a title (titulus) for the transfer of property, but not a mode of transfer (modus). 3 Universit LUMSA

  4. COMPARATIVE PROPERTY LAW The transfer of property in the Roman law system The translative effect followed from the performance of a formal act (modus), which had a different form depending on the different kind of goods at stake: mancipatio: abstract and formal deed for transferring property on res mancipi; in jure cessio: the same but also applicable to res nec mancipi traditio: causal and informal act for transferring the ex jure Quiritium property of res nec manicipi and praetorian property of res mancipi. 4 Universit LUMSA

  5. COMPARATIVE PROPERTY LAW The transfer of property in the Roman law system The mentioned formal acts just eventually followed the sale contract: as we said, the only obligation of the seller was to transfer the possession of the good, not to perform such acts. So, the buyer could acquire property: either by one of those formal acts, which could transfer property also in the absence of a prior title or when this latter was invalid or, following the title, through the continuous possession of the goods until the expiry date of usucapion, meanwhile relying on the warranty against eviction for the protection of its position. 5 Universit LUMSA

  6. COMPARATIVE PROPERTY LAW The transfer of property in the Roman law system The Justinian period Gradually the traditio became the general way of acquiring property and it was spiritualised (traditio ficta), i.e. the physical delivery of the good was not necessary anymore for the transfer of property. The Corpus Juris codified the principle that the contract of sale is a simple title or cause for the acquisition of property but not the mode of acquisition. 6 Universit LUMSA

  7. COMPARATIVE PROPERTY LAW The transfer of property under intermediate law Intermediate law maintained the principle of the insufficiency of the title and the separation between title and modus. It analysed more in depth the relationship between the two and held that the title (i.e. the contract of sale or donation or exchange) creates and obligation to perform the modus. 7 Universit LUMSA

  8. COMPARATIVE PROPERTY LAW The transfer of property: the French model In the period of jusnaturalism, France had developed a real estate practice according to which the physical delivery of the goods was not necessary anymore for the transfer of property and was replaced with clauses providing that the contract entailed the transfer of possession from the seller to the buyer. The jusnaturalists, with their dogma of will, theorised this by claiming that the mere expression of will contained in the agreement was enough to transfer property. This marks the birth of the consensualistic principle. 8 Universit LUMSA

  9. COMPARATIVE PROPERTY LAW The transfer of property: the French model Jusnaturalism has influenced the Napoleon Code, which codified the principle according to which the titulus is also the modus for the (consensualistic principle), ambiguous formula (replaced with a clearer one after the 2016 reform). transfer though of property rather with a This marks a divergence from Roman law. The Napoleonic model was followed in Italy, Belgium, Luxemburg, Portugal and Poland. 9 Universit LUMSA

  10. COMPARATIVE PROPERTY LAW The transfer of property in the Germanic systems The Germanic systems confirmed the Roman principle for which the title alone is not enough to transfer property and, therefore, the principle of the necessary separation between titulus and modus (principe de s paration; Trennungsgrundsatz). The perpetuation of the Roman tradition did not depend upon the faithfulness to Roman law or upon the ignorance of the consensualistic principle adopted by the Napoleonic code, but was justified by operational reasons. Scholarship believed that the consensualistic principle was incapable of adequately protecting the circulation of goods. 10 Universit LUMSA

  11. COMPARATIVE PROPERTY LAW The transfer of property in the Germanic systems The Prussian Code already distinguished between the consensual contract that entitled the buyer to acquire property (Recht zur Sache) and the real act of alienation, which was the only way to perform the translative obligation. The act of alienation was causal. 11 Universit LUMSA

  12. COMPARATIVE PROPERTY LAW The transfer of property: the Austrian model The Austrian code (ABGB) of 1811 also adopted the Roman solution: the consensual contract (Verpflichtungsgesch ft) creates the obligation to give the goods, i.e. to transfer property, while the performance of such obligation consists of an act which has its cause in the title (Verf gungsgesch ft). Such act of performance is a material act: for movables it is delivery; for immovables is the inscription in the register. The act of performance (modus), though, is a real, negotial, causal and solutory act like the Roman traditio. The Austrian model has been adopted by the Swiss, Dutch and Spanish models. 12 Universit LUMSA

  13. COMPARATIVE PROPERTY LAW The transfer of property: the German model The German civil code (BGB) refused both the Austrian model (i.e. the combination between a title and a causal modus) and the French model (i.e. the consensualistic principle). Instead, it upheld the principle according to which the modus is enough for the transfer of property (the equal and opposite solution compared to the French one). Translated into legal words, this means that the modus is abstract (Abstraktionsprinzip), the modus (Verfugungsgesch ft) is an effective tool for transferring property even in the absence of a prior title or when the prior title exists but is invalid. The Verfugungsgesch ft is similar to the Roman mancipatio: a real and abstract act of will (negozio giuridico) provided with translative effects. 13 Universit LUMSA

  14. COMPARATIVE PROPERTY LAW The transfer of property: the German model Beware: the modus is abstract towards third parties but not towards the parties which formed the title. If the title does not exist or is invalid, the buyer has acquired property (because the modus is enough) but will bear a restitutionary obligation, i.e. the buyer cannot retain property but must return it to the seller. So, if the existence or validity of the title is not necessary to acquire property, it is nevertheless necessary to retain it. If the buyer has already sold the goods to a third party, though, this latter will be entitled to retain the property by virtue of the principle of abstraction. The buyer s obligation to give the property back to the seller will be converted into a monetary obligation: he will have to pay the value of the property. 14 Universit LUMSA

  15. COMPARATIVE PROPERTY LAW The transfer of property: the German model Further remarks: mitigations of the abstraction principle In the sales of movables normally the separation of titulus and modus is not apparent, as the two acts are performed in the same time (agreement and delivery of the goods). In case the seller was not the owner of the goods, there is a provision in the BGB protecting the right of property of third parties having acquired property from the buyer in good faith. In the sales of immovables it is the notary who drafts the modus and he must ascertain the existence of the title, but this only to ascertain that the seller was the owner (thus to avoid restitutionary obligations). Such ascertainment is not extended to the validity of the title. 15 Universit LUMSA

  16. COMPARATIVE PROPERTY LAW Property in common law: the English model The English real property or property in land comes from the Medieval Norman feudal model. The pillar is the principle according to which the land (and all that is attached to it) belongs to the king exclusively and absolutely (ownership). Consequently, the rights of enjoyment of individuals on the land are just the product of a royal grant (tenure). Free tenure or freehold: it was the tenure granted by the king to a nobleman Unfree tenure: it was the tenure granted by a landlord to a vassal who was under a condition of servitude. It was the case for peasants, who were obliged to cultivate the lands belonging to the lord of the manor and could receive from him in exchange a piece of land for their own profit. 16 Universit LUMSA

  17. COMPARATIVE PROPERTY LAW Property in common law: the English model The fundamental element of the tenure was and is the duration and the content of the faculties and rights of enjoyment granted to the tenant. Such duration, which could vary but is normally indefinite, is named estate. Also nowadays the regime of real estate revolves around a plurality of estates with different contents and durations and on the conception that the possession of goods does not imply absolute legal rights, but rather relative legal situations. 17 Universit LUMSA

  18. COMPARATIVE PROPERTY LAW The transfer of property in the English model Movables (chattels) and immovables (real estates) follow different regimes: the transfer of property on movables follows, at least from an applicative viewpoint, the consensualistic model; the transfer of property on immovables, at least at law, consists of two steps: the conclusion of a contract of sale (or other), which obliges to a further translative act; and the conclusion of a deed (i.e. solemn act) called conveyance in favour of the buyer. 18 Universit LUMSA

  19. COMPARATIVE PROPERTY LAW The transfer of property in the English model It may seem that the English regime for the transfer of immovables follows the separation titulus and modus. What needs to be ascertained is whether this is only apparent because the modus is abstract like in the German model) or if it is real because the modus is causal like in the Austrian model. But, before, we should add that, following the Land registration act of 1925, a third step is required for immovables, i.e. the registration of the deed. It is a constitutive publicity. 19 Universit LUMSA

  20. COMPARATIVE PROPERTY LAW The transfer of property in the English model At law, they apply the merger doctrine: the contract of sale only creates the the obligation to transfer property through an act of conveyance; it is after this deed and its registration that the real estate is transferred and the buyer becomes the owner (owner at law). At equity, they apply the doctrine of conversion: the title does not yet transfer property (the real estate) to the buyer but it transfers an equitable interest to him. Thus, he becomes owner at equity and he can benefit from a certain protection of his position. 20 Universit LUMSA

  21. COMPARATIVE PROPERTY LAW The transfer of property in the English model Such separation between equitable property and legal property results in a constructive trust: the seller who has concluded the sale but has not yet concluded the deed and therefore still detains the legal title is considered to be a trustee to the benefit of the buyer, who, in this moment, has an equitable interest. 21 Universit LUMSA

  22. COMPARATIVE PROPERTY LAW The concept of property in the socialist model As a matter of principle, means of production must belong to the State (socialist State ownership). Their management is committed to State enterprises personality and established for that specific purpose. provided with legal The main exception are agricultural means, the permanent and free use of which has been granted to cooperatives of peasants (socialist cooperative ownership). 22 Universit LUMSA

  23. COMPARATIVE PROPERTY LAW The concept of property in the socialist model The individual property of the peasants. goods produced by socialist cooperatives were Houses could be the object of individual property, but the widespread trend was that even the house was State property and the inhabitants were just tenants. Multi-families tenancies were also encouraged as it was a widespread belief that individual families segregate persons from the rest of society. 23 Universit LUMSA

  24. Prof.ssa Letizia Coppo Email: l.coppo1@lumsa.it lcoppo@univ-catholyon.fr

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