Vladyslava Panasovska (vlada.pan97@gmail.com)
LECTURE 4A: Transfer of land and Third Party Protection (II)
I. Third party protection. The right of disposal
› For valid transfer the person who transfer right of disposal is needed
Nemo plus iuris ad alium transferre potest, quam ipse habet (or: nemo dat
quod non habet)
› Strictly speaking: only the owner (or right holder) may transfer ownership
(or right)
› But another person may have the right to dispose of the thing (or right)
creditors
Third-party protection
› A transfer by a person without the right to dispose is invalid and the
intended transferee does not acquire the thing in question.
› German, French, English and Dutch law acknowledge that in certain
instances a transfer made by someone without the right to dispose is
regarded as valid.
› The rules and techniques differ, considerably.
Third-party protection: relevant elements:
- Good faith
- Possession
- Valuable consideration
- How owner lost possession
- Characteristics of seller
- Object in question
Case example 1
› A (transferor) sales and transfers ownership of the object to B (transferee),
later B sales and transfers the object to C (third party). After the transfer has
been made to C, A avoided the agreement. Can A revindicate his property
from C?
Dutch law:
› C is protected by art. 3:86 (1) DCC
Dutch law is tradition causal system so there should be
valid legal agreement between the parties.
avoidance of the sale agreement between A and B has
retroactive effect Art 3:53 BW.
,Vladyslava Panasovska (vlada.pan97@gmail.com)
Article 3:53 Effects of the nullification of a voidable juridical act
- 1. The nullification of a voidable juridical act has retroactive effect to the moment on which that
act was performed.
So, B was never the owner
Since the requirement of Article 3:84 BW are no longer
met, B never obtained ownership
So, C obtained object from someone who is in retrospect
was not the owner
Article 3:84 Requirements for a transfer
- 1. The transfer of property requires a formal delivery*) pursuant to a valid legal basis by the
person with power of disposition over that property.
Article 3: 86 BW third party protection only when it is
LACK OF DISPOSAL according to this article, there
must be:
1. Valid delivery of the object;
2. Consideration (sale, payment of purchase price);
3. Third party must be in good faith, so he believed that
B was the owner
Article 3:86 Lack of power of disposition (movable property and debt-claims to order or
bearer)
- 1. A transfer of a movable thing or of a debt-claim to order or to bearer in accordance with
Article 3:90, 3:91 or 3:93 by an alienator without power of disposition is nevertheless valid if the
transfer was not performed gratuitously and the acquiring party acted in good faith.
French law:
› France is causal consensual system
› C is protected by art. 2276 CC presumption that the
possessor has ownership
› C obtained the ownership despite the lack of right of disposal
of B
› Good faith of C is required;
Article 2276 CC:
As regards movables possession counts as title
Nevertheless, the person who has lost the object or from whom an object has been stolen is, up to
three years from the day of the loss or theft, able to revindicate the object from the person in whose
hands he finds it. This does not exclude the letter’s remedy against the person from whom he
obtained the object.
Article 2277
If the present possessor of a lost or stolen thing bought it at a fair or at a market, or in a public sale, or
from a merchant who sells the same things, the original owner cannot get the thing back without
reimbursing the possessor the price he paid to buy it.
, Vladyslava Panasovska (vlada.pan97@gmail.com)
The lessor who claims, under Article 2332, the movables which have been moved without his consent
and which have been bought in their same conditions, must likewise reimburse the buyer the price he
paid for them.
German law:
› Germany is traditional abstract system even if it is appeared
that the underlined agreement is void, it does not affect the
transfer provided there was a valid delivery and real agreement!
› no protection needed due to abstract system of transfer, or § 932
BGB
› sometimes the avoidance of the contract has effect on the real
agreement if there was no real agreement, there was no real
transfer between A and B in this case we can rely on the
general provision on the good faith acquisition § 932 BGB
Section 932
Good faith acquisition from a person not entitled
(1) As a result of a disposal carried out under section 929, the acquirer becomes the owner even if the
thing does not belong to the alienor, unless the acquirer is not in good faith at the time when under
these provisions he would acquire ownership. In the case of section 929 sentence 2, however, this
applies only if the acquirer had obtained possession from the alienor.
(2) The acquirer is not in good faith if he is aware, or as a result of gross negligence he is not aware,
that the thing does not belong to the alienor.
English law:
› C is protected by S23 SGA, provided he is in good faith and
without notice.
Section 23 Sale under voidable title.
When the seller of goods has a voidable title to them, but his title has not been avoided at the time of
the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and
without notice of the seller’s defect of title.
Case example №2
› A (transferor) sales and transfers ownership of the object to B (transferee),
later B sales and transfers the object to C, but the delivery occurs by way of
constitum possesoium. After the transfer has been made to C, A avoided the
agreement. Can A revindicate his property from C?
