Vliet, Lars van --- "Transfer of Movable Property" [2006] ELECD 218; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 67

Section Title: Transfer of Movable Property

Author(s): Vliet, Lars van

Number of pages: 8

Extract:

67 Transfer of movable property*
Lars van Vliet


1 The three main transfer systems
Many of the world's legal systems for the transfer of movable property fit
into one of three types of transfer system: the causal consensual system, the
causal tradition system and the abstract tradition system. Here two divid-
ing lines intertwine: the distinction between causal and abstract systems
and the distinction between consensual and tradition systems. As examples
we will look at the transfer of movable property in German, French,
English and Dutch law. The transfer using negotiable instruments and the
transfer by way of security will not be considered, nor will transfers which
require registration.
A causal transfer system (examples: Netherlands, Switzerland, Austria)
demands that the transfer be based on a valid legal ground, i.e., a legal
reason justifying the passing of ownership (iusta causa traditionis). In an
abstract system, on the other hand, the transfer is valid even if it is not based
on a valid legal ground. Under the influence of Savigny and his pupils,
German law opted for the abstract system. Other legal systems which use
an abstract transfer system for the transfer of movables are South African
law and Scottish law.
The sharp distinction between the extremes of causal and abstract
has been in existence only from the beginning of the 19th century.
In the learned law of the period from the rediscovery of the Digest up
to the beginning of the 19th century no consistent transfer theories can
be ...