Jan Jakob Bornheim
Die Wirkung relativer dinglicher Rechte nach deutschem internationalen Sachenrecht
Jahrgang 79 (2015) / Heft 1, S. 36-71 (36)
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Relative Property Rights in German Conflict of Laws In this article, the author discusses the treatment of relative property rights in German conflict of laws. In civil law systems, particularly in German law, ownership and other property rights are usually described as rights good against the entire world. In this context, property rights are transferred by a legal act that is separate from the underlying obligation to transfer. In case of a transfer of ownership for example, the basic form of this separate legal act is the traditio. Modern traditio consists of two elements: First, the parties agree that title shall pass (subjective element). Second, a transfer of possession occurs (objective element). Ownership only passes after traditio has taken place. Consequently, these legal systems are said to follow the principle of traditionalism. Other civil law systems, particularly those within the Romance legal family, recognise a valid transfer of title on a contractual basis. Because title passes – albeit with relative effect – by virtue of the underlying contract alone, these countries are said to follow a principle of consensualism. However, relativity of transfer means that the effect of the consensual transfer does not create any effect against bona fide third parties. Nevertheless, the relative transfer affects the distribution of the incidents of ownership between the parties. It can also affect the distribution of a debtor's property in case of insolvency. In civil law, there is thus an inherent conflict between the absolute conception of property rights and these relative property rights. While common law also follows a consensual approach to transfer of title, this transfer is conceptualised as being absolute. However, title to a property interest is inherently relative, and absolute ownership is a concept unknown in common law based property law. Furthermore, both equity and modern legislation on secured transactions create positions that are structurally similar to the relative property rights of the Romance legal family. The author puts forward three claims. First, he argues that under German conflict of laws relative property rights can be recognised after the property in question has moved into Germany but before traditio has occurred, because while relative property itself might be unknown to German civil law, its effects are not entirely unlike the effects of other German legal concepts. Second, the author shows that the relative transfer of title suffices to meet the subjective elements of traditio. Third, where German or European law require a »transfer of ownership« or any other transfer of a property right to have occurred in the context of a primary or incidental question, relative transfer of title can be sufficient to fulfil this requirement.