The conflict between the legal interests of the original owner and the good faith acquirer of movables - a comparative overview of the solutions

Author:Dimitar Stoyanov
Position:PhD Candidate, Assistant at Civil Law at the Department of Law by the New Bulgarian University, Sofia. (e-mail: dimitarstoyanov2011@gmail.com)
Pages:93-107
SUMMARY

The present article compares the legal rules on the good faith acquisition of movables in various national legislations of both Member states and countries outside the EU, in order to analyze the differences of the three major types of legal approach towards this means of original acquisition of ownership over movables. It is underlined that the existing diversity in the regulation can cause... (see full summary)

 
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LESIJ NO. XXII, VOL. 1/2015
THE CONFLICT BETWEEN THE LEGAL INTERESTS
OF THE ORIGINAL OWNER AND THE GOOD FAITH
ACQUIRER OF MOVABLES A COMPARATIVE
OVERVIEW OF THE SOLUTIONS
Dimitar STOYANOV*
Abstract:
The present article compares the legal rules on the good faith acquisition of movables in various
national legislations of both Member states and countries outside the EU, in o rder to analyze the
differences of the three major types of legal approach towards this means of original acquisition of
ownership over movables. It is underlined that the existing diversity in the regulation can cause serious
difficulties when multiple jurisdictions are concerned. One of the solutions to this issue is the
unification of these rules at the EU level. The provisions of Book VIII, art.3:101 of the Draft Common
Frame of Reference provide a solid foundation for this unification and may help to solve cross-border
cases in a more efficient and just manner.
Keywords: ‘nemo plus iuris’ principle, good faith acquisition, original owner, bona fide
acquirer, transfer of movables, comparative legal research, Draft Common Frame of Reference.
Introduction: *
Due to its great importa nce for the
security of transactions, there is hardly a
major legal system that doesn’t contain any
rules o n the good faith a cquisition of
movables as well as the protection of the
rights of the deprived original owner. The
legislations of the particular Member states,
as well as other countries outside the
European Union are not coherent and they
differ in the solution of the arisen legal
conflict, taking a different approach to the
Roman principle ‘nemo plus iuris ad alium
transferre potest quam ipse habet’. Either
the deprived owner or the bona fide acquirer
(or sometimes even both sides) must bear the
risk of losing their rights. The interests o f
commercial transactions and the
* PhD Candidat e, Assistant at Civi l Law at the Depa rtment of Law by th e New Bulgarian Uni versity, Sofia.
(e-mail: dimitarstoyanov2011@gmail.com).
liberalization of the market normally favor
the bona fide acquirer, while even the basic
notion of justice is offended by the idea that
the owner of a movable could be deprived of
it, so metimes eve n against hi s will, simply
because someone has disposed with it. Of
course, if the acquirer kno ws or under the
specific circumstances of the case should
have known that he is d ealing with a non-
owner or a person not bein g entitled to
transfer the movable, every major legal
system unambiguously protects the deprived
owner, thus preventing the loss of his rights
in rem. Much more complicated to solve are
those situations where the acquirer is in good
faith and the transferor, who has disposed of
the movable, is holding it with the consent of
its owner.
It is possible to divide the major
contemporary national legislations into three

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