ro fr
universul juridic magazin

Sale and transfer of ownership right in terms of projects to develop a European Civil Code

This article seeks how the mechanism of the ownership right transfer by salepurchaseis conigured in various projects to unify the European private law. Three major systems of the ownership right transfer by sale-purchase can be identified in Europe. The titulus and modus theory is the system that necessarily implies the existence of two elements to operate the transfer of the ownership right: a valid title and an acquisition. In the French system the transfer of the ownership right by sale takes place by the mere consent (solo consensu) and simple formation of the contract (solo contractu). The German system implies the existence of the real agreement independently of the obligational contract, which has the sole purpose of the transfer of the ownership right. Most European projects to unify the private law remained silent regarding the mechanism of the ownership right transfer by sale. Even the projects to unify the European private law that directly addressed this issue such as: Code européen des Contrats, Study Group on a European Civil Code and the Draft Common Frame of Reference have chosen to only offer a solution regarding the transfer of ownership right in movables. Essentially it can be seen that the variations binding the transfer of the ownership right to the existence of a real-abstract contract according to the German pattern or a solo consensu transfer in which the contract generates both obligations and real effects according to the French pattern were avoided by all European projects. All these European projects essentially consecrate a system of transfer of the ownership right by sale based on two elements: the tradition and the valid existence of an acquisition title thus opting for a middle way. However, the proposed rules in these projects to unify the European civil law have a legal suppleness, meaning that the parties may choose any other method of transfer which I think best serves their interests.