Transfer of Property Inter Vivos
Chapter 7 in: Comparative Property Law: Global Perspectives, Research Handbooks in Comparative Law series, Edited by Michele Graziadei and Lionel Smith, 2017
38 Pages Posted: 18 Feb 2017 Last revised: 18 Jul 2017
Date Written: February 1, 2017
This chapter will give an overview of the various transfer systems for movable property and immovable property. It will focus on voluntary transfers based on a legal act between the transferor and transferee. First the difference between the unitary approach and the functional approach to passing of ownership will be discussed. Many legal systems have a default rule for the passing of ownership.It indicates when ownership passes, but allows parties to indicate a different moment. In principle this moment of passing of ownership is the reference point for many other legal questions. This approach is called the unitary approach. The opposite is the functional approach which does not wish to use the passing of ownership as a reference point. Within the unitary approach we can further distinguish between systems which in principle require a delivery (real or constructive) (tradition systems) and systems in which a contract of sale in principle passes ownership without delivery being needed (consensual systems). Within the tradition systems we can further distinguish between causal and abstract systems. Causal systems require a valid legal ground, such as a valid contract of sale. Abstract systems do not set this requirement and regard the validity of the transfer abstractly from the validity of the underlying legal ground.
Ideally, a land register should mirror the legal status of each parcel of land.However, many legal systems allow certain unregistered rights to be set up against bona fide third parties. In many of these systems leases, even if regarded as mere contracts, work against third parties. Often the buyer of a leased property is bound to the lease even if he did not know neither could have known about the lease.
The article focusses on German, French, English and Dutch law.
Keywords: transfer of movable and immovable property, transfer systems, causal transfer, abstract transfer, consensual transfer, transfer of bank money and financial instruments, cadaster, land register, mirror principle, land boundaries, title by registration, good faith, public faith
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