Transfer of Property
13 Pages Posted: 19 Jan 2010
Date Written: January 15, 2010
In a market economy transfers of property are effectuated voluntarily by both parties to the transaction; legally speaking, they are based upon a contract. Contractual transfers of property, therefore, are located at the cross roads of contract and property, and this feature creates one of the major challenges for legal regulation.
This study addresses the transfer of property in corporeal movables in Europe, thus excluding transfers of immovables as well as transfers of intangibles, such as the assignment of monetary claims (or debts). It discusses three issues: The first and most basic dichotomy exists as to the fundamental requirements that must be fulfilled in order to transfer property. The second issue is whether the necessary consent resides in, or is to be derived from, the primary contractual relationship between the parties, for example a contract of sale. A third issue arises in the countries which separate the underlying contract and the transfer of property: What is the relationship between the two contracts? In particular, does the invalidity of the underlying contract automatically invalidate the agreement to transfer property? Or does the latter, in general, stand on its own feet? The first solution is designated as the principle of causality, while the second expresses a principle of abstraction.
Keywords: European private law, contract law, European civil code, property law
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