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

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