Jakob Fortunat Stagl
Eigentumsübertragung beim Kauf beweglicher Sachen im DCFR und CESL
Volume 79 (2015) / Issue 1, pp. 1-35 (35)
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The Transfer of Ownership in Sales Contracts Concerning Movables under the DCFR and the CESL The article deals with the transfer of ownership in sales contracts under the DCFR and the CESL. Whereas the DCFR contains rules about the transfer of ownership the CESL does not, it even rejects the idea that it could regulate the transfer of ownership. Concerning the DCFR the task consists in evaluating whether the solution found in Book VIII is consistent with the rest of the codification, which is done by inferring the proper rules for the transfer of ownership from the remaining structure of codification just as one can infer the structure of a keystone from the architecture of a vault. The strict separation of property law and law of obligations as underlying the DCFR, for example, indicates the requirement of a 'real agreement' (dinglicher Vertrag) which is not abstract though, given the restrictive nature of avoidance for mistake. From the fact that the risk passes at the moment of delivery it is possible to infer the requirement of delivery for the transfer of ownership and be it as a default rule. If one compares the results of these logical operations with the solution found by the DCFR it appears that these provisions are proper insofar as they fit perfectly into the structure of the DCFR. Since the rules for the transfer of ownership are something like a keystone they are only proper relative to the remaining codification and not on absolute terms. The CESL, on the other hand, is only a slightly modified extract of the DCFR and, therefore, it shares its main characteristics. Accordingly it is possible to induce the same rules for the transfer of ownership as in the DCFR. Although these rules are not in force in the strict sense of the term, they are implied by the CESL and determine any future regulation in this matter. It could even be possible that the European Court of Justice raises these rules from their slumber and puts them into effect.