The Purpose and Coherence of the Rules on Good Faith Acquisition and Acquisitive Prescription in the European Draft Common Frame of Reference: A Tale of Two Gatekeepers
30 Pages Posted: 29 Jan 2011 Last revised: 1 Apr 2011
Date Written: January 27, 2011
The drafters of Book VIII DCFR have consistently tried to formulate rules on the related topics of acquisitive prescription and good faith acquisition to further the underlying policy goals: where ordinary transfer has failed, good faith acquisition should instantly validate transfers a non domino if this is commercially desirable, supplemented by acquisitive prescription stepping in when legal certainty calls for validation at a later date. This article examines the coherence of the DCFR rules on these topics, and argues that several requirements for successfully invoking the rules on good faith acquisition and acquisitive prescription are not in accordance with their respective policy goals. The resulting incoherence implies that they will not be able to perform their role as ‘gatekeepers of ownership’ optimally.
Keywords: Good Faith Acquisition, European Property Law, Draft Common Frame of Reference
JEL Classification: K11
Suggested Citation: Suggested Citation